State Consumer Disputes Redressal Commission
N.Ravichandran, S/O Natarajan, vs M/S Kotak Mahindra Primus Ltd., on 9 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY FRIDAY, the 9th day of October, 2009. First Appeal No.1/2009 N.Ravichandran, S/o Natarajan, Proprietor, M/s Ravi enterprises, No.115E, Chinnasubbaraya Pillai Street, Puducherry Appellant Vs. 1. M/s Kotak Mahindra Primus Ltd., Rep. by its Authorised Signatory, Having office at No.45, Montieth Road Egmore, Channai-8. 2. M/s Kotak Mahindra Primus Ltd., Pondicherry, Rep. by its Director, Business Associates, Shree Financial Services through its Authorised Signatory, Having office at No.246, First Floor, Cuddalore Road, Puducherry .... Respondent (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.21 of 2006 dated 28.11.2008) Consumer Complaint No.21 of 2006 N.Ravichandran, S/o Natarajan, Proprietor, M/s Ravi enterprises, No.115E, Chinnasubbaraya Pillai Street, Puducherry Complainant Vs. 1. M/s Kotak Mahindra Primus Ltd., Rep. by its Authorised Signatory, Having office at No.45, Montieth Road Egmore, Channai-8. 2. M/s Kotak Mahindra Primus Ltd., Pondicherry, Rep. by its Director, Business Associates, Shree Financial Services through its Authorised Signatory, Having office at No.246, First Floor, Cuddalore Road, Puducherry .... Opposite Parties BEFORE: HONBLE JUSTICE THIRU N.V. BALASUBRAMANIAN PRESIDENT TMT. P.V.R. DHANALAKSHMI, MEMBER
FOR THE APPELLANT:
Thiru S.Vimal, Advocate, Puducherry.
FOR THE RESPONDENT:
M/s Anand, Abdul & Vinodh Associates.
Advocates, Egmore, Chennai.
O R D E R (By Tmt.P.V.R.Dhanalakshmi, Member) This is an appeal u/s 15 of Consumer Protection Act, 1986 filed by the complainant against the order of the District Forum at Puducherry made in Consumer Complaint No.21/2006 dated 28.11.2008. The complainant before the District Forum is the appellant in this appeal and opposite parties 1 and 2 are the respondents 1 and 2 in this appeal.
2. The facts of the case are such as the complainant purchased a Telco Sedan vehicle (Indica Diesel car) for the value of Rs.3,50,000/- with Registration No.PY-01/P-6705 for his personal use by availing financial facility for Rs.1,98,000/- on hire purchase on 20.07.2000 from the first O.P., represented by its then direct marketer M/s Pranams Financial Services and now functioning in the name of M/s Shree Financial Services (the 2nd O.P.). The loan comprised of 34 monthly instalments and hence the complainant issued 35 post-dated cheques (from 20.07.2000 to 15.05.2003). The complainant promptly repaid full loan amount excepting few occasions with low negligible delay in payments. The complainant claimed that he finished repaying the loan hence urged the O.P.s for foreclosure of loan and issue of duplicate key of the vehicle which was not heeded by the O.P.s. Therefore, the complainant was unable to sell his vehicle and incurred loss by way of depreciation. The O.Ps by their proposed letter, dt.21.05.2003 claimed Rs.10,083.64 as receivable/ payable miscellaneous charges pending payment by the complainant. The complainant sought explanation for charging Rs.10,083.64(as miscellaneous charges) and it is unknown till today. The O.Ps have not chosen to furnish details for charging Rs.10,083.64. Further, on 21.03.2005, the complainant received a legal notice from O.P.No.1 with a demand of Rs.9,082/- towards compensation charges, cheque dishonour charges, etc. and the complainant issued a reply with acknowledgement card on 06.04.2005 disputing his liability and return of key, N.O.C., etc. Again, on 15.12.2005, he received another notice with a demand of Rs.5,159/- towards penal charges and the complainant replied on 19.12.2005. The complainant alleges for deficiency in service upon the O.Ps and claimed for mental agony and loss of depreciation and hence the original complaint before the District Forum.
3. The Opposite Parties 1 and 2 were served notice. The 2nd O.P. set exparte on 03.08.2006.
In the counter filed on behalf of the 1st O.P. on 30.05.2006 wherein hire purchase agreement was admitted by signing necessary documents. 35 post-dated cheques were issued by the complainant. The 1st opposite party in 5th para claimed the outstanding pending payment as lawful outstanding. Moreover, the duplicate key will be returned only when the entire dues are paid in full.
The opposite parties further submits that on 21.03.2005, a legal notice wa sent with a request to pay Rs.9,082/- as lawful outstanding, the complainant did not come forward to pay. Again, on 15.12.2005 another legal notice was sent with a request to pay Rs.5,159/- after deducting certain late charges and the payable amount was considerably reduced. The complainant did not heed to pay the amount.
The 1st opposite party further stated the complainant as false and vexatious and the complainant with mala fide intention evaded lawful repayments of the dues. Hence, prayed no negligence on 1st opposite party nor any deficiency in service and not liable to pay to the tune of Rs.1,00,000/- as depreciation value of the car Rs.25,000/- towards mental agony and damages and cost of Rs.5,000/- and humbly prayed for dismissal of the complaint.
4. The complainant filed his proof affidavit and marked Exs.C1 to C10 on his side. No oral or documentary evidence was adduced on the side of the Opposite Parties.
5. The District Forum in its finding concluded that the complainant on an hire purchase agreement could not be termed as a consumer in a consumer dispute for the reason that the complainant is not a consumer as he was not to pay consideration for loan. Hence, the complaint was dismissed on 23.02.2007 in C.C.No.21/2006. Aggrieved by the order of the District Forum, the complainant preferred a Revision Petition No.4/2007, dated 27th March, 2008 before this Commission. The Revision-Petitioner (Complainant) relied upon the following decisions:
1. Lucknow Development Authority Vs. M.K.Gupta (AIR 1994 SC 787)
2. Vimal Chandra Grover Vs. Bank of India (2001(1) CPR 7 SC
3. Sundaram finance Ltd.
Vs. State of Kerala & Others (AIR 1966 SC 1178)
4. City Maruti Finance Ltd Vs. Vijayalakshmi (III 2009 CPJ NC 161)
5. Tata Fin. Ltd.
Vs.Francis Sociro (F.A.720/03, dt.22.02.08 NCDRC) And contended that the revision petitioner is a customer and the disputed agreement cannot be regarded as a hire purchase agreement as the complainant is the owner of the vehicle by obtaining finance from the opposite parties having discharged the debts he claimed for N.O.C. and duplicate keys of the car. Now, the question that arises is whether the referred agreement a hire-purchase agreement or vehicle finance agreement and this Commission held this agreement document as a vital and significant document in order to establish the identity of the parties while entering such contract. So far, both the complainant and opposite parties 1 and 2 never choose to file this agreement as a document.
6. Learned counsel for the revision-petitioner submitted inspite of several notice given to the opposite parties to produce the agreement, but the same was not conceded.
In order to given an opportunity for the revision-petitioner (Complainant) the order of the District Forum is liable to be set aside and a final chance is given to the complainant to establish the referred agreement as a vehicle finance agreement and hence he falls within the ambit of Consumer under the Act.
7. In the result by allowing the revision-petition, the said matter got remanded to the District Forum for fresh disposal with a direction to the opposite parties to produce the agreement before the District Forum. The said order is passed on 27th March, 2008.
8. The District Forum on 28.11.2008 took up the consumer complaint 21/2006 for re-trial against the order of the remand in Revision Petition No.4/2007, dt. 27.03.2008 by the Honble State Commission, Puducherry.
9. The District Forum during re-trial gives the following findings. In the fresh adjudications, the complainant and his counsel were present, but the opposite parties abstained in all the hearings. Further, neither the complainant nor the opposite parties produced the hire purchase agreement. The case of the complainant is discussed again. The complainant filed his proof affidavit and marked Exs.C1 to C11. It is reported that the second opposite party remained exparte and no oral or documentary evidence was adduced on the side of opposite parties. The first opposite party submitted their reply version on 30.05.2006 (this petition is discussed above). Based on the available records, the District Forum dismissed the complaint and held that the complainant is not a consumer under purchase agreement with the following citation:
1) 2008(1) CPR -123 ( Kerala State Commission) Manager, St. Antonys Hire Purchase Pvt. Ltd Vs. N.A.Jose Rv.P.367/98 (NCDRC)
2. 2007 (2) CPR 155 (State Commission, Bhopal, M.P.)
3. 2004 (1) CPC 306 (State Commission, Chandigarh) and held that the relationship between the complainant and the opposite parties is that of debtor and creditor. Hence, there is no service rendered by the opposite parties to the complainant and the complainant has not passed any consideration to the opposite parties.
10. The second point for consideration could be with regard to foreclosure of loan agreement, as the dispute is purely money transaction it can be resolved only by consensus of parties with documentary proof. Based on the discussions, the complaint is again dismissed for the second time on 28.11.2008.
11. Now, the appellant/complainant filed this appeal before this Commission with the prayer to allow the appeal and grant relief as prayed in the original complaint. The learned counsel for the appellant/complainant appeared but there is no representation on behalf of respondent/opposite parties 1 and 2.
12. The points for consideration are:
1.
Is the appellant/complainant a consumer within the meaning of the Act?
2. Does the act of the respondents/Opposite parties attracts any Deficiency of service? If so, to what extent?
13. POINTS 1 and 2:
The case of the appellant/complainant is that he availed financial facility from the opposite parties to purchase a Telco Sadan Vehicle (Indica Diesel car) with Registration No.PY-01/P-6705 for his personal use, the loan amount is Rs.1,98,000/- (on 20.07.2000) and the total value is Rs.3,50,000/- by availing 35 EMIs. The appellant/complainant admits negligible delay while paying the EMIs on few occasions. As per the statement of accounts, the appellant/complainant completed the dues and hence requested for issue of N.O.C. and return of duplicate keys from the opposite parties 1 and 2.
14. The appellant/complainants counsel argued that the financial facility availed comes to an end after paying 35 EMIs dues and the relationship as debtor and credit ends by there itself. Thus, the appellant/complainant becomes absolute owner of the vehicle and hence requested for issue of N.O.C. and return of duplicate keys from the respondents/Opposite Parties by attributing deficiency of service.
15. The appellants counsel relied on the following citations:
1. 1 (2001) CPJ 8 (NC) Engineers India Ltd. Vs. Gazhiabad Development Authority & another (O.P.34 of 1996)
2.
2002 STPL (CL) 715-NC Shefali Bhargaua Vs. Indraprastha Apollo Hospital & Anbother (O.P.No.243/1997) In the first case, discussion on consumer foras jurisdiction to decide the issue regarding pricing of housing based on contract entered between parties are permissible under the Consumer Protection Act. The appellant/complainant can very well seek remedy under the Act, the underlying purpose of the Act is to preserve and protect the interest of an individual consumer based on this reason the appellant is a consumer. In the second case, when a party in position to produce evidence if not produced it, must suffer adverse inference against itself (para 8), with the case on hand the respondents/opposite parties have not come forward to produce the vehicle finance agreement after availing ample opportunity to produce the same and have neither chosen to appear nor establish their case.
16. It is contended by the respondents/OPs through Ex.C2, dated 21.05.2003 that there is a claim of Rs.10,083.64 towards miscellaneous charges followed by two legal notices, Ex.C3 dt. 21.03.2005 for the claim of Rs.9,082/- towards compensation and Ex.C5 dt. 15.12.2005 for Rs.5,159/- towards penal and dishonour of cheques charges. It is very clear that the respondents/Opposite Parties have not made a definite and specific amount as outstanding due and further they have not chosen to produce any documentary or oral evidence.
17. The respondent/O.P.No.1 filed its reply version thereby claiming lawful outstanding pending for payment, hence he could not foreclose the finance agreement in consequence he refrained from issuing N.O.C./duplicate keys of the car.
18. The appellant/complainant filed his proof affidavit and Exs.C1 to C11 to prove his claim, but the respondent/opposite parties neither appeared nor proved their version.
The appellant/complainants evidence remain unchallenged by the respondents/O.Ps 1 and 2.
19. On perusing the records of the case, in the interest of justice, we are of the view that the appellant/complainant completed the payable dues and claims for N.O.C. and keys , it is admitted by both the parties. Now, the burden of proof is upon the respondents/O.Ps to establish the quantum of due and to foreclose the finance agreement by issuing N.O.C and keys of the car.
20. In case if the respondents/O.P.s have any reasonable claim, they are at liberty to exercise it by lawful means, but, in this appeal on hand, their attitude of not letting in the available documentary evidence attracts adverse inference drawn against them. Further, once when the dues are paid, it is the duty of the respondents/ O.P.s to conclude the contract and issue N.O.C./ keys of the car. Their non compliance clearly attracts deficiency of service under Section 2(i)(g) of the Act.
21. In the result, the appeal stands allowed with the following directions: The respondents/Opposite Parties are hereby directed to issue N.O.C. and duplicate keys of the car to the appellant/complainant within four weeks from the date of this order.
The parties are directed to bear their respective costs.
Dated this the 9th day of October, 2009.
(N.V.BALASUBRAMANIAN) PRESIDENT (P.V.R.DHANALAKSHMI) MEMBER