State Consumer Disputes Redressal Commission
A.Mohammed Younus, S/O Abdullah vs P.Sureshchand Kothari, S/O Parasmal ... on 28 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY WEDNESDAY, the 28th day of October, 2009. First Appeal No.20/2008 A.Mohammed Younus, S/o Abdullah, No.17, New Street, Sulthanpet, Puducherry. .. Appellant Vs. 1. P.Sureshchand Kothari, S/o Parasmal Kothari, No.40, Kalathi Pillai street, Sowcarpet, Chennai-79. 2. Sree Ramachandiran Motors, Rep. by its Proprietor R.Manonmani, No.3, IV Cross, Thiruveni Nagar, Villianur Manaveli, Puducherry -110. .. Respondents (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.43 of 2007 dated 19.11.2007) Consumer Complaint No.43 of 2007 A.Mohammed Younus, S/o Abdullah, No.17, New Street, Sulthanpet, Puducherry. .. Complainant Vs. 1. P.Sureshchand Kothari, S/o Parasmal Kothari, No.40, Kalathi Pillai street, Sowcarpet, Chennai-79. 2. Sree Ramachandiran Motors, Rep. by its Proprietor R.Manonmani, No.3, IV Cross, Thiruveni Nagar, Villianur Manaveli, Puducherry -110. .. Opposite Parties BEFORE: HONBLE JUSTICE THIRU N.V. BALASUBRAMANIAN PRESIDENT TMT. P.V.R. DHANALAKSHMI, MEMBER
FOR THE APPELLANT:
Thiru. J.Anwar Sathath, Advocate, Puducherry.
FOR THE RESPONDENTS:
Tvl.M.Anbualagan & Sairamkumar Advocates, Puducherry O R D E R (By Tmt.P.V.R.Dhanalakshmi, Member) This appeal is filed u/s 15 of Consumer Protection Act, 1986 (hereinafter called the Act for convenience), against the order of the District Forum in Consumer Complaint No.43/2007, dated 19.11.2007 in dismissing the complaint.
2. The case of the complainant is that he availed two wheeler TVS Victor vehicle loan from the respondent/O.P.No.2 being sales outlet. The respondent/ O.P. No.2 made arranges with the 1st respondent/O.P. (financier) for hire purchase of two-wheeler for the appellant/complainant. On 21.04.2003, the appellant/ complainant executed the document relating to the loan on hire purchase agreement and paid Rs.10,000/- as initial amount to the 2nd respondent/O.P. The total value of the two-wheeler is Rs.38,080/- with Regn.No.PY-01/U-7201. The loan amount is Rs.28,080/- with interest with 24 E.M.I.s at the rate of Rs.1,590/- per E.M.I. for 23 months and Rs.1,510/- as E.M.I. for the 24th month. There is no dispute with regard to the locus standi of the three parties, i.e. the owner (financier), the purchaser (Complainant) and the retail outlet (the seller) with the understanding of these three parties, the complainant/purchaser agreed to pay the loan amount in 24 instalments. The vehicle stands in the name of the appellant/complainant in the R.C. Book and hypothecated to the 1st respondent/O.P. Now, the dispute is regarding payment of instalments the tabular column shown in Page 4 of the appeal confirms the payment of first 17 instalments at 2nd respondent/O.P.s office in favour of 1st respondent/O.P. by way of cash. The appellant/complainant deposited from 18th to 22nd instalments with the Indian Bank, Villianur Branch and obtained necessary endorsement in the pass book from 2nd respondent/O.P. Later, the 23rd and 24th instalments are remitted at the 1st respondent/O.P. account with ICICI Bank and took endorsement in the pass book from the 2nd respondent/O.P. The attitude of the appellant/ complainant shows that he cleared all the dues on 27.04.2005, but he was not heeded by respondents/O.Ps. 1 and 2 by not issuing original R.C. Book, N.O.C. in order to cancel hypothecation endorsement in the R.C. Book and return of additional key.
This caused the appellant/complainant to issue legal notice, dated 24.03.2007 which was acknowledged by both the respondents/O.P.s on 07.04.2007 and hence the appeal.
3. The complaint was dismissed by the District Forum on 19.11.2007. Aggrieved by the order of the District Forum, the present appeal is filed before this Commission. The District Forum had recorded its finding that the complainant is not a consumer as defined under the Act and the first O.P. is the financier and the tripartite agreement is hire purchase agreement and further held that the complainant is not a consumer by citing the following judgements:
1) III (2006) CPJ 247 (NC) Ram Deshlahara V.Magma Leasing Ltd.
2) III (2007) CPJ 161 (NC) in Citicorp Maruti Finance Ltd. Vs. S.Vijayalaxmi
3) AIR 1966 (SC) 1178 in Sundaram Finance Ltd Vs. State of Kerala & Others
4) 2002(1) CPR 52 (NC) Haryana Financial Corporation Vs. Sunil Kumar Bansal And finally relied on 5) CPR VII 1993 (2) P.353 in S.Gnanasekharan Vs. The Chai8rman, National Small Industries Corporation Ltd & Others, Based on the above cited cases, the District Forum opined that the transaction in the instant case is only financial in nature and that the complainant is not a consumer and hence the complaint cannot be entertained by the District Forum.
4. We heard Learned counsel for the appellant/complainant and it is argued that the dispute relates to hire purchase agreement and after discharging the dues, the appellant/complainant is entitled to receive the original R.C. book, N.O.C. (to cancel hypothecation in R.C. Book) and to collect the other set of keys, but in this present case, the respondent/O.P.No.1 and 2 have not concluded the agreement and handed over these documents. The appellant/complainant is put in hardship as he could not ply the vehicle in the absence of original R.C. book and avail insurance and hence the appellant/complainant attributes deficiency in service against both the respondents/O.P.s It is further added that Section 2(o) of the Act covers the scope of the term service under finance also.
5. It is further submitted that in a hire purchase agreement, the owner is the financer and the hirer is the purchaser and the consideration is in the form of rent for hiring the services of O.P.No.1 during the agreement period. Once the agreement period is completed after discharging the dues, the position of the financier changes into seller and the complainant becomes buyer the consideration being fixed every monthly instalments it is submitted that there is no dispute on payment of first 17 instalments with the 2nd respondent/O.P. by way of cash, the dispute starts from the 18th instalment onwards ass the appellant/ complainant directly paid the E.M.I. s with the Indian Bank and ICICI Bank. It is admitted that as per the direction of the respondent/O.P.No.2, the complainant deposited the instalments with the banks. The following citations are referred by Learned counsel for the appellant/complainant:
1) 2003(2) CPJ 561 Asst. Secretary, Kerala State Housing Board Vs. Sundaram
2) 2005(3) CPJ 16 K.S.Murugaiyan Vs. SR Selvaraj & Another
3) 2003 (2) CPJ 377 Allahabad Vikas Pradhkaran Vs. Rani Sharma
4) 1993 (II) CPJ 1199 Sankar Prasad Nayak Vs MD Film Development Corporation of Orissa & Another
5) 1992 (II) CPJ 48 (NC) Union Bank of India Vs. Mohendar Kumar
6) 1993 (III) CPJ 1306 (SCDRC Orissa) Manager, Bank of India & Others Vs. Rankanidhi Ojha
7) 1991 (I) CPJ 362 (SCDRC-AP) State Bank of Hyderabad Vs. Shri bairi lingam
8) 1993(III) CPJ 1331 (SCDRC-Orissa) Branch Manager, Canara Bank Vs. Makara Prusty & Another The case of the respondent/O.P.No.1 as per their version is that O.P.1 financed TVS Victor two-wheeler in favour of the appellant/complainant and agreed to repay the loan in 24 E.M.Is.@ Rs.1,590/- for 23 months and Rs.1,510/- for the 24th instalment. The respondent/O.P.No.1 alleges that from 19th instalment onwards, the appellant/ complainant did not make any payment and a sum of Rs.9,460/- is pending E.M.I., as all payments are paid belatedly and further levied Rs.9,548/- as additional interest and a sum of Rs.1,459/- was due against insurance and thus the appellant/ complainant is liable to pay Rs.20,503/- in favour of the respondent/O.P.No.1. The respondent/O.P.No.1 further contents a photostat copy of the R.C. as issued at the time of granting the loan and alleges that the appellant/complainant has not discharged the hire-purchase loan completely and hence there is no deficiency in service on the respondent/O.P.No.1. The appellant/complainant filed his proof affidavit and Exs.C1 to C36 were marked.
Exs.R1 and R2 were marked on the side of the respondent/O.No.1.
6. Now, the questions for determination are:
1.
Is the appellant/complainant, who is the hirer in an hire-purchase agreement is barred by the Act?
2. Are the respondents/O.P.s 1 and 2 are justified by retaining the R.C. book, other set of keys, N.O.C.? Does it amount to defi-
ciency in service?
7. It is a well settled principle of law that when a contract is entered into between parties, bilateral or multilateral, the intention behind the contract is to be looked into in total and not in piecemeal. With the present appeal, a wider sense has to be applied as such there is no exclusion clause in the preamble of the Act which excludes the appellant/complainant from seeking relief under the Act. In the interest of justice, the appellant/complainant who is a hirer during the pendency of hire purchase agreement turns out to be buyer after completion of due discharge of instalments or lapse of time. The point of dispute is that the respondent/O.P.No.1 alleges for pending dues from the appellant/complainant. It is open to both the parties to contract to contest the issue with available documentary evidence. Thus, the appellant/complainant is not barred by the Act and shall seek remedy under the Act.
8. The attitudes of respondents/O.P.s 1 and 2 are not fruitful and their vital role as per their agreement is not completed unless and until the original R.C. book, N.O.C. and other set of keys are returned to the appellant/complainant and deficiency in service is attributed on the respondents/O.P.s 1 and 2. We are of the view that the parties are set free for negotiating statement of accounts with appropriate proof, and arrive at exact amount of settlement. In order to execute the said issue, the complaint is remanded back to the District Forum, Puducherry with the direction to call for both appellant/complainant and respondents/O.P.s for verification of 24 E.M.Is paid into their account and adjudicate the case accordingly.
9. The appeal is disposed of accordingly. No costs in this appeal.
Dated this the 28th day of October, 2009.
(N.V.BALASUBRAMANIAN) PRESIDENT (P.V.R.DHANALAKSHMI) MEMBER