ASHOK LEYLAND FINANCE LIMITED vs HIMANSHU S. THUMAR

THIS appeal arises from order dated 18th May, 2004 rendered by the learned Jamnagar District Consumer Disputes Redressal Forum in Complaint Application No. 24/2004 directing the complainant to pay penalty of Rs. 1,200/- to the opponent within 15 days of the order and upon such payment the opponent to return the vehicle in question in working condition in presence of the mechanic of the complainant and also to pay compensation in the sum of Rs. 6,000/- for deficiency in service and Rs. 1,500/- by way of cost.

IT was the complainant''s case before the learned Forum that the complainant had purchased Yamaha Motorcycle at the value of Rs. 54,538/- under the hire purchase agreement entered into between the complainant and the opponent Ashok Leyland Finance Limited on 12.6.2001. Margin money of Rs. 538/- was kept. The complainant gave security deposit of Rs. 16,200/- and issued 35 post-dated cheques for monthly instalments in repayment of the hired amount. The cheques were drawn on Centurian Bank. IT was the complainant''s case that the complainant had disputes with the Centurian Bank. He, therefore, informed the opponent that he would pay monthly instalments by cash and the opponent should not deposit the cheques into the Bank, but the opponent refused the suggestion made by the complainant. Opponent accordingly deposited the cheques but the cheques were dishonoured by the Bank. IT was, therefore, the case of the complainant that the dishonour of the cheques was the result of default on the part of the opponent in not accepting the suggestion of the complainant. IT was also the case of the complainant that he deposited Rs. 62,092/- by 31st May, 2003. According to him he was required to deposit Rs. 62,327/-, that included finance charges also, as per the agreement. Thus, he was liable to pay only Rs. 235/- to the opponent after 31st May, 2003. Yet one or the other employee of the opponent Company went to the residence of the complainant and threatened the complainant''s wife to seize the vehicle in question. Complainant, therefore, issued notice through his Advocate on 9.1.2004 and called upon the opponent to send statement of account showing the outstanding amount payable by the complaint to the opponent. By letter dated 13th January, 2004 the opponent informed the complainant to pay Rs. 10,029/-. Complainant wrote letter dated 17.1.2004 whereas the complainant''s Advocate received the opponent''s reply on 23.1.2004. By that time the opponent seized the vehicle in question on 22.1.2004. IT has, therefore, been alleged by the complainant that there was deficiency in service on the part of the opponent company in seizing the vehicle in question. The opponent resisted the complaint inter alia on the ground that the relation between the parties was that of ''Debtor and Creditor'' and, therefore, the complainant could not be said to be ''consumer'' in the eye of law and that as per the agreement the complainant was liable to pay monthly instalment regularly without default and if default was committed additional finance charges @ 36% p.a. are liable to be paid by the complainant. Besides, the complainant was also liable to pay charges for dishonour of the cheques as per the agreement. Post-dated cheques which were given by the complainant came to be dishonoured in most cases when presented for payment. The opponent also incurred expenses of Rs. 3,000/- for taking possession/seizing the vehicle in question and the complainant was liable to pay that amount also. Thus, the complainant was a defaulter in making payment of outstanding amount. However, he paid Rs. 13,000/- on 21.2.2002 and Rs. 2,000/- on 23.2.2002 by cash and presented Mr. Jasminbhai M. Kamdar as his surety. Even thereafter the complainant neglected to pay monthly instalment. Under such circumstances the security deposit of Rs. 16,200/- was set off on 31.5.2003. Even thereafter the complainant was required to pay Rs. 2,964/- by way of regular instalment and Rs. 5,997/- by way of future instalment as on 15.1.2004. As the complainant failed to pay the instalments the opponent served notice on 15.1.2004 and terminated the agreement calling upon the complainant to pay Rs. 16,670/- failing which the vehicle in question would be once again seized. As the complainant failed to act according to the said notice the vehicle in question was seized on 22.1.2004. Thus the complainant himself was a defaulter whereas the opponent acted according to the agreement and was not guilty of deficiency in any manner.

Both the parties adduced evidence with regard to their respective factual allegations. Learned Forum came to the conclusion that since the complainant gave notice dated 9.1.2004 and since the reply to the notice given by the opponent was received by the complainant''s Advocate on 23.1.2004 the seizure of the vehicle was illegal as per the very communication issued by the opponent. Learned Forum then went into the account and entered into efficacy of every entry in the account. It has also proceeded to find that the complaint was liable to pay penalty charges in the sum of Rs. 200/-. As per the complainant/statement of the Centurian Bank, only six cheques were dishonoured. Learned Forum, therefore, concluded that opponent wrongfully demanded the penalty amount to the extent of Rs. 7,500/-. Learned Forum has also concluded that the opponent debited additional finance charges @ 3% instead of @ 2.5% as agreed between the parties. Learned Forum, therefore, accepted the complainant''s claim that there was deficiency in service on the part of the opponent.

WE have heard the learned Advocate appearing for the original opponent, now appellant before us. WE have gone through the impugned order. No one is present for the complainant though notice was served. At the outset it has been noted that the dispute presented by the complainant before the learned Forum essentially relates to the account between the parties. This Commission has time and often held that dispute which pertains to account between the parties cannot be said to be a consumer dispute. It is essentially a civil dispute. Hence, the complaint could not have been entertained by the learned Forum.

IT has been submitted that the learned Forum has committed error in misreading the communication/notice dated 13.1.2004 issued by the opponent company to the complaint. The opponent company has not given a fixed time to the complainant for clearing his dues for saving seizure of his vehicle. The opponent company has recited in the said notice that it was last and final warning for the complainant to clear his dues till 19.1.2004. Thus, a specific date was given to comply with the notice. IT is not the case of the complainant that he himself did not receive the notice before 19.1.2004. Even in this notice the opponent has clearly stated the outstanding amount payable by the complainant as per the account between the parties. The first item was 3 instalments of Rs. 988/-. IT was in the sum of Rs. 2,964/-. Now there is no answer to this item which is the remaining outstanding amount. The second item was additional finance charges in the sum of Rs. 6,315/- (approximately) as total 32 cheques were returned. Opponent has submitted the statement of cheques which have been returned upon deposit thereof with the Bank. IT appears from the impugned order that each and every item of the statement has not been scrutinized from the complainant. IT was for the complainant to explain what happened to his particular cheque if the cheque was stated to have been dishonoured from the side of the complainant. IT was for the complainant to explain that cheque was not dishonoured. Ultimately the picture that would be reflected would be a different picture. The complainant would have submitted that he made overpayment in respect of that cheque. That precisely is not the case of the complainant. That apart, it is an admitted fact that the cheques had been returned upon presentation in the Bank. Thus the complainant himself was a defaulter. He was, therefore, liable to pay additional finance charges as stipulated in Clause 3.3. of the agreement according to which in the event of the cheque being not honoured on the due dates, the hirer shall be liable to pay Rs. 200/- per instalment overdue per month, in addition to replacing the bounced cheque by a demand draft in lieu of the bounced cheque. This condition was clearly violated by the complainant. Besides, the hirer/co-hirer was liable also to pay penal charges @ 2.5% per month on all the outstanding amount till the date of receipt of payment as per Clause 3.4 of the agreement. IT would also appear from the impugned order that there was default in that respect also. We do not enter into other calculations with regard to whether the opponent charged/levied penal charges @ 3% instead of 2.5%. That precisely is a matter of account and in the absence of evidence on each of the entries it would not be possible to come to the conclusion that penal charges @ 3% were charged by the opponent against the complainant. IT is in this connection that the learned Advocate appearing for the opponent would rely upon the decision of the Hon''ble National Commission in the case of Manager, St. Mary''s Hire Purchase (P) Ltd. v. N.A. Jose, reported in III (1995) CPJ 58 (NC), where it has been held that in case where default is committed by the complainant in payment of monthly hire charges the opponent would have a right to terminate the agreement without notice and to forthwith retake and recover possession of the vehicle. Hon''ble National Commission held that under such circumstances recovery of possession of the vehicle could be said to be in exercise of the right conferred upon the Financier and the Financier cannot be held as guilty of deficiency in service. In our considered opinion this decision squarely applies to the present case. In view of what is stated above and bearing in mind the facts of the case the complaint is required to be dismissed by allowing this appeal. At this stage the learned Advocate for the opponent fairly submits that if the complainant would pay penal charges @ 2.5% and other outstanding amount the opponent would return the vehicle in question immediately to the complainant. While recording the statement of the opponent we pass following order:

IMPUGNED order dated 18th May, 2004 rendered by the learned Jamnagar District Consumer Disputes Redressal Forum in Complaint Application No. 24/2004 is hereby set aside. The complaint will stand dismissed.

THIS appeal is accordingly allowed with no order as to cost. The amount of Rs. 3,000/- stated to have been deposited by the opponent in this appeal is to be verified and returned to the appellant (original opponent) by A/c payee cheque. Appeal allowed.