State Consumer Disputes Redressal Commission
Shanmuga Bankers, Salem District. vs C. Malairaj,Ramanathapuram District. ... on 3 June, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.S.Sambandam, B.Sc., MEMBER II F.A.600/2005 [Against order in O.P.20/2002 on the file of the DCDRF, Ramanathapuram] DATED THIS WEDNESDAY, THE 3RD DAY OF JUNE 2010 Shanmuga Bankers, | Appellant/1st O.P. Paramathi Main Road, | P.Vellore, | Salem District. | Vs. 1.
C. Malairaj, | S/o.Chinnan, | Respondent/Complainant R. Kanannur, | Ramanathapuram District. |
2. M. Asath, | Respondent/2nd O.P. F.S. Tractors, | 20, Natham Road, | Dindigul. | The first respondent as complainant filed a complaint before the District Forum against the appellants/opposite parties praying for the direction to the opposite parties, to pay Rs.2 lakhs being income loss, to pay a sum of Rs.1,54,350/- with interest, to return the Tractor and Trailer with good condition and to pay Rs.25,000/- towards mental agony. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.23.09.2005 in C.C.20/2002.
This appeal coming before us for hearing finally on 08.04.2010, upon hearing the arguments of the appellants' counsel and respondent in person, this commission made the following order:
Counsel for the Appellants /1st OP : Mr.R.Thirugnanam, Advocate Counsel for the R1/ Complainant : Mr.V.Krishnakumar, Advocate.
Counsel for the R2/2nd O.P. : Mr.T.R.Sundaram, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The first opposite party is the appellant.
2. The complainant who is the first respondent herein, approached the District Consumer Disputes Redressal Forum, Ramanathapuram, seeking directions against the opposite parties for the return of a sum of Rs.2 lakhs under the heading loss of income, for a further sum of Rs.1,54,350/- being the amount paid by him, for a further direction, for the return of the vehicle seized from the complainant, and for a further sum of Rs.25,000/- on the following grounds.
3. At the request of the second opposite party, on his promising to supply a tractor and trailer for Rs.3,35,000/- at Ramanad, the complainant paid a sum as advance Rs.1,35,000/-, assuring to pay the balance of Rs.2 lakhs on monthly installments of Rs.8,560/- per month for 36 months. The first opposite party, has promised to deliver the vehicle at Ramanad, registering at Ramanad Regional Transport Office. But as promised, the second opposite party has not delivered the vehicle namely Tractor and Trailer, but on 14.5.99, tractor alone was registered, bearing Registration No.TN-65-B-0690, but they have not handed over the RC Book. In the absence of the RC Book, as well because of the failure on the part of the opposite parties, to deliver the trailer, the complainant was unable to run the vehicle, profitably and the same was idle from 01.06.99, thereby, causing loss of income. As agreed, the complainant has paid a sum of Rs.1,62,910/-, for 19 months on 8 installments. Even, thereafter, trailer was not supplied, thereby, causing loss of income to the extent of Rs.2 lakhs.
Only on 28.09.2001, tractor was registered, but RC Book was not given, thereby, the right of the complainant to ply the vehicle was deprived, thereby, they have committed deficiency in service, for which, they are answerable. Since the documents were handed over to the complainant only on 28.9.2001, the complainant is not liable to pay the installments for the months of May, June, July, August and September 2001. But unfortunately, alleging that installments were not paid, tractor and trailer were seized by the opposite parties on 09.11.2001, which is illegal. Therefore, they are liable to return the vehicle, in good condition. Despite notice and repeated demands, the opposite parties failed to respond and therefore, they are liable to pay the amounts, as claimed including the return of vehicle seized illegally.
4. The first opposite party's case in brief:
This opposite party is doing finance business at Paramathi, Salem District. The second opposite party is not an agent of the first opposite party as falsely alleged. The complainant requested this opposite party for financial assistance which was considered by the Partners and agreed to advance a sum of Rs.2 lakhs, which was received by the complainant from the first opposite party at Paramathi. The complainant has also executed an agreement, expressing his desire to obey the conditions for payment of installments, failure, empowering the first opposite party to seize the vehicle. But as agreed, the complainant failed to pay the installment regularly. The documents pertaining to the vehicle were always with the complainant. This opposite party has financed only for the purchase of the tractor and the complainant never demanded or requested any financial aid for the purchase of the trailer. The complainant himself registered the vehicle at Ramanathapuram RTO as agreed.
5. For the loan availed namely Rs.2 lakhs, the complainant paid only a sum of Rs.1,54,350/- and thereafter failed to pay the amount, despite number of requests. The complainant in order to escape as well as to cheat the financial company, suppressing the real fact, filed a false complaint. This opposite party pressurized the complainant to pay the balance, for which, he assured that he will pay the amount after selling the tractor, further requesting if any known person is available, to inform him, for the sale of the vehicle. Thereafter, the vehicle was sold in the presence of this opposite party, and at that time, some dispute regarding the balance arisen and in order to evade the responsibility, false case has been filed.
6. The Consumer Forum has no jurisdiction, since the opposite parties are residing out side the jurisdiction, that is at Salem District. The dispute between the parties relates to a contract and if there is any dispute, the same has to be decided before Civil Forum and in this view also, this case is liable to be dismissed. The other averments such as loss of income, damages are false, invented. Hence, it is prayed the case may be dismissed with cost.
7. The District Forum exhibiting 29 documents, on the side of the complainant and marking 4 documents on the side of the contesting opposite party, evaluated the same, supported by the plea and counter plea. On appreciation of the materials, the District Forum came to the conclusion, that part of cause of action had arisen within the jurisdiction of Ramnad District Forum, that by illegal seizure of the vehicle, as well as in not giving notice before the seizure of the vehicle, the opposite parties have committed deficiency in service. It is also the further conclusion that part of cause of action had arisen, within its jurisdiction. Thus concluding, negativing the prayer for the return of the vehicle, directed the opposite parties, jointly and severally to pay a total sum of Rs.2,97,710/- with interest thereon on 09.11.2001, in addition to Rs.50,000/- towards compensation under various headings, thereby caused grievance to the first opposite party, who alone contested the case. Aggrieved by the said order dated 23.09.2005, the first opposite party preferred this appeal.
8. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
9. The learned counsel for the appellant would contend that the District Forum has not properly considered the documents filed by the opposite party, resulting injustice, that it has also failed to note that it has no jurisdiction since the opposite parties are all residing out side its jurisdiction, that the claim is also barred by limitation, which are opposed.
10. The first opposite party is residing at Paramathi, Salem District and the second opposite party is residing at Dindigul, thereby, indicating that all of them are not residing within the jurisdiction of District Forum, Ramnad. Under the Act, generally, case has to be filed where the opposite party resides or where the cause of action wholly or in partly had arisen. Realizing the question of jurisdiction, it is said in the complaint, that part of cause of action had arisen at Ramnad. Though in the number of places, in the complaint, it is repeatedly said, as if, many things had taken place at Ramnad, nothing is proved. On the other hand, considering the permanent residence of the opposite parties, as well as the business carried on by them, we are of the considered opinion, that part of cause of action said to have arisen at Ramnad must be, incorrect. The part of cause of action contemplated under Section 11 of the Act must be with reference to the action for claim, not for any other things. The main grievance of the complainant appears to be, that the opposite parties have seized the vehicle illegally on 09.11.2001, as seen from Para-12. Here, it is not stated that the seizure had taken place at Ramnad, though an attempt was made to say that the vehicle was taken from the house of the complainant. There is no plea challenging the documents, executed or written by the complainant, in favour of the first opposite party. As seen from Ex.B4, the complainant, had executed a letter stating that he had sold the vehicle at Dindigul for Rs.1,55,000/- on 09.12.2001. If really, this document was extracted, by using force or any other deceitful manner, the complainant ought to have pleaded the same in the complaint, which is absent. Therefore, unless Ex.B4 is challenged nullified since the complainant had signed in the document, not under challenge, we have to take it as correct document, which would indicate that the vehicle was sold at Dindigul, which has given major cause of action, for filing the case, whether it is for the return of the amount, or for the return of the vehicle as the case may be.
11. Ex.B3 is the promissory note executed at Paramathi, by the complainant. Ex.B2 is the rules and regulations of the first opposite party, a typed copy, wherein, the complainant had singed on 21.1.99 at Paramathi. Therefore, as if, the first opposite party came to Ramnad, assured financial aid, must be incorrect and this plea might have been taken, to say, as if part of cause of action had arisen at Ramnad, which must be unadulterated lie. Ex.B1 is the loan application, which was also given at Paramathi, wherein, the complainant has signed. It is the common knowledge, unless it is otherwise unquestionably proved, that any person who wants a loan, will go to the financier, and sign the documents, not vice versa. In this view also, if we analyze the above documents that would indicate, the cause of action for the purpose of filing the case, which is the criterion should have taken place at Dindigul or Paramathi and not certainly within the jurisdiction of Ramnad. In this view, we are constrained, to hold that the District Forum had passed an order, without jurisdiction, which is liable to be set aside.
12. The Act contemplates, a consumer should approach the Consumer Forum within two years, from the date of cause of action that means from the first date of cause of action, unless it is otherwise pleaded, as continues cause of action or ignoring the first date of cause of action, other cause of action alone was criterion for filling the case. In this case, the first date of cause of action is given as 14.5.99, which must be incorrect. The date of registration of the vehicle will not give cause of action, either for the return of the amount or for compensation or for the return of the amount paid that is why in the prayer, the date of cause of action is given from 1.6.99, for two prayers that should be the cause action atleast for prayers (a) and (b). If that should the date of cause of action, the case should have been filed on or before 1.6.2001, whereas the case has been filed only on 26.7.2002, which should be held, as barred by time, atleast for the prayers (a) and (b). The District Forum has not considered, which is its duty to see whether the claim is in time or not, whether such defence has been or not. In this view, we are constrained to hold, that two prayers are barred by limitation as well as third prayer is concerned, since cause of action had taken at Dindigul as per Ex.B4, the case is not maintainable, before the District Forum, Ramnad. Further, this prayer does not arise at this stage, since the same was negatived by the District Forum, not challenged by the complainant by way of appeal. Thus, it should be held, for the prayer granted, the same is barred by limitation and in this view also, appeal deserves acceptance, in view of the further fact, there is no material to quantify or separate the alleged compensation of Rs.2 lakhs.
13. Even on merit also, it appears, the complainant has no case before the Consumer Forum, which is not properly considered by the District Forum. A careful reading of the order would suggest that the District Forum has proceeded purely on the basis of surmise and conjecture, as well as under certain presumption not available under law. The complainant would state, as if the opposite parties have come to Ramnad, assured the loan facilities, promised to register the vehicle and handover everything, which are against the admitted documents as indicated above. The rules and regulations of the first opposite party say, that the borrower has to take the responsibility of registering the vehicle. As per the documents, loan was applied only for the purchase of the tractor, not for trailer and because of the same, tractor registered early, which justifies the contention of the first opposite party, that he had not financed for trailer. Therefore, the trailer was not registered or the documents of the trailer were not given to the complainant, will not make the first opposite party, or opposite parties to pay compensation. Against the document, the complainant pleaded a new case and in support of the same, without mentioning the names of the persons, who witnessed the incident, in the complaint, affidavits were obtained, at later stage probably from the aggrieved person, on which basis, a case has been decided. Admittedly, as seen from the payment made by the complainant, he has not paid the installments, regularly and he had committed default periodically. Therefore, nothing wrong on the part of the first opposite party, to insist the payment and that by insistence, complainant had sold the vehicle at Dindigul, paid the amount, as seen from Ex.B4 and therefore, the question of illegal seizure of the vehicle will not come into operation. The District Forum, as if, the complainant had come to the Forum, with clean hands and the opposite parties alone should have committed mistake, proceeded and decided the case, which is not proper. When there is dispute about the execution of the documents, as well as the non-production of the original hire purchase agreement and the non-challenging of the documents produced by the opposite parties, if the Forum felt, it requires elaborate enquiry, it should have referred the matter to the Civil Forum, giving such direction to the parties, which it failed. In this view also, we are of the considered opinion that the person who had committed default, in payment of the monthly installments as agreed is not entitled to accuse the other side, as if they have committed deficiency in service.
14. The second opposite party appears to be agent or the dealer as the case may be, whether he had any connection with the first opposite party or not. If any payment has been made through the second opposite party, it reached the hands of the first opposite party, even as recorded by the District Forum. It is not the case of the complainant, that the second opposite party had seized the vehicle. There is no privity of contract between the complainant and second opposite party, except the dead letters in the complaint. This being the position, though the second opposite party remained exparte, it is not known, how he was made liable to pay the award amount, which appears to be prima facie incorrect, liable to be set aside. For the above said reasons, the appeal deserves acceptance.
15. In the result, the appeal is allowed. The order of the District Forum in OP.20/2002, dt.23.09.2005 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.
16. The Registry is directed to handover the Fixed Deposit Receipt made by way of mandatory deposit, to the appellant, duly discharged.
S. SAMBANDAM M.THANIKACHALAM MEMBER II PRESIDENT INDEX :
YES / NO Ns/mtj/misc./fm