State Consumer Disputes Redressal Commission
Mirza Ahmed Baig,Nizamabad Dist vs 1.The Branch Manager,M/S. Shriram ... on 31 January, 2013
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No. 704/2011 against C.C.No.14/2010, Dist. Forum, Nizamabad Between: Mirza Ahmed Baig, S/o.M.A.Baig, Aged about 40 years, Occ:Owner -cum-Driver, R/o.H.No. 3-10, Ankapoor Village, Armoor Mandal, Nizamabad Dist. Appellant/ Complainant And 1.The Branch Manager, M/s. Shriram Transport Finance Co. Ltd., D.No.5-6-573/1B/1 Pragathi Nagar, Nizamabad. 2. The Branch Manager, M/s. Shriram General Insurance Co.Ltd., D.No.5-573/1B/1, Pragathinagar, Nizamabad. Respondents/ Opp.parties Counsel for the Appellant : Mr.Y.V.Narasimhacharyulu Counsel for the Respondent : Mr.M.V.R.Suresh-R1 R2-served. QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT, And SRI S.BHUJANGA RAO, HONBLE MEMBER.
WEDNESDAY, THE THIRTY FIRST DAY OF JANUARY, TWO THOUSAND THIRTEEN.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** This appeal is directed against the order dt.17.6.2011 of the District Forum, Nizamabad, which is filed by the appellant/complainant seeking direction to the opposite party no.1 not to seize the vehicle and to pay Rs.90,000/- towards damages and Rs.8000/- towards costs to the complainant and to direct the opposite party no.2 to pay damages of Rs.1,39,000/- towards the accident claim and Rs.50,000/- towards damages.
For the sake of convenience the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant is the driver and owner of the lorry bearing no.RJ 192 G 1005 which was financed by the opposite party no.1. Opposite party no.1 financed a sum of Rs.7,50,000/- to the complainant for purchase of the said lorry through an agreement. The said amount was to be repaid in 45 equated instalments at Rs.26,667/- along with interest at 11% p.a. The complainant repaid an amount of Rs.5,86,674/- by 1.12.2009 in 22 instalments. The lorry was insured with opposite party no.2, which is the sister company of opposite party no.1, under policy bearing no.10003/31/09/014991 dt.27.11.2008 valid upto 18.1.2010. The further case of the complainant is that though the opposite party no.1 received the payments from the complainant, they had adjusted the same towards heavily charged penal interest, over due charges, which is not mentioned in the agreement nor did the opposite party no.1 informed the complainant, at the time of sanctioning the loan. Though amount was paid in time, the amount of instalment was adjusted for the ODC charges without any intimation to the complainant.
While so, the lorry met with an accident on 3.12.2009 and heavily damaged. The opposite parties were informed about the accident and damage to the vehicle. The surveyor estimated the damage at Rs.1,39,000/-. The opposite party no.1 informed the complainant that they would collect such amount from opposite party no.2 and credit the same to the account of the complainant. They also assured the complainant not to pay EMI for three months and asked him get the damaged lorry repaired. On their assurance, the complainant got repaired the lorry by paying Rs.2 lakhs. After the complainant got the lorry repaired, the opposite party no.1 demanded the complainant to pay Rs.2,61,290/- towards ODC, otherwise they would seize the lorry. The opposite parties are trying to seize the lorry after repair. The HP agreement does not provide for ODC interest or penal interest. Therefore, the earlier payments made by the complainant and the interest charged are to be rebated. No notice was issued by opposite parties on 7.1.2010 for payment of Rs.2,61,290/- for clearance of the instalments. The opposite party is not furnishing the account copy to the complainant. The opposite party is acting illegally to extract huge amount. The act of the opposite party in seizing the vehicle is illegal. So also issuance of notice etc. by the opposite party is also illegal. Hence the complaint.
Resisting the complaint, the opposite party no.1 filed counter/written version denying the material allegations made in the complaint and contended that only with an intention to harass this opposite party and to avoid the legal procedure, the complainant had filed the complaint with false allegations. On the requisition of the complainant and after explaining the terms and conditions, this opposite party sanctioned loan of Rs.7,50,000/- vide agreement no.TSLNIZA30000197 Dt.30.1.2008 on hypothecation of vehicle bearing no.RJ192G 1005. Along with the accorded interest Rs.4,50,000/- the total agreement value is Rs.12 lakhs and the same is to be repaid in 45 monthly instalments at Rs.26,667/- for 44 months and Rs.26,652/- as last instalment . The complainant repaid Rs.4,10,810/- till December,2009 towards the repayment of the loan amount.
The complainant failed to regularise the instalments and wanted to protect the repayment of instalments by filing false case.
This opposite party further contended that the complainant filed a suit for injunction vide R.S.C. 5/2010 on the file of Jr.Civil Judge, Biloli Dist. Nanded on 21.1.2010, on the same set of facts, which are mentioned in the present complaint. During pendency of the said suit, the complainant filed the present complaint and obtained status quo orders. This opposite party never tried to seize the vehicle as alleged in the complaint, but opposite party will take steps to seize the vehicle under due course of law.
As the complainant has committed default in payment of instalments, the complainant is due a sum of Rs.2,55,804/- towards outstanding dues. Four instalments to be paid by the complainant. The complaint is therefore liable to be dismissed with costs.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A10. As against that evidence, on behalf of the opposite party no.1, its Branch Manger, Y.Ramakrishnudu filed his evidence affidavit and got marked Ex.B1 and B2.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint awarding compensation of Rs.10,000/- to the complainant for threatened injury of repossession and claiming over due certificate to the complainant directing opp.party no.1 to adjust the same towards the amount due by the complainant to it, so also, Rs.1000/-
towards costs of the complaint.
Opp.party no.1 is further directed to re-draw the account of the complainant pertaining to loan connected to this case and ascertain the principal amount due from him as on 12.2.2010 (date of attempting to repossession of the vehicle) together with agreed rate of interest and @ 3% per month delayed payment charges over and above the agreed rate of interest and deduct Rs.10,000/- compensation aforesaid and Rs.1000/- costs so also the insurance amount and inform the actual amount due by the complainant to it by register post acknowledgement, under notice to this Forum giving one month time for paying the same and in the event of not paying the said amount the opposite party no.1 is at liberty to recover the said amount together with agreed interest and penal interest described supra under due process of law by repossessing the vehicle and selling it duly. The other reliefs claimed by the complainant against opp.party no.1 and total reliefs against opposite party no.2 are dismissed without costs. Opposite party no.2 is directed to help and assist opposite party no.1 while re-drawing the account of the complainant with reference to the insurance claim. In case the complainant pays the actual due amount after such re-drawal of account opposite party no.1 shall issue clearance/no objection certificate and also get the vehicle re-endorsed by discharging the finance.
Aggrieved by the said order, the complainant preferred the above appeal urging that the order of the District Forum is contrary to law, weight of evidence and probabilities of the case and against the principles of natural justice. That the District Forum failed to observe the contents of the complaint and that the District Forum ought to have allowed the complaint, directing the respondents/opp.parties not to seize the vehicle, with compensation and costs. The impugned order of the District Forum is therefore liable to be set aside.
We heard the counsel for both the parties and perused the material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is an admitted fact that the complainant availed the loan of Rs.7,50,000/- from opposite party no.1 for purchasing the above said lorry in the month of January ,2008 under Hire Purchase Agreement. It is also not in dispute that the said vehicle was insured with the opposite party no.2 which is a sister concern of opposite party no.1. Though the complainant claimed that he has repaid the entire loan amount to opposite party no.1, he could not prove the same by placing cogent evidence. Even the contention of the complainant is that the opposite party no.1 did not pass receipts for some payments which is not accepted by the District Forum for want of evidence. It is therefore established that the complainant did not pay the instalments as agreed under the agreement and became a defaulter. As rightly observed by the District Forum filing of the suit by the complainant in R.S.C.no.5/2010 on the file of Jr.Civil Judge Court Division at Biloli in Nanded Dist., Maharashtra on the same facts is not a bar to file the present complaint by the complainant, as the said suit was dismissed for default on 3.5.2010 and that the same was not restored to file. The appellant/complainant has not urged any valid grounds challenging the impugned order of the District Forum.
Having regard to the facts and circumstances discussed above, we do not find any illegality or irregularity to interfere with the well reasoned order of the District Forum.
In the result, appeal is dismissed confirming the order of the District Forum. But in the circumstances of the case, there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER Pm* Dt. 31.1.2o13