BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION-HYDERABAD
FA.No.961/2005 AGAINST C.D.NO.114/2004, DISTRICT CONSUMER FORUM, PRAKASAM AT ONGOLE.
Between-
1. The General Manager,
Ashok Leyland Finance Limited,
86, Chambers Road,
Chennai-600 018.
2. Branch Manager,
Ashok Leyland Finance Limited,
89, G.N.Chetty Road,
T.Nagar, Chennai-600 017.
3. Branch-in-charge,
Ashok Leyland Finance Limited,
Rahman Buildings,
1st floor, Near Nava Bharath Theatre,
Old Guntur Road, Ongole. … Appellants/
Opposite parties
And
Tikkavarapu Venkata Rami Reddy,
S/o.Radha Krishna Reddy,
R/o.Pakala, Prakasam District. ..Respondent/
Complainant
FA.No.144/2006 AGAINST C.D.NO.114/2004, DISTRICT CONSUMER FORUM, PRAKASAM AT ONGOLE.
Between-
Tikkavarapu Venkata Rami Reddy,
S/o.Radha Krishna Reddy,
R/o.Pakala, Prakasam District. ..Appellant/
Complainant
AND
1. The General Manager,
Ashok Leyland Finance Limited,
86, Chambers Road,
Chennai-600 018.
2. Branch Manager,
Ashok Leyland Finance Limited,
89, G.N.Chetty Road,
T.Nagar, Chennai-600 017.
3. Branch-in-charge,
Ashok Leyland Finance Limited,
Rahman Buildings,
1st floor, Near Nava Bharath Theatre,
Old Guntur Road, Ongole. … Respondents/
Opposite parties
Counsel for the Appellant- Mr.A.Rajendra Babu
Counsel for the Respondent - Mr.K.Maheswara Rao
QUORUM- THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, MEMBER
AND
SRI G.BHOOPATHI REDDY, MEMBER.
FRIDAY, THE EIGHTEENTH DAY OF JULY,
TWO THOUSAND EIGHT
Oral Order-(Per Smt.M.Shreesha, Hon’ble Member)
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Aggrieved by the order in C.D.No.114/2004 on the file of District Forum, Prakasam at Ongole, opposite parties preferred F.A.No.961/2005 and dissatisfied with award, the complainant preferred F.A.No.144/2006. Since both appeals arise out of a similar order, they are being disposed by a common order.
The brief facts as set out in the complaint are that opposite parties are running a business under the name and style of Ashoka Leyland Finance Ltd. One M/s.Balaji Hardware purchased a vehicle by availing finance facility and hypothecated the vehicle bearing No.TN 07/F 6717. When the said Balaji Hardwares committed default, opposite parties seized the vehicle and offered to sell the same. The complainant and the opposite parties entered into an agreement, according to which the complainant paid an amount of Rs.1,60,000/- towards full and final settlement of the loan account of M/s.Balaji Hardware and also paid Rs.20,000/- for transferring the RC and other incidental expenses. Opposite parties corresponded with the Regional Transport Authority of Chennai and Ongole for transferring the vehicle. The complainant submitted that he made repairs to the above said vehicle like tinkering, painting and tyre rebutting and spent Rs.25,000/- for that purpose as suggested by the opposite parties. The complainant submitted that he paid an amount of Rs.7453/- in March, 2004 towards insurance premium. It is the case of the complainant that he made repeated demands to the opposite parties to transfer the vehicle and deliver possession and they transferred the same on 17-3-2004 to Regional Transport Authority, Ongole. The complainant submitted that he paid the entire amount, whenever opposite parties demanded without raising any objection and without making any delay. Even till today, the vehicle was not delivered and the opposite parties kept the vehicle in their yard and did not allow the complainant to see it or check its condition. The complainant submitted that he spent more than Rs.20,000/- for travelling and boarding expenses and the vehicle of the model of 1997 was kept idle since 1988. Therefore, the complainant got issued a legal notice to the opposite parties and they did not choose to reply. Hence the complaint for a direction to the opposite parties to pay an amount of Rs.2,32,453/- paid by him together with interest at 24 percent p.a. from 27-3-2000 till the date of realization, compensation of Rs.10,000/- per month from April, 2002 to 2004, Rs.4,90,000/- till realization and Rs.50,000/- towards mental agony.
Opposite parties 1 to 3 filed counter stating that the complainant’s admissions and date of transaction and that the entire transactions is barred by law of limitation. They submitted that as per the terms and conditions of the agreement in between Balaji Hardware and opposite party company, it is clear that any disputes arising out of the contract shall be referred to an arbitrator, who shall be appointed at the choice of the opposite parties and the venue of such arbitration shall be at Chennai. They submitted that the complainant has not approached the Forum with clean hands and submitted that the complainant has undertook in writing to take the responsibility of all RTO formalities including transfer of RC vide letter dated 27-5-2000. The entire transaction is commercial in nature and the registration certificate reads for itself regarding the same and therefore the complainant does not come under the definition of ‘consumer’ and prayed to dismiss the complaint.
Based on the evidence adduced i.e. Exs.A1 to A13 and B1 to B4 and the pleadings put forward, the District Forum allowed the complaint directing opposite parties 1 to 3 to pay an amount of Rs.1,70,000/- with interest at the rate of 18 percent p.a. from 27-3-2000 till the date of realization and also directed to pay an amount of Rs.7,543/- with interest at the rate of 18 percent p.a. from 1-3-2004 till the date of realization together with Rs.20,000/- towards compensation and Rs.1,000/- towards costs.
Aggrieved by the said order, opposite parties preferred F.A.No.961/2005 and the complainant preferred F.A.No.144/2006.
The learned counsel for the appellants/opposite parties submitted that the complaint is barred by limitation and that the hire purchase agreement between Balaji Hardware and appellants states that any dispute arising out of the contract shall be referred to an arbitrator, who shall be appointed at the choice of the appellants. He submitted that the respondent/complainant gave an undertaking in writing to take the responsibilities of all RTA formalities including transfer of RC vide letter dated 27-5-2000 and ought to have dismissed the complaint on the ground that the transaction is purely commercial in nature and the complainant is not a ‘consumer’ to render any service. He further submitted that the District Forum ought not to have granted interest at 18 percent p.a. on principle amount and also compensation of Rs.20,000/- which is contrary to the decision of the supreme court.
The learned counsel for the appellant/complainant submitted that the District Forum erred in awarding Rs.1,97,543/- only towards compensation against the claim of Rs.7,72.453/-. He submitted that the District Forum having held that Ex.B1 is not a conclusive proof that the respondents/opposite parties made attempts to transfer the vehicle in the name of the appellant/complainant, ought to have held that the appellant/complainant having spent considerable amounts towards transfer of the vehicle, ought to have awarded the compensation. He also submitted that the District Forum having held that the appellant/complainant was a driver by occupation held that there is no evidence that the vehicle is purchased for doing business or previously involved in a business activity and submitted that he had to spend a lot of money and effort for roaming round the offices of opposite parties and R.T.A. He also submitted that the respondents/opposite parties is a finance company doing business by imposing 24 percent interest on the amount of loan obtained from them and therefore District Forum ought to have awarded compensation and interest at 24 percent p.a. as claimed. The District Forum further went wrong in finding that the appellant prayed for Rs.2,32,453/- only and submitted that in the complaint copy he has given the break up claiming an amount of Rs.7,72,453/-.
The first contention of the opposite parties is that the matter ought to have been referred to an Arbitrator. In view of the judgment of the Apex Court in the case of FAIR AIR ENGINEERS PVT. LTD. AND ANOTHER v. N.K.MODI reported in II (1996) CPJ 13 (SC) wherein the Apex court held as follows-
Though the District Forum, State Commission and National Commission
are judicial authorities, for the purpose of Section 34 of the Arbitration
Act, in view of the object of the Act and by operation of Section 3 thereof,
we are of the considered view that it would be appropriate that these
forums created under the Act are at liberty to proceed with the matter
in accordance with the provisions of the Act rather than relegating the
parties to an arbitration proceedings pursuant to a contract entered into
between the parties. The reason is that the Act intends to relieve the
consumer of the cumbersome arbitration proceedings or civil action
unless the forums on their own and on the peculiar facts and circumstances
of a particular case, come to the conclusion that the appropriate forum for
adjudication of the disputes would be otherwise than those given in the
Act.”
Therefore, we are of the view that this Commission has jurisdiction to entertain the complaint. Section 3 of the Consumer Protection Act, 1986 states that The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Keeping in view the aforementioned judgements and Section 3 of Consumer Protection Act, 1986, we are of the considered view that the ‘Consumer Forum’ and ‘State Commission’ have jurisdiction to entertain the complaint.
The facts not in dispute are that the complainant purchased a vehicle and paid Rs.1,60,000/- towards full and final settlement of the loan account of M/s.Balaji Hardware and Rs.7,453/- towards insurance premium. The complainant submits that he paid Rs.20,000/- for transfer of the R.C. and other incidental expenses. The complainant submits that he spent Rs.25,000/- for tinkering, painting and tyre rebutting and made repeated demands to opposite parties to transfer the vehicle and deliver possession. Opposite parties did not deliver the vehicle within time. It is the case of the opposite parties that in Ex.B1, it is categorically stated that the complainant had taken delivery of the subject vehicle in a satisfied condition and he would take care of the R.C. book and other formalities. Ex.A9 is the letter to R.T.A., Chennai regarding the subject vehicle sold to the complainant and stated that they had no objection to transfer the same to S.R.T.A. Ongole, Prakasam District. Ex.A10 is dated 17-3-2004 is an endorsement of NOC issued by R.T.A., Chennai. It is pertinent to note that opposite parties replied vide letter dated 4-6-2004 to the legal notice issued by the complainant stating that in order to aid the complainant, a fresh R.C. book was taken in their name and the same was handed over to the complainant with all transfer forms for the name to be transferred in the name of the complainant. They further contended that the transaction that had taken place between them and the complainant was completed in March, 2000 and that they enter into any further transactions with the complainant and therefore there is no deficiency of service on their behalf. The contention of the opposite parties is that the complainant is not a ‘consumer’ since the transaction is purely commercial is unsustainable on the ground that the complainant admittedly purchased this lorry by taking finance to eke out his livelihood. The complainant is a driver by occupation and there is no evidence that the vehicle is purchased for running large business activities and therefore we hold that the complainant herein is a ‘consumer’.
We observe from the record that the complainant himself has executed Ex.B1 dated 27-5-2000 that he would ‘take care of RC book and other formalities’. This exhibit also shows that the complainant had taken delivery of the vehicle in a satisfied condition. The District Forum has not discussed this exhibit at all and the complainant has also not uncontroverted it by any evidence. It is pertinent to note that the complainant had issued a legal notice in the year 2004, i.e. a good 4 years from the date of purchase. When the opposite party in their reply stated that the complainant had got the vehicle deposited with them after 1 year 9 months through one Mr.Prakash and the complainant has not denied this contention.
Equally the opposite party is at fault for not informing the complainant that they are not at fault for the depreciation and damages incurred on the vehicle. The complainant instead of issuing a notice immediately chose to wait for 4 years to do so. Both sides are to be blamed equally. We are of the opinion that opposite party ought not to have kept the vehicle with them without issuing any notice. Today, after 7-8 years, we are not aware whether the vehicle is in road worthy condition or not. Keeping these facts and circumstances in view, we are of the opinion that the complainant is entitled to only Rs.80,000/- (i.e. 50 percent of the cost ) since he has deposited the vehicle only after more than a year with the opposite party and has not led any evidence to prove otherwise. Therefore, for the reasons aforementioned, we do not see any ground to award interest and compensation.
In the result appeal F.A.No.961/2005 is allowed in part and the order of the District Forum is modified by reducing the amount awarded from Rs.1,70,000/- to
Rs.80,000 (Rupees Eighty thousand only)and we set aside the interest and compensation awarded, while confirming the other aspects of the order of the District Forum. Time for compliance four weeks.
For the reasons aforementioned in F.A.No.961/2005, F.A.No.144/2006 preferred by the complainant is dismissed.
PRESIDENT. LADY MEMBER. MALE MEMBER.
JM Dated 18-7-2008
