w w w . L a w y e r S e r v i c e s . i n



Gangu Ram v/s Sai Automobiles & Another

    First Appeal No. 310 of 2016

    Decided On, 20 March 2017

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MR. P.S. RANA
    By, PRESIDENT
    By, THE HONOURABLE MR. VIJAY PAL KHACHI & THE HONOURABLE MRS. MEENA VERMA
    By, MEMBERS

    For the Appellant: S.R. Sharma, Advocate. For the Respondents: R1, Ex-Parte, R2, Ashwani Kaundal, Advocate.



Judgment Text

1. Gangu Ram complainant filed present appeal against order passed by learned District Forum Shimla in consumer complaint No.60/2011 title Gangu Ram versus M/S. Sai Automobiles & Another decided on 29.07.2016 wherein learned District Forum dismissed the complaint of complainant.

Brief facts of Case:

2. Gangu Ram filed complaint pleaded therein that complainant purchased a goods carrier tempo No. HP-03B-0591 from Sai automobiles which was financed by Indusind bank limited for a sum of Rs.440000/-(four lac forty thousand). It is pleaded that as per agreement complainant paid a sum of Rs.70000/-(Seventy thousand) by way of cash to Suman Sharma in presence of Nand Lal and Govind and paid a further sum of Rs.80000/-(Eighty thousand) on 21-08-2006 towards outstanding balance amount. It is further pleaded that complainant further paid Rs.17000/-(Seventeen thousand) towards insurance of vehicle against receipt on 23-08-2006. It is further pleaded that complainant paid excess amount to opposite parties. It is further pleaded that complainant has also paid installment amount to the tune of 9300/- per month as monthly installments. It is pleaded that complainant had also paid Rs.10000/-(Ten thousand) per month sometimes. It is further pleaded that the opposite parties took the vehicle from possession of the complainant fraudulently on 07-05-2007. It is further pleaded that complainant filed consumer complaint No.201/2007 before learned District Forum which was dismissed. It is further pleaded that thereafter complainant filed appeal before State Consumer Commission at Shimla which is pending adjudication. It is further pleaded that after filing appeal before State Commission opposite parties returned back vehicle to the complainant on 10-08-2007 and thereafter again took vehicle from complainant in the month of December 2008 and sold the said vehicle and placed the complainant in huge harassment and mental tension. It is further pleaded that the opposite party No.2 took the vehicle from complainant when complainant brought the vehicle for repair to workshop of opposite party No.1. It is pleaded that opposite party No.2 sold the vehicle to party at Haryana without giving any notice to complainant. Complainant sought relief of compensation to the tune of Rs.200000/- (Two lac) and complainant also sought litigation costs.

3. Per contra version filed on behalf of opposite party No.1 M/s. Sai Automobiles pleaded therein that complaint is not maintainable as complainant is not a consumer. It is pleaded that complainant has no cause of action against opposite party No.1. It is admitted that complainant purchased vehicle from opposite party No.1. It is pleaded that vehicle was financed by opposite party No.2 i.e. Indusind Bank Limited. It is pleaded that opposite party No.1 issued sale certificate and others documents as per law. It is further pleaded that opposite party No.1 is not involved in the process of taking vehicle from possession of complainant. Prayer for dismissal of complaint sought.

4. Per contra separate version filed on behalf of opposite party No.2 Indusind bank pleaded therein that present complaint is not maintainable as vehicle was financed by opposite party No.2 for commercial purpose. It is further pleaded that complainant is not a consumer. It is further pleaded that complainant has executed a loan agreement with opposite party No.2. It is further pleaded that complainant did not pay monthly installments as per loan agreement. It is further pleaded that complainant has given assurance letter on 28-08-2007 and thereafter vehicle was released to complainant. It is further pleaded that complainant again surrendered vehicle on 30-12-2008 due to his failure to pay monthly installments. It is further pleaded that registered notice was given to complainant and his guarantor to settle the amount but amount was not settled. It is further pleaded that in view of arbitration clause in agreement present complaint is not maintainable. Prayer for dismissal of complaint sought.

5. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by learned District Forum Shimla complainant filed present appeal before State Commission.

6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire records carefully.

7. Following points arises for determination in present appeal.

1. Whether appeal filed by the appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.

2. Final order.

Findings upon point No.1 with reasons:

8. Complainant filed affidavit by way of evidence. There is recital in evidence that vehicle was not surrendered by complainant to opposite party No.2. There is further recital in affidavit that opposite party No.2 did not give notice to complainant before forcibly taking possession of vehicle.

9. Opposite party No.1 also filed affidavit of Shyam Verma Proprietor M/s. Sai Automobiles in evidence. There is recital in affidavit that opposite party No.1 only received payment of vehicle from complainant. There is further recital in affidavit that after sale of vehicle opposite party No.1 has no concern with any transaction. There is further recital in affidavit that no agreement was executed after sale between opposite party No.1 & complainant. There is further recital in affidavit that opposite party No.1 did not dispossess the complainant from custody of vehicle.

10. Learned Advocate appearing on behalf of opposite party No.2 has given written statement before learned District Forum on 04-07-2014 that version filed by opposite party No.2 be read in evidence. Learned Advocate appearing on behalf of opposite party No.2 closed the evidence. It is held that version filed by opposite part No.2 is pleading as define under section 13(1)(a) of Consumer Protection Act 1986 and is not evidence as define under section 13(4) (i) (ii) (iii) (iv) (v) (vi) of Consumer Protection Act 1986.

11. Submission of learned Advocate appearing on behalf of appellant/complainant that respondents be directed to pay Rs.200000/- (Two lac) as compensation for not using vehicle w.e.f. 01-07-2007 to 10-08-2007 and w.e.f. 12-12-2008 till sale of vehicle on 11-06-2009 is decided accordingly. It is proved on record that Gangu Ram complainant filed Complaint No.201 of 2007 before learned District Forum title Gangu Ram versus M/s. Sai Automobiles. It was ordered by learned District Forum that complainant would furnish undertaking to Indusind bank limited to was also ordered that complainant would also furnish undertaking that he would not commit default in the payment of any outstanding loan installments. It was further ordered that after furnishing undertaking by complainant opposite party No.2 i.e. Indusind Bank limited would release vehicle in compliance to undertaking.

12. Feeling aggrieved against the order of learned District Forum dated 22-07-2009 announced in Complaint No.201 of 2007 Gangu Ram complainant filed appeal No.234/2009 titled Gangu Ram versus M/S Sai Automobiles which was decided by State Commission on 26-08-2011. State Commission set aside the order of learned District Forum announced in Complaint No.201 of 2007 dated 22-07-2009 and ordered that opposite party No.1 i.e. M/S Sai Automobiles would pay compensation to the complainant to the tune of Rs.50000/-( Fifty thousand) within forty five days from the date of order failing which complainant would be entitled to interest at the rate of 9% per annum from date of filing complaint.

13. Thereafter M/S Sai Automobiles filed review petition No.613 of 2011 before State Commission which was decided on 17-04-2012. State Commission shifted the liability to pay compensation of Rs.50000/- (Fifty thousand) upon opposite party No.2 i.e. Indusind bank limited and reviewed its own order qua liability of payment of compensation amount.

14. Thereafter M/s. Indusind Bank limited filed revision petition No.2805 of 2012 titled M/s Indusind Bank limited versus Gangu Ram and others before Hon’ble National Consumer Disputes Redressal Commission against order of State Commission dated 17-04-2012. Hon’ble National Commission held that State Commission has no power to review its own order. Hon’ble National Commission held that complainant would recover compensation amount of Rs.50000/- (Fifty thousand) from M/s. Sai Automobiles. Order passed by Hon’ble National Commission attains stage of finality as of today.

15. Submission of learned Advocate appearing on behalf of appellant/complainant that in Hire Purchase Agreement financier is not legally competent to take possession of vehicle is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that in Hire Purchase Agreement financer is owner of vehicle and purchaser acquires right of hirer only. It is also well settled law that purchaser would acquire right of ownership after clearing of entire loan amount. See I (2017) CPJ 408 (NC)=2017 (1) CPR 86 NC, Dewar Motors @ Dewesh Motors v.Uttam Bhuyia. It is proved on record that prior notice was given to complainant by opposite party No.2 for non-payment of installments amount within time as agreed by parties in agreement.

16. Submission of learned Advocate appearing on behalf of appellant/complainant that complainant did not commit default in payment of loan installments and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Complainant did not place on record payment receipts of loan amount. Pleas of the complainant that complainant has paid entire due amount is defeated on the concept of ipse dixit ( An assertion made without proof). It is well settled law that if one party to agreement fails to perform his part of agreement then defaulting party cannot compel other party to perform its part of agreement. See II (2017) CPJ 215 (NC)=2017 (1) CPR 344 (NC) Jasvinder Kaur v. Parsvnath Developers Limited and Another.

Please Login To View The Full Judgment!

/> 17. In the present case complaint relates to settlement of accounts and recovery of balance amount between the parties. It is held that proper remedy lies in civil court because dispute inter see parties is relating to settlement of accounts in the present case. See III (1998) CPJ 9 (NC)=1998 (2) CPC 538 (NC) Vishal Roadways v. Economic Traders Limited. In view of above stated facts and case law cited it is held that it is expedient in the ends of justice not to interfere in order of learned District Forum. Point No.1 is answered in negative. Point No.2: Final Order 18. In view of findings upon point No.1 appeal is dismissed. Order of Learned District Forum is affirmed. Parties are left to bear their own litigation costs. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties free of costs forthwith strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal dismissed.
O R