(Delivered by Honble Member Smt N. Tripura Sundari) This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
1. The averments of the complaint are in brief: The complainant purchased an Excavator under Hypothecation Loan Agreement with the 1 opposite party. Subsequently the complainant repaid entire loan amount tost the 1 opposite party and the 1 opposite party issued no dues certificate on 2.2.2013. st st Since then the complainant continuously requesting the opposite parties to deliver original invoice pertaining to the Excavator which was given at the time of hypothecation agreement. Inspite of repeated requests of the complainant the opposite parties failed to return the original invoice. Thus the complainant sustained huge loss as he sold the excavator to third party and he insisted the complainant to furnish the original invoice to pay the cost of the excavator. Due to sudden fall in prices of excavator the complainant sustained huge loss. If the opposite parties furnished the original invoice the complainant ought to have sold the excavator and purchase new one to meet his livelihood. As the opposite parties failed to return the original invoice the complainant was unable to sell the same and sustained loss. In the above said circumstances the complainant got issued a legal notice demanding the opposite parties to return the original invoice. The 1 st opposite party received the notice and kept quiet, which amounts to deficiency in service. Hence the complainant is constrained to file this complaint against the opposite parties praying the Forum to direct the opposite parties to deliver original invoice of the said excavator which was given to the 1 opposite party; to pay Rs.10,00,000/- towardsst damages for the loss sustained to the complainant for not producing the original invoice to his purchaser and to award costs.
2. The version of the opposite parties 1 and 2 is in brief; The opposite parties denied the allegations of the complaint and submitted that the complainant purchased L & T Komatsu Excavator with financial assistance from the 1 opposite party through their local branch office at Vijayawada i.e., 2 opposite partyst nd by hypothecating the equipment with the opposite parties and the complainant executed requisite loan documents in favour of the opposite parties. The complainant repaid the loan amount to opposite parties and the 1 opposite party issued no due certificate tost the complainant on 2.2.2013. The complainant got issued a legal notice on 15.5.2013 demanding the opposite party to deliver the original invoice otherwise he would proceed to the court of law for recovery of loss caused to him. The 1 opposite party got issuedst reply dated 13.7.2013 and mentioned that the original invoice was never deposited with the opposite parties. Therefore there is no question of return of the same does not arise. There is no deficiency in service on the part of opposite party towards the complainant and the opposite parties prayed for dismiss the complaint with costs.
3. The complainant gave his affidavit and got marked Ex.A.1 to Ex.A.6 and on behalf of the opposite parties G.Sriram Manager-Legal of the 1 opposite party gave hisst affidavit and got marked Ex.B.1 and Ex.B.2. The counsel of both parties filed written arguments.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of opposite parties in not returning the original invoice of the equipment of the complainant?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled? POINTS 1 AND 2:-
6. On perusing the material on hand the complainant purchased Excavator under the hypothecation loan agreement with the 1 opposite party through their local branchst office at Vijayawada i.e., the 2 opposite party and subsequently he repaid all thend instalments and the 1 opposite party sent no dues certificate on 2.2.2013 under Ex.A.1st to the complainant. The complainant says that after receiving Ex.A.1 he is requesting the opposite parties to deliver original invoice of the said excavator which was deposited with the 1 opposite party at the time of execution of hypothecation loan agreement. But thest
1 opposite party did not respond to the same. Therefore he got issued a legal noticest Ex.A.2 under Ex.A.3 dated 15.5.2013 to the opposite parties demanding the opposite parties to deliver the original invoice of the said excavator and stated that due to non-delivery of original invoice he sustained huge monetary loss as he sold the same to third parties and they are insisting to furnish the same to pay the cost of the equipment. Because of negligence of opposite parties in delivering the original invoice he sustained loss of Rs.10,00,000/-. The 1 opposite party got issued reply notice under Ex.A.5st dated 13.7.2013 to Ex.A.2 stating that the original invoice of the said equipment was not deposited by the complainant therefore question of delivery of the same does not arise and the complainant was advised to approach the dealer to got a duplicate copy of the invoice of the said equipment. The opposite parties addressed a letter to the manufacturer M/s L & T Komatsu Ltd., on 26.7.2005 under Ex.A.6 to deliver the original invoice (in triplicate) and other documents to the opposite parties directly. The manufacturer has to deliver those documents including original invoice stated in Ex.A.6. It is clear that the original is with the opposite parties. The copy of invoice clearly establishes that all the formalities of hypothecation are fulfilled without obtaining the original invoice the hypothecation could not completed. But the opposite parties failed to produce the agreement of hypothecation which is in the custody of the 1 opposite partyst before the Forum. If it is produced the said fact will be established. The complainant rely on the decision of N.C.D.R.C. reported in 2013(2) CPR 812 (NC) Consumer Protection Act, 1986 in which the failure of financier to handover registered documents, led to the District Forum directing the opposite parties to pay complainant Rs.10,000/- per month till the release of documents. It was upheld by National Commission. Taking into consideration of the above decision and facts of the complaint we, agree with the complainants submissions.
7. The opposite parties says that the complainant is not consumer under Section 2(d)(i) of the Consumer Protection Act, 1986. The complainant has availed finance for purchase of commercial vehicle for commercial purpose and it was financed in the name of business concern. The opposite parties relied on the decision of National Consumer Disputes Redressal Commission reported in III (2006) CPJ 247 (NC) in Ram Deshlahara Vs Magma Leasing Ltd., The facts are different to the present facts of the complaint. In this case the petitioner being in arrears of installments and having not paid the arrears despite service of demand notice by the respondent finance company, the car was seized. Service of demand notices by the petitioner is question of fact. But in the present case the complainant availed hypothecation loan in individual capacity under his firm to earn his livelihood and repaid the same with interest and the opposite parties issued no dues certificate and failed to return the original invoice of the equipment of the complainant. Thus he is the consumer and the negligent acts of the opposite parties amounts to deficiency in service.
8. We, noted that the opposite parties issued no dues certificate to the complainant on 2.2.2013 and failed to release related documents to the complainant soon after. The complainant requested the opposite parties to release the documents related to hypothecation of his equipment. As the opposite parties did not respond he got issued a legal notice through his advocate on 15.5.2013. On receiving the said notice the opposite parties washed their hands by issuing reply notice dated 13.7.2013 but did not try to deliver the original invoice. The complainant filed this complaint in this Forum on 22.7.2013 and the opposite parties reported for settlement on 31.12.2013 at final stage of filing of their affidavit and filed Ex.B.1 attested original invoice copy dated 30.7.2005. It clearly shows the negligence and deficiency in service of the opposite parties. Hence they are liable to compensate the complainant for their negligent acts. Accordingly these points are answered. POINT No.3:-
9. In the result, the complaint is allowed in part and the opposite parties 1 and 2 are jointly and severally are directed to issue a certificate to the complainant that he had deposited the original invoice of the excavator Dt.30.7.2005 with invoice No.910500919 issued by L&T Komatsu with the opposite parties and that the opposite parties lost it and could not return to the complainant on discharge of loan, to pay Rs.10,000/- (Ten thousand rupees only) towards compensation from the date of filing the complaint i.e., 22.7.2013 with interest at the rate of 9% per annum till realization and to pay costs of Rs.3,000/- (Three thousand rupees only) to the complainant. Rest of the claims of the complainant are rejected. Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 5 day of March, 2014.th PRESIDENT MEMBER MEMBER APPENDIX OF EVIDENCE WITNESSES EXAMINED For the complainant: For the opposite parties:- P.W.1 N.Veera Narayana, D.W.1 G.Sreeram Complainant Manager-Legal, (by affidavit) of the opposite parties, (by affidavit) DOCUMENTS MARKED On behalf of the Complainant: Ex.A.1 02.02.2013 Photocopy of letter from the 1 opposite party to thest complainant. Ex.A.2 15.05.2013 Office copy of legal notice. Ex.A.3 15.05.2013 Two postal receipts. Ex.A.4 08.07.2013 Photocopy of postal complaint. Ex.A.5 13.07.2013 Photocopy of letter from Tirthankar Das, Advocate, High Court, Calcutta to the counsel for complainant. Ex.A.6 26.07.2005 Photocopy of letter from opposite party to L&T Komatsu Ltd., Bangalore. For the opposite parties:- Ex.B.1 . . Photocopy of Invoice. Ex.B.2 13.07.2013 Photocopy of letter from Tirthankar Das, Advocate, High Court, Calcutta to the counsel for complainant. PRESIDENT [HONORABLE N TRIPURA SUNDARI] PRESIDING MEMBER