LAWS(NCD)-2004-11-154

ASHOK LEYLAND FINANCE LIMITED Vs. HIMANSHU S THUMAR

Decided On November 26, 2004
ASHOK LEYLAND FINANCE LIMITED Appellant
V/S
Himanshu S Thumar Respondents

JUDGEMENT

(1.) 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.

(2.) 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 complainant 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.

(3.) 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 instalments 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.