Karnataka

Kolar

CC/62/2014

Sampath Kumar.A - Complainant(s)

Versus

The Manager,TVS Credit Service Limited,& Ors - Opp.Party(s)

Suman.K

26 Aug 2015

ORDER

Date of Filing: 11/12/2014

Date of Order: 26/08/2015

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 26^th DAY OF AUGUST 2015

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO: 62 OF 2014

Sampath Kumar. A,

Aged About 32 Years,

Occu: Press Reporter,

R/at: No.71, Varlakonda Village,

Gudibande Taluk,

Chikkaballapur District.

 

(Rep. by Sriyuth. K. Suman &

Sriyuth. Somashekhar.R, Advocate)                      ….  Complainant.

 

- V/s -

1) The Manager,

For TVS Credit Service Limited,

Jayalakshmi Estates, No.29, Haddows Road,

Nungambakkam, Chennai-600 006.

(Rep. by Sriyuth. Chandrashekar S.N, Advocate)

 

2) The Proprietor,

Priyanka Automobiles,

Authorised Dealer for TVS

Motor Company, Near Shaneswara

Temple, B.B. Road, Chikkaballapura,

Pin-562 101.

 

(Rep. by Sriyuth. M.P. Narayanaswamy, Advocate)  …. Opposite Parties.

-: ORDER :-

BY Sri. N.B. KULKARNI, PRESIDENT

01.   The complainant having submitted this complaint Under Section 12 of the Consumer Protection Act, 1986, has sought relief of issuance of directions to the OP Nos.1 & 2 to handover the complainant’s vehicle (as per Memo dated: 24.08.2015 as submitted by the learned counsel appearing for the complainant and the OP-1 respectively, the motorcycle styled as “TVS Sport bearing registration No.KA-40-V8899) after receiving the balance amount of Rs.25,015/- or for issuance of directions to the Ops to take back the defective vehicle and to hand over the new good conditioned vehicle, as well, compensation of Rs.1,00,000/- for deficiency of service on account of mental torture and agony and spending of huge expenses together with costs.

 

02.   The facts in brief:-

It is contention of the complainant that, the OP-1 was the financier, whereas, OP-2 was the dealer with regard to sale of the said two wheeler in his favour.  It is contended that, the said two wheeler valued at Rs. 40480/- came to be sold (on 30.08.2014 as per documents on record) by the OP-2 who was under obligation to procure free insurance.  And that he had made cash payment of Rs.20,700/- to the OP-2 on the said day.  And that for the remaining amount of Rs.20,100/- + registration charges of Rs.4,735/- + other expenses of Rs.500/-, i.e., total sum of Rs.25,015/-, on approach being made the OP-1 came forward to finance on hire purchase basis.

 

(a)    Further it is contended that, the Ops did not handover the documents to him.  And that OP-2 had issued temporary hand written sale slip mentioning the amount totally as in a sum of Rs.49,145/-.  Thus the remaining amount came to Rs.28,415/- on hire purchase basis from OP-1.  And that OP-1 did not handover any hire purchase documents.  And that this resulted in deficiency of service.

 

(b)    Further it is contended that, he had lodged a complaint before PSI, of Chikkaballapura Town Police Station on 18.10.2014.  And that his claim was turned down on a contention that, the dispute was civil in nature.

 

(c)    Further it is contended that, OP-1 seized the said vehicle and got issued false notice showing imaginary loan amount (as per the documents on record seizure was on 29.10.2014).  And that he had replied through his counsel requesting to handover the said vehicle including hire purchase documents.  But the OP-1 did not comply. 

 

(d)    It is also contended that, while OP-2 sold the said vehicle it was promised that, the said vehicle was to give mileage of 87.7 kilometer per liter, whereas such a mileage was only of 50 kilometer per liter.  And that the said vehicle emitted heavy smog.  And that the defects were made known to the OP-2 who did not care to repair it properly.

 

(e)    Further it is contended that, OP Nos.1 & 2 did collude each other to cause loss to him.  And that such a seizure on the part of the OP-1 was without prior notice.  And that he is ever ready to pay the remaining sale consideration.  So contending the complainant has come up with this complaint on hand to seek above set out reliefs.

 

(f)     Along with the complaint with list dated: 11.12.2014 the complainant has submitted the following nine documents:-

(1) Xerox copy of cash receipt

(2) Xerox copy of Sale receipt

(3) Xerox copy of registration fee of vehicle

(4) Xerox copy of new paper advertisement

(5) Xerox copy of finance copy

(6) Xerox copy of complaint two in numbers

(7) Xerox copy of seizing letter

(8) Xerox copy of acknowledgement

(9) Xerox copies of notices two in numbers.

 

03.   After issuance of notices, both the Ops have put in their appearance through their said learned counsel.

 

04.   The OP-1 has submitted written version contending that, the present litigation is outside the scope of Consumer Protection Act, 1986.  Further it is contended that, for purchase of the said vehicle on the part of the complainant from the OP-2 it (OP-1) lent money in sum of Rs.37,000/- vide agreement dated: 08.09.2014 bearing No.KA3009TW53487.  And that in spite of several demands the complainant did not even pay the single installment.  And that, as such notice dated: 20.10.2014 came to be issued calling upon the complainant to make payment in sum of Rs.44,700/-.

 

(a)    Further it is contended that it did repossess the said vehicle on 29.10.2014 regarding which letter dated: 30.10.2014 came be issued and the same was served on the complainant on 08.11.2014.  Further it is specifically contended that as on 06.02.2015 the complainant remained in arrears of Rs.45,810/- regarding which a letter has been issued.  Further it is also pleaded that, it being the creditor and the complainant being the debtor the complainant was not at all a consumer so as to invoke the provisions of the Consumer Protection Act, 1986.  Thus dismissal of the complaint with compensatory costs has been sought.

 

05.   The OP-2 has put in written version resisting the claim of the complainant in toto.  Further it is admitted that with regard to the said complaint before the said police station that was submitted on 18.10.2014 it was rightly endorsed that, the dispute in question was civil in nature.  There is a denial of the contention that the said vehicle was assured of the contended mileage of 87.7 kilometer per liter whereas in reality such mileage was only 50 kilometer per liter.  There is denial of contended collusion between it and the OP-1. 

 

(a)    Specifically it is pleaded that on 25.09.2014 the complainant had brought the said vehicle for free service which was attended and at that time he had not raised any complaint with regard to the said vehicle.

 

(b)    Further it is contended that, it was not within it knowledge about the contended seizure of the said vehicle.  Thus dismissal of the complaint with exemplary costs has been sought.

 

06.   The very complainant has submitted his affidavit evidence, on behalf of the OP-1 Sri.N.K. Ashok Manager Legal has submitted his affidavit evidence and with list dated: 10.06.2015 following six documents have been submitted:-

(i) Copy of letter of authority

(ii) Copy of the notice dated: 20.10.2014

(iii) Copy of the letter dated: 30.10.2014 along with postal receipt and acknowledgement.

(iv) Copy of the loan agreement dated: 08.09.2014

(v) Copy of the fore-closure letter

(vi) Copy of the presale notice along with postal

 

07.   On behalf of the OP-2 Sri.C. Narasimhamurthy has submitted his affidavit evidence and with Memo dated: 11.08.2015 following Xerox copy of the documents have been submitted:-

(i) Xerox copy of the tax invoice dated: 30.08.2014

(ii) Xerox copy of the tax invoice dated: 04.10.2014

(iii) Xerox copy of the insurance

(iv) Xerox copy of the Extended warranty registration Form

(v) Xerox copy of Minor/repeat job card

(vi) Xerox copy of Tax invoice dated: 25.09.2014.

 

08.   The learned counsel appearing for the complainant has submitted written arguments with Memo dated: 24.08.2015 he has submitted copies of following two citations (i) judgment dated: 14.11.2011 of the Hon’ble Supreme Court of India in Civil Appeal No.9711/2011, (ii) Judgment dated: 30.01.2014 as passed by the Hon’ble State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow, in appeal No.2780/2012.

 

09.   The learned counsel appearing for the OP-1 has submitted written arguments and with Memo dated: 07.08.2015 has submitted Xerox copies of following two citations:

i) 11 (2012) CPJ 8 (SC)

ii) 2012(1) CPR 295

        Besides the counsel appearing for the OP-1 has submitted Memo on 24.08.2015 as noted above, which do reveal that the said vehicle is presently in the custody of Manjunath Gowdar. H.S. Garden, Maruthi Badavane, Chikkaballapur Town.

 

10.  The learned counsel appearing for the OP-2 has submitted written arguments on 07.08.2015.

 

11.   On 24.08.2015 heard the oral arguments as advanced by the learned counsel appearing for both sides.

 

12.   Therefore the points that do arise for our consideration in this case are:-

1.   Whether the complainant can be considered as a Consumer as against these Ops so as to maintain the complaint as per the provisions of the C.P. Act, 1986?

2.   If so, whether Ops could be held guilty of deficiency in service with regard to the said two wheeler bearing registration No. KA-40-V-8899?

3.   To what relief the complainant is entitled to?

4.   What order?

 

13.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT No.1:  In the Affirmative

 

POINT No.2:  Affirmative with regard to OP-1 and no need to consider with regard to OP-2.

 

POINT No.3: The complainant is held entitled to refund of said sum of Rs.20,700/- together with interest @ 9% p.a. from 29.10.2014 till realization, as well, compensation of Rs.25,000/- together with interest @ 9% p.a. from 11.12.2014 being the date of the complaint till realization, for being recovered from the OP-1 only.

 

POINT No.4:    As per the final order

    For the following:-

 

REASONS

POINT No.1:-

11.   The learned counsel appearing for the OP-1 has placed reliance and principles enunciated II (2012) CPJ 8 (SC) and 2012 (1) CPR 295 to maintain that as the OP-1 was the financier and the complainant had taken the said vehicle on hire purchase basis this Forum lacks jurisdiction.

 

(a)    As against the said submissions the learned counsel appearing for the complainant has placed reliance on principles enunciated in Civil Appeal No.9711/2011 judgment dated: 14.11.2011 as passed by the Hon’ble Supreme Court of India and Judgment dated: 30.01.2014 as passed by the Hon’ble State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow, in Appeal No.2780/2012 to maintain that even in the presence of such relationship under the hire purchase agreement when the financier has committed deficiency in service the complainant can very well approach this Forum and it has every jurisdiction as per the provisions of the C.P. Act, 1986.  That decision of the Hon’ble Supreme Court as relied by the counsel appearing for the complainant is of larger bench when compared to the decision of the Hon’ble Supreme Court as relied by the learned counsel appearing for the OP-1.  Therefore we are of the definite opinion that, even in the context of the present case the complainant is necessarily a consumer and he can very well raise the dispute as per the provisions of the C.P. Act, 1986.  Besides this forum suo-motu has placed reliance on I (2015) CPJ 9B (CN) (Guj.).  As per the principles enunciated in this citation even under the Hire Purchase Agreement if extra rate is charged it would amount to deficiency in service besides being unfair trade practice.

 

(b)    For the reasons we are to assign here after it would be crystal clear that the OP-1 is not only resorted to unfair trade practice because of the contradictory claims with regard to the financial assistance extended and the outstanding liabilities, it has also hastened to seizing the said two wheeler even before ascertaining the actual liability of the complainant.

 

POINT 2 & 3:-

12.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    it is indisputable as per the brouchure issued by the OP-2 that this particular two wheeler styled as TVS Sport at the relevant time was to carry price of Rs.40,480/-  as rightly pleaded by the complainant.  As per the cash receipt issued on 30.08.2014 the complainant had made cash payment of Rs.20,700/- to the OP-2.  Therefore as rightly contended by the complainant the financial assistance that was to be rendered by the OP-1 was bound to be confined to sum of Rs.25,015/- in as much as Rs.20,100/- was the balance consideration and towards registration charges sum of Rs.4,735/- was to be paid and towards other expenses sum of Rs.500/- was to be paid.  Thus there could be no occasion for the complainant to seek financial aid for purchase of the said two wheeler in excess of Rs.25,059/-.

 

(b)    No doubt, we are aware that the said financial aid in the form of loan was bound to carry certain rate of interest.  The OP-1 is tight lipped as to what was the rate of interest for the said loan.  Even otherwise we can palpably see unbelievable contradictions with regard to the contended financial assistance extended by the OP-1 in favour of the complainant.  In Para-5 of the written version the contended financial assistance given to the complainant was in a sum of Rs.37,000/- for which there was loan agreement bearing No.KA3009TW53487, which had taken place on 08.09.2014.  Why this figure of Rs.37,000/- came in to being in the presence of felt need which was bound to be in a sum of Rs.25,095/- is not explained by this OP-1.

 

(c)    Very surprisingly in para-7 of the written version it is contended that, notice dated: 20.10.2014 was attempted on the complainant claiming balance of Rs.44,700/-.  It was up to the OP-1 to explain through necessary evidence as to how the liability of Rs.37,000/- vide agreement dated: 08.09.2014 came to be shown up to Rs.44,700/- by 20.10.2014?

 

(d) Further pleading maintained in Para-12 of the written version on the part of this OP-1 would indicate that the dues as on 06.02.2015 came to Rs.45,810/-.  What was the basis to claim this figure has remained enigmatic. 

 

(e)    If by going through the very document at serial No.1 of list of documents dated: 10.06.2015, it would disclose that, Rs.37,000/- came to be given as financial aid to the complainant by way of loan that was repayable in 24 EMIs of Rs.2,060/-.  If this to be believed the dues would be Rs.49,440/-.  Thus the ultimate dues would be Rs.49,440/-.  This cannot be a proper approach, for, in Para-5 of this very document dated: 20.10.2014, the dues claimed are in sum of Rs.44,700/-.  How come this figure?  Thus again the OP-1 has not come up with clean hands so as to convince this forum with regard to the dues.

 

(f)     The matter does not seize only to the said developments.  As per the copy of the contended letter of authority dated: 29.10.2014 as produced by the complainant to substantiate the seizure the claimed amount is in a sum of Rs.52,000/-.  Again a reckless claim preferred by the OP-1 come what may.

 

(g)    Therefore reiterating as to what we had observed in the beginning, we are to state that the very OP-1 is not at concrete with regard to the quantum of financial assistance given to the complainant including the rate of interest agreed for being levied.  This would make us convinced that, the OP-1 has literally exploited the complainant without being certain itself with regard to the quantum of financial assistance given.

 

(h)    At any rate we are not convinced that the contended financial assistance was bound to be to the tune of Rs.37,000/- even when the felt need for such financial assistance was bound to be restricted to RS.25,015/- as contended by the complainant.

 

(i)     True, the complainant has made claim for re-entrustment of the said vehicle as he is ready and willing to pay the contended sum of RS.25,025/- or in the alternatively for the new vehicle itself.  Somehow to our mind this kind of alternative relief does not seem reasonable including the claim of Rs.1,00,000/- towards deficiency in service.

 

(j)     Therefore we are of the definite opinion that in the very better interest of the complainant he is entitled to refund of Rs.20,700/- that was paid by the complainant to the OP-2 on 30.08.2014 in as much as in view of OP-1 coming forward to extend financially is bound to be a deemed payment to this OP-1, which amount to carry interest at due rate of 9% p.a. from 29.10.2014 being the date of seizing of the said vehicle, till realization.  Besides for foregoing reasons, certainly for no fault of his, this complainant has suffered deficiency of service and hence we quantify that he is entitled to compensation of Rs.25,000/- together with interest @ 9% p.a. from 11.12.2014 being the date of the complaint till realization.  Hence the findings on these points.

 

POINT No.4:-

13.   We proceed to pass the following:-

 

ORDER

01.   For foregoing reasons, the complaint stands allowed with costs of Rs.3,000/- as against OP-1 only as hereunder and stands dismissed with no costs as against the OP-2 being a formal party :-

(a) The complainant is held entitled to refund of Rs.20,700/- together with interest @ 9% pa from 29.10.2014 till realization, as well, compensation of Rs.25,000/- together with interest @ 9% p.a. from 11.12.2014 till realization for being recovered from the OP No.1.

(02)  Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 26^th DAY OF AUGUST 2015)

 

 

 

 

MEMBER                             MEMBER                 PRESIDENT