Karnataka

Kolar

CC/67/2013

Sri. Shabarish.S., - Complainant(s)

Versus

TVS Credit Services Ltd., Jayalakshmi Estates,& Ors. - Opp.Party(s)

Suman.K

14 Jul 2015

ORDER

Date of Filing: 06/12/2013

Date of Order: 14/07/2015

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

 

Dated: 14^th DAY OF JULY 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: 67 OF 2013

Sri. Shabarish.S,

S/o. K.N. Srinivas,

Aged About 29 Years,

R/at: #911, Brahmin’s Street,

Besides Sree Raghavendra Swamy

Temple, Kolar Town.

(Rep. by Sriyuth. Somashekar.R, Advocate)               ….  Complainant.

 

- V/s -

1) The Manager,

TVS Credit Services Limited,

Jayalakshmi Estates, #29,

Haddows Road, Chennai-600006.

 

2) Anand (Team Manager),

Kolar District Recovery Team,

TVS Credit Service Limited,

8^th Cross, Nearby Dattatreya Swamy

Temple, Opp. To Syndicate Bank,

Malleswaram, Bangalore.

(Ops-1 & 2 are rep. by Sriyuth. M.Satish, Advocate)

 

3) The Proprietor,

Saravana Enterprises, Hanumegowda

Complex, M.B.Road, Near Santegate,

Kolar-563 101.

 

4) The Proprietor,

Raju Enterprises,

Bethamangala Road, Tamaka,

Kolar.

(Ops-3 & 4 placed exparte)                               …. 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 reliefs of issuance of directions to the Ops to return New Petrol Tank, Side Box (Dickey Box) and Five New MTS Deut Mobiles worth Rs.4,990/- each, thus the total sum of Rs.24,950/-, as well, to repay the extra amount received, to pay compensation of Rs.75,000/- on the grounds of mental and physical sufferings and huge expenses incurred and costs.

 

02.   It is the contention of the complainant that, he has been working as Sales Officer in MTS Cell Phone Office, at M.G. Road, Kolar.  And that for his convenience, he has purchased a new motor-bike “Apache RTR 160 CC” bearing registration No: KA-07-S-8807 on 17.07.2012.  And that at the time of purchase he had paid a sum of Rs.40,600/- and he was to pay balance consideration on installment basis as it was hire purchase from the OP-1.

 

(a).   Further it is contended that, he had paid six installments, i.e., a sum of Rs.16,140/-.  And that, while so, the OP Nos.1 & 2 had seized the said vehicle without giving notice and knowledge.  And that after seizing the Ops had insisted for payment of Rs.45,500/- in case release of the vehicle was to be opted.  And that this amount included extra insurance and extra rate of interest.  And that these Ops has not paid the insurance amount.  And that thus there could be no insurance for this vehicle, in spite of collecting total amount of Rs.1,02,240/-.  And that under these circumstances they are liable to repay the extra amount collected.

 

(b).   Further it is contended that, at the time of seizing of the vehicle these Ops had damaged the petrol tank with regard to the vehicle and had taken away side box (Dickey Box) in which five new MTS Deut mobiles worth Rs.4,990/- each and thus the total value of Rs.24,950/-.  And that, when he had asked the Ops they gave vague and evasive answers.  And that, he got issued notice to the Ops on 01.08.2013 and in the reply dated: 20.08.2013 they had denied the averments in the said notice.

 

(c).   So contending the complainant has come up with this complaint to seek above said reliefs.

 

(d).   Along with the complaint with list he has submitted following eleven documents:-

1.       Office copy of the legal notice.

2.      Xerox copy of mobiles bills

3.      Xerox copy of R.C. of the complainant

4.      Xerox copy of the settlement receipt

5.      Xerox copy of estimate quotation

6.      Xerox copy of the complainant

7.      Colour Xerox copy of motor bike

8.      Loan installment repayment schedule (Xerox)

9.      The Xerox copy of insurance copy

10.    Xerox copy of bill vouchers 08 in numbers

11.     Xerox copy of reply notice.

 

03.   OP Nos.1 & 2, in response to the notice issued have put-in their appearance and preferred written version.  Whereas, as per the disclosure made in the order-sheet dated: 18.01.2014 the then Learned Predecessors passed an order placing OP Nos. 3 & 4 exparte.

 

04.   It is contention of the OP Nos.1 & 2 that of them the OP-1 had lent the said two wheeler on 21.07.2012, for, the complainant had availed finance of Rs.45,000/- to purchase the said vehicle.  And that 24 equal monthly installments of Rs.2,513/- had been fixed.  And that the complainant had paid initial 04 EMIs and thereafter remained in arrears.  And that, consequently notice came to be issued on the complainant for sale of the vehicle.  And that, after repossession the complainant had approached and paid the balance on 27.07.2013 and had taken back the vehicle without any allegations as alleged in the complaint.  And that as such there could be no relation with the complainant as a customer.  And that as per the principles enunciated in II (2012) CPJ 8 (SC) financier being the real owner the person who took the loan retained the vehicle only as a bailee/trustee.

 

(a)    There is denial of contended payment of Rs.40,600/-.  Consequently there is denial of contended total payment of Rs.1,02,240/-.  There is also denial with regard to taking way of the said articles attached and in the dickey.  So contending dismissal of the complaint with exemplary costs came to be sought.

 

05.   The complainant has submitted his affidavit evidence by way of examination-in-chief annexed with the list with the following eight documents:-

1.       Original Down Payment Cash Bill

2.      Original Loan Cash Paid Bill

3.      Original EMI Letter (Loan Payment Schedule)

4.      Original Insurance Copy

5.      Original Replay Notice copy

6.      Original MTS Employment offer Letter

7.      Original MTS Award Certificate

8.      Original Resume.

 

06.   On behalf of the OP Nos.1 & 2 Sri. N.K. Ashok, Assistant Manager Legal has put his affidavit evidence by way of examination-in-chief with list dated: 01.08.2014 following 06 documents have been submitted:-

1.       Copy of reminder notice

2.      Loan recall notice along with Postal ack.

3.      Pre-sale Notice along with Postal ack.

4.      Reply notice dated: 20.08.2013

5.      Copy of the statement made before the police authorities.

6.      Photographs of the bike bearing No. KA-07-S-8807 with CD.

 

07.   On 22.04.2015 the learned counsel for the complainant did submit written arguments and again on 15.06.2015 written arguments came to be submitted on behalf of the complainant.  Whereas on behalf of the OP Nos.1 & 2 on 07.02.2015 itself written arguments were submitted, whereas on 15.06.2015 the learned counsel appearing for the OP Nos.1 & 2 with Memo has submitted Xerox copies of following three citations:-

1.   2004 (2) CPR 584 – Tamil Nadu State Consumer Disputes Redressal Commission, Chennai.

2.   National Consumer Disputes Redressal Commission, New Delhi, Revision Petition No. 2013/2011.

3.   Karnataka State Consumer Disputes Redressal Commission, Bangalore, 2012 (1) CPR 295.

 

08.   Therefore the points that do arise for our consideration are:-

1.   Whether the complainant could be considered as a Consumer as per provisions of Section 2(1)(d) of the Consumer Protection Act, 1986?

2.   If so, whether the complainant is able to establish that, there was deficiency in service on the part of the Ops in regard to the said two wheeler which was re-entrusted to the complainant on 27.07.2013 as part of the settlement with the OP Nos.1 & 2?

3.   What order?

 

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

POINT No.1:    In the Affirmative

 

POINT No.2:    In the Negative

 

POINT No.3:    As per the final order.

 

REASONS

POINT No.1:-

10.   Admittedly it was hire purchase on the part of the complainant with regard to the said two wheeler for which OP Nos.1 was the financier and OP-2 was only an employee under the OP-1.  It is the case of the complainant that, after such payment that resulted in settlement on taking back the said vehicle he could notice that new petrol tank was damaged dickey was taken away including five New MTS Deut Mobile sets.  When such are the allegations certainly the complainant being a consumer entitled to maintain this complaint.  Therefore the principles enunciated in 2004 (2) CPR 584, Order dated:  14.07.2014 in Revision Petition No.2013/2011 as passed by the Hon’ble National Commission, New Delhi, 2012 (1) CPR 295 holding that in case of hire purchase agreement there could be no relationship of vendor and consumer as relied by the learned counsel appearing for the OP Nos.1 & 2 are in-applicable.

 

POINT No.2:-

11.   It is a definite case of the complainant that, on the very seizing of the said two wheeler OP Nos.1 & 2 had seized the vehicle without notice and knowledge were guilty of damaging the petrol tank and taking away the said dickey wherein five new MTS Deut Mobile sets were kept which were worth Rs.4,990/- each, and thus total sum of Rs.24,950/- (reliance placed on averments in Para-2 & 4 of the complaint).  It would reveal that the complainant was made aware of the said loss/damage to the said vehicle while he took back the same after paying the balance consideration of Rs.45,500/-.  And this event of paying the said balance had taken place on 27.07.2013.  Similar are the allegations made in the notice dated: 01.08.2013 that was caused on the Ops.

 

12.   Surprisingly the complaint as well as the notice are silent with regard to who were the authors of this wrong as there are Ops Nos.1 & 2 and 3 & 4.  Because there should be a specific indication as to whether all or any one of them or some of them were guilty of this aggressive behavior in taking away the said articles kept in the dickey including this dickey and petrol tank.  Moreover no documents come forth with regard to the said mobiles as according to the complainant they were very much new.

 

13.   Besides, it is worth to note that on 27.07.2013 when there was a settlement in as much as the complainant had credited a sum of Rs.45,500/- and took back the said vehicle having found damage to the petrol tank, removal of dickey and the said five new MTS mobile sets he ought to have protested spur on the moment.  He remained tight-lipped while taking back the said vehicle and sometime later after lapse of four days he found fancy to cause issuance of said notice to the Ops on 01.08.2013.  What prevented this complainant from protesting with regard to the said damage and loss of the said articles has remained enigmatic.  Therefore the complainant has miserably failed to prove or establish that, these Ops were guilty of causing damage to the said petrol tank and removing the said dickey with five new MTS mobile phones.  Consequently we cannot hold that, the Ops were guilty of deficiency in service while re-entrusting the said two wheeler to this complainant on 27.07.2013.

 

POINT No.3:-

14.   We proceed to pass the following:-

 

ORDER

(01)  For foregoing reasons, this complaint stands dismissed.  However we direct both the parties to bear their own costs.

 

(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 14^th DAY OF JULY 2015)

 

 

 

 

                                MEMBER                                                 MEMBER                                   PRESIDENT