HARISH KURRE vs SAMIR DIXIT

THIS appeal has been filed against the order dated 24.8.2002 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as ''District Forum'' for short) in Complaint Case No. 51/2002 whereby the complaint was dismissed.

THE facts not presently in dispute are that the respondent No. 3 had purchased Minibus No. MP-23 J-0542 under hire purchase agreement with M/s. Ashok Leyland Finance Co. and as all the due instalments were not paid the vehicle was repossessed by the aforesaid finance company. Brief facts of the case as narrated in the complaint are that the complainant had purchased the aforesaid vehicle from the respondent No. 3 for self-employment by means of the sale letter but the respondent No. 3 had deliberately suppressed material information and had got the sale letter dated 10.4.2002 executed. It was further contended that respondent Nos. 1 and 2 had also given incomplete information regarding the remaining instalments in connection with the vehicle in question and had also accepted due instalments from the complainant, and as such are liable for deficiency in service. It was further contended that opposite party Nos. 1 to 3 had illegally received Rs. 4,50,000/- from the complainant in connection with the aforesaid vehicle No. MP-23 J-0542. The complainant had prayed for grant of the aforesaid sum of Rs. 4,50,000/- together with interest @ 18% per annum from the date of deposit and costs.

Respondent/opposite party Nos. 1 and 2 had filed joint reply before the District Forum and had also raised preliminary objections to the maintainability of the complaint and had emphatically denied the allegations of the complainant regarding taking money from him. Besides other things it was also contended that they had nothing to do with the claim of the complainant and had further contended that in the case the opposite party No. 3 had entered into any agreement with the complainant such an agreement was in violation of the terms of the Hire Purchase Agreement. It was also contended that the finance company was the owner of the vehicle under the law of hire purchase had an exclusive right to repossess the vehicle in case of default. The respondent/opposite party Nos. 1 and 2 also contended that the RTO had taken possession of the vehicle in question as tax was not paid by the hirer and the finance company had made payment of the tax and repossessed the vehicle in question.

RESPONDENT/opposite party No. 3 had filed separate reply and had admitted that he had sold the vehicle No. MP-23 J-0542 to the complainant for a sum of Rs. 1,10,000/- but had specifically denied the allegation made in the complaint that he had suppressed any facts regarding the vehicle in question or payment of remaining instalments to the finance company. Further that the complainant had, together with his Counsel and relatives visited the office of the finance company and had made necessary inquiries. It was also contended in the reply that the complainant had purchased the said vehicle after fully satisfying himself regarding all necessary details including the number of remaining instalments and total amount due. The opposite party No. 3 had also denied the allegations of deficiency in service. The learned Distt. Forum came to the reasoned conclusion that the complainant was neither the consumer of any of the opposite parties nor the opposite parties have committed any deficiency in service and under the circumstances, the complainant is not entitled to the relief of grant of a sum of Rs. 4,50,000/-. Accordingly, the complaint was dismissed.

THE learned Counsel for the appellant assailed the impugned order and urged that the respondent/opposite party No. 3 had deceptively sold the vehicle in question without telling about the number of instalments due for payment to the finance company and when the complainant went to the office of the finance company the concerned officers also did not tell the truth and said that a small amount only is due and they also persuaded the complainant to purchase the said vehicle. THE respondent/opposite party Nos. 1 and 2 also accepted money handed over by the complainant as such the complainant is the consumer of the opposite parties and the opposite parties are guilty of deficiency in service. THE appellant has raised a plea in the memo of appeal and also argued that the respondent/opposite party No. 3, committing deficiency in service, entered into an unlawful agreement and illegally received a sum of Rs. 1,10,000/- from the appellant/complainant. THE learned Counsel for the appellant also contended that ignoring the aforesaid unlawful agreement, the respondent/financier had accepted payment of due instalments from the appellant/complainant. THE learned Counsel prayed for setting aside the impugned order and allowing the complaint. As against this, the learned Counsel for the respondents supported the impugned order and submitted that there is no need of interference with the said order. The learned Counsel for respondent Nos. 1 and 2 contended that the respondent financiers had entered in a higher purchase agreement with the respondent No. 3 and accordingly financed for the purchase of vehicle subject to terms of the higher purchase agreement. Learned Counsel for the respondents/opposite party Nos. 1 and 2 also drew our attention to sub-para (j) of para 2 of the Higher Purchase Agreement and argued that hirer was not competent to transfer the vehicle in question without prior permission of the financier, in writing. Under the circumstances, if the respondent No. 3 has transferred or sold the vehicle in question to the complainant, or to any one for that matter, without obtaining requisite prior permission such agreement and the sale is void ab initio. The complainant cannot claim any such right under the garb of the alleged sale against the respondent Nos. 1 and 2. Regarding the allegation that respondent Nos. 1 and 2 have accepted money from the complainant the learned Counsel contended that they have nothing to do with the complainant and the money was accepted only in the account of the respondent No. 3 and the fact may be verified from the relevant receipts. The learned Counsel for respondent No. 3 contended that the respondent No. 3 had sold the vehicle to the complainant after disclosing full information regarding the remaining due instalments and the complainant, after verifying the truth from the office of the finance company and fully satisfying himself, agreed to purchase the vehicle in question and also started paying instalments. As due instalments were not paid regularly the financier has repossessed the vehicle and none else but the complainant is to be blamed for repossession of the vehicle in question by the financier.

AFTER the hearing the learned Counsels at length and perusing the record including the documents filed by the respondent/opposite party No. 3 as additional evidence, we are of the considered opinion that the learned Distt. Forum has passed a detailed and reasoned order. We also observe that the appellant/complainant has no privity of contract with the respondent finance company as they have never entered in any agreement with the appellant. It was the respondent No. 3 who had entered into an agreement with the financier and only he was entitled to raise a claim regarding deficiency in service towards him. Under the circumstances, the appellant/complainant cannot be said to be the consumer of the respondent Nos. 1 and 2. In view of of sub-para (j) of para 2 of the Hire Purchase Agreement the hirer (respondent No. 3) had agreed with the finance company ''not to assign, sell, pledge, charge or mortgage or underlet, lend or otherwise part with the possession, custody or beneficial interest in the said vehicle/s or any interest of the hirer/s therein under this agreement without the previous written consent of the Financier/Company or attempt to do or create or allow to be created any lien or change upon the said vehicle whether for repairs or otherwise or commit or otherwise suffer any act of bankruptcy (or entry into any voluntary or compulsory liquidation) or enter into any compromise or arrangement with the creditors.'' There is no material on record to show that necessary permission was taken from the finance company regarding transfer or sale of the vehicle in question. So it is clear that the respondent No. 3 has entered into agreement and sold the vehicle in question to the appellant/complainant in utter disregard of the terms of the Hire Purchase Agreement. Consequently the sale was void. The complainant cannot be said to be a consumer of the respondent No. 3 as well.

FURTHER, a simple transaction of sale and purchase between two persons does not involved the element of ''service'' as defined in the Consumer Protection Act, 1986, resultantly, there cannot be deficiency in service. Hence such case are not justifiable before the Fora constituted under Act. Further it is also mentioned in the affidavits filed in support of the complaint and also in the reply filed by the respondent No. 3 that the complainant, together with some others, had gone to the office of the finance company for making necessary inquiries. The allegation of the complainant that Shri Sameer Dixit, Field Officer of the respondent company told that only a small amount is due and on such assurance the complainant had purchased the vehicle cannot be delivered. Under the circumstances of the case it is expected of a reasonable and prudent man, to enquire at least about the amount and number of instalments remaining due prior to entering into agreement or purchasing the vehicle specially when he had gone to the office of the financier for this purpose only. It is also observed that it is clearly mentioned in the letter of sale that the subject vehicle was financed by Ashok Leyland, Raipur, some instalments were due and the appellant had accepted to pay remaining instalments. Under the circumstances the respondent No. 3 cannot be said to have committed any deficiency in service.

So far as the allegation of deficiency in service on part of respondent Nos. 1 and 2 by accepting payment from the appellant is concerned we have observed that it is evident from the receipts dated 7.6.2000 and 30.10.2000 that the amount was received by the finance company on account the respondent No. 3 as such the contention of the respondent Nos. 1 and 2 that they have not received any amount from the appellant appears to be correct. The mere fact that the appellant or his father has put signatures on the said receipts in no way proves that they have paid the amount to the respondent No. 1 or 2 on their own behalf. So it cannot be held that the said respondents have committed deficiency in service by accepting the amount as alleged by the appellant. We would also like to mention here that in the memo of appeal as well as the arguments put forth by the learned Counsel for the appellant it was contended that the respondent Nos. 1 and 2 have committed deficiency in service by ignoring the unlawful agreement and accepting money from the appellant. Once the appellant admits that the agreement was unlawful, he cannot be allowed to take any benefit under the said agreement. It is also observed that under hire purchase agreement the owner is entitled to repossess the vehicle in case of default in payment of due instalments being committed by the hirer. So, it cannot be said that the respondent No. 1 or 2 have committed any deficiency by repossessing the vehicle in question.

IN view of the aforesaid observations we are of the opinion that the learned District Forum has rightly dismissed the complaint and there is no need for any interference with the said finding. Consequently, the appeal is dismissed. However, the parties are left to bear their own costs of this appeal. Appeal dismissed.