SUNDARAM FINANCE LIMITED Vs. GOVIND SWARUP MITTAL

JUDGEMENT

(1.) A preliminary point of maintainability of this Appeal From Order has been raised on behalf of the respondents. Their say is that the first appeal would be an appropriate proceedings against the impugned judgment and award. For the purpose of deciding this preliminary question, it would be necessary to set out the facts in brief.

(2.) On 9th April, 1993, the first respondent approached the appellant M/s. Sundaram Finance Ltd., for the purchase of Tata Chassis from a dealer at Ahmedabad and as a consequence thereof, the first respondent entered into Hire Purchase Agreement dated 10th April, 1993 with the appellant. The second respondent joined in the said agreement as a guarantor. It has been the case of the appellant that the entire price for the chassis was paid by the appellant to the dealer whereas according to the first respondent, out of the Invoice of Rs. 3,76,011.69, the respondent made initial payment of Rs. 76,011.69 and made the balance payment of Rs. 3,00,000/- through the finance provided under the Hire Purchase Agreement in question. The first respondent saw to building of the truck body on the chassis and he was using the same. Total hire purchase was Rs. 4,07,000.00 repayable in 29 monthly instalments commencing from 10th May, 1993. It has been the case of the respondent No. 1 that the said amount included the finance charges (apportioned on the allocated amount of interest) in the sum of Rs. 1,07,400.00. There was an agreement to the effect that additional finance charge at the rate of 36% p.a. would be paid in case of default in payment of monthly instalment and it has been the case of the appellant that the first respondent was not regular in paying the monthly instalments.

(3.) The vehicle in question met with an accident on 10th November, 1993 resulting into total loss of the vehicle by fire. By way of enforcement of the insurance policy of the vehicle in question, the first respondent filed a case against the United India Insurance Company before the Consumer Disputes Redressal Forum at Ahmedabad and the appellant was not impleaded as a party to the said proceedings. Ultimately, the claim was settled at Rs. 4,10,000.00 with interest at the rate of 18% per annum and the Insurance Company paid the amount to the first respondent in spite of the endorsement of Hire Purchase Agreement in favour of the appellant in the Registration Certificate of the vehicle in question. On 8th September, 1995, the first respondent paid Rs. 3,23,000.35 ps., being the amount of all the outstanding instalment to the claimant. It has, however, been the case of the appellant that the first respondent did not pay the additional charges at the rate of 36% p.a., which amounted to Rs. 1,08,200.37 ps. As against that, it has been the case of the first respondent that the said amount of Rs. 3,23,000.35 ps., was paid in full and final settlement of the appellant's dues and the first respondent had paid the instalments as and when they accrued till upto the time when the vehicle in question stood destroyed by fire. Thus, according to the first respondent, following payments were made : Rs. 76,011.69 Initial payment made to the dealer. Rs. 84,365.00 Instalments paid upto the time when the truck in question stood destroyed in the accident. Rs. 3,23,000.35 Balance amount of instalments which included the finance charges. Rs. 4,83,377.04 Total The stand of the first respondent is that the first respondent had incurred additional expenditure towards the building of the truck body. That was the amount of Rs. 60,000.00 (that is the part of compensation that the first respondent received from the Insurance Company. According to the first respondent, the first respondent still remained at a loss in view of the fact that as against the payment of Rs. 4,83,377.04 ps., he received Rs. 4,10,000.00 only from the Insurance Company. That amount also included the amount spent by the first respondent towards the construction of truck body.