State Consumer Disputes Redressal Commission
Rakesh State Legal Head Magma ... vs Moosa on 17 October, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM First Appeal No. A/15/879 (Arisen out of Order Dated 31/08/2015 in Case No. CC/141/2013 of District Wayanad) 1. RAKESH STATE LEGAL HEAD MAGMA FINCORPLTD DAWNY FIRST FLOORJAIN TOWERS N HBYE PASS ROAD VYTILLA 682019 ...........Appellant(s) Versus 1. MOOSA 652, KANHAYI HOUSE PANAMARAM CHERUKATTOORVILLAGE 670721 2. ANMOL KANDANNOTTIL HOUSE CHENGANOOR P O 689121 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE SRI.S.S.SATHEESACHANDRAN PRESIDENT SRI. V. V. JOSE MEMBER For the Appellant: For the Respondent: Dated : 17 Oct 2017 Final Order / Judgement THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL . NO - 879/2015 ORDER DATED. 16/11/2017 (Appeal filed against the order in CC.No. 141/2013, CDRF, Wayanad) PRESENT:- HON'BLE JUSTICE SRI. S.S.SATHEESACHANDRAN : PRESIDENT SRI. V.V.JOSE : MEMBER APPELLANT: Magma Fincorp Limited represented by their state Legal head Mr. Rakesh Dawny, 1st floor, Jain Towers, N.H. Byepass road, Vyttila, Ernakulam 682 019. (By Adv. Philip T. Varghese ) V/S RESPONDENTS: Moosa, S/o Avulla, 652, Kanhayi House, Panamaram, Cherukattoor village- 670 721. (By Adv. R.Suja Madhav) Anmol, S/o Sasidharan Nair, Kandannottil House, Chenganoor P.O, Pin. 689 121. (2) ORDER
HON'BLE JUSTICE SRI. S.S.SATHEESACHANDRAN : PRESIDENT First opposite party in CC No.141/14 on the file of Consumer Disputes Redressal Forum, Wyanad has filed this appeal challenging the Order of the forum directing it to prepare a fresh chart of EMI @ Rs.15,000/- ( Rupees fifteen thousand ) for balance amount due, as assessed by Forum, on the loan transaction of complainant hypothecating his vehicle . First opposite party was also directed to pay compensation of Rs.5,000/- ( Rupees five thousand ) and cost of Rs.3,000/- (Rupees three thousand) to complainant.
Complainant's case was that he had entered into a loan transaction with the first opposite party to purchase a motor vehicle and as security for the loan transaction a hypothecation (3) agreement own the vehicle was entered into by the parties. He alleged that the transaction was entered with the assistance of an agent who was subsequently impleaded as additional 2nd opposite party. According to him, there was an agreement to pay every month Rs. 15000/- ( Rupees fifteen thousand ) by him and Rs. 3500/- ( Rupees three thousand and five hundred ) by his agent . However, he was issued a chart showing that monthly instalment payable was Rs.18,500/- for a period of 22 months and, thereafter, for a period of 18 months at the rate Rs.3544/-. When a demand was made for monthly instalment @ Rs.18,500/- from him he protested . He was then informed that he need to pay only Rs.15,000/- and balance Rs.3500/- would be collected from his agent, 2nd opposite party. One payment was made for six months, then, he was assured that a fresh chart would be issued. However, he received a notice (4) threatening seizure of vehicle, that too after he had remitted a sum of Rs.1,75,000/- towards the loan transaction. Alleging that there was threat of forcible seizure of the vehicle and also deficiency of service by first opposite party, complaint was filed before the forum to restrain opposite party prove seizing the vehicle and also for issue of directions for settlement of accounts and payment of compensation.
After first opposite party entered appearance and filed version disputing the case of complainant and raised contentions questioning jurisdiction of the forum complainant amended the plaint to implead an additional party, 2nd opposite party, alleging that he was the agent through whom the loan transaction was entered for the vehicle with 1st opposite party. That additional 2nd opposite party remained absent, and was set ex parte.
(5)We heard counsel for appellant. There was no representation for first respondnet/complainant.
We have perused the Order of the forum and also the records. Going through the records, we find that the forum has exceeded its jurisdiction in issuing warrants against opposite party for non-production of documents sought for by the complainant. The documents sought for related to the loan transaction over the vehicle. If a document is not produced despite the order of the forum, at the most, it can draw adverse inference. Issuing warrant for the reason that documents sought for were not produced was highly improper. We make no further comment over the coercive steps taken by the forum to compel production of documents.
We find the forum below failed to understood the disputed questions involved in the proper perspective. A4 was (6) an agreement executed between complainant and 2nd opposite party, who, according to him, was an agent in the loan transaction with the 1st opposite party. That 2nd opposite party remained absent. The case of the complainant that he was an agent was challenged by the first opposite party. Still, implicit reliance was placed on the agreement alleged to have been executed by complainant and also the 2nd opposite party to conclude that there was an understanding to collect only Rs.15000/- as monthly instalment from complainant and another sum of Rs.3500/- from the agent. On perusing the complaint also, we find as and when it was presented, complainant had no case there was division of monthly instalment sum of Rs.18500/- as was projected later in the evidence. Though he filed an amendment application, we notice that the amendment was only to the effect of styling the opposite party as first (7) opposite party, that alone. No particulars were presented why 2nd opposite party was additionally impleaded, what way he was involved in the transaction or over the division of monthly instalment of Rs.18500/- with him, which was projected later by the complainant before the forum. Ignoring these aspects, we fail to understand, how the forum relied on Ex.A-4 agreement to hold that there was an agreement between complainant and 1st opposite party fixing monthly instalment payable by complainant of Rs.15000/- . View so taken is totally erroneous and not based on evidence. Based on that finding alone, it has assessed the balance amount payable on the loan by the complainant. No data is furnished as to how the forum came to the conclusion that the outstanding amount due was only at the sum calculated and shown in its Order. Calculation made by the forum is patently erroneous as it has discarded (8) Ex.A-2 fixing the monthly instalment payable @ Rs,18,500/- over 22 months and thereafter @Rs.3544/- for 18 months. To say the least the Order passed by the forum with directions as referred to above is not only erroneous but patently illegal. Evidently, the complainant has framed a case bringing forth an agent as additional opposite party, who was in fact not a party to the loan transaction, to prevent first opposite party from proceeding against him . When a loan agreement is entered on hypothecation of a vehicle, parties thereto will be covered by their mutual contract reflected in the agreement and other supporting documents. A third party agent even if involved in the transaction, unless he was a party to the agreement entered between the financier and customer, has no role in the transaction, more so over obligations and liabilities arising (9) thereunder. Complaint in the proved facts of the case, deserved outright dismissal where it was evident that complaint was abusing the process of the forum presenting a concocted and false case.
Appeal is allowed reversing the order of the District Forum with cost of Rs.5,000/- ( Rupees five thousand ) payable by 1st respondent/complainant. Complaint No. CC. 141/2013 shall stand struck off from the file of the District Forum.
JUSTICE S.S. SATHEESA CHANDRAN : PRESIDENT V.V.JOSE : MEMBER Ekm Rj (ca) /sh [HON'BLE MR. JUSTICE SRI.S.S.SATHEESACHANDRAN] PRESIDENT [ SRI. V. V. JOSE] MEMBER