ORDER BY HON’BLE PRESIDENT- MR. P.K. PADHI:
JUDGMENT
Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;
“Direct the opposite parties not to repossess the EICHER BS III bearing No.OD-05-AF-8881 and supply a copy of the loan agreement and account statement and to adjust the rate of interest as per the old agreement after deducting the unutilized insurance premium and to deduct the penalty interest and to receive the installment for the loan without adjusting the same in any other charges and to exonerate the complainant from any other unnecessary charges and pay Rs.4,00,000/- towards compensation”.
The brief fact of the case is that, the complainant approached the opposite parties for a loan and accordingly the opposite parties finance the vehicle loan of Rs.26,51,000/- which will be repaid in 69 installments @ Rs.62,690/- (which includes rentalised insurance and finance charges). The complainant also paid Rs.2,97,770/- towards margin money, and also paid all the expenditure towards 1st year insurance along with Rs.1,20,000/- for future insurance and charges for registration of the vehicle. At the time of agreement the opposite parties have not provided the copy of the loan agreement and have taken blank signed cheques for security purpose. The complainant used to pay the installments much or less in time and have paid all the installments till October, 2021 and due to covid-19 pandemics the vehicle could not run and even after unlock due to financial crises the vehicle could not be engaged properly and due to prolonged illness and excessive expenditure in repair of the vehicle the complainant could not able to pay some installments in time. On 26.11.2021 the opposite parties without serving any notice regarding the outstanding with proper calculation and adjustment reached to repossess the vehicle where it has been parked for repair but failed to do so as the vehicle could not move and now threatening the complainant through their agents to repossess the vehicle at any time with help of break down service without any settlement in spite of several request. On 29.11.2021 the complainant rushed to the opposite party finance to know the real state of affair but the opposite party finance refused to provide the copy of the loan agreement and other connected papers but provide account statement. The complainant paid more than Rs.27,67,213/- installments excluding D.P. but the opposite parties charged unnecessary charges which gives rise the loan amount. So there are no latches from the side of the complainant at any point of time except a foresaid charges excluding installments.
Opposite parties have filed written version stating as under;
The vehicle in question is a commercial one. Therefore, the complainant cannot be treated to be a ‘consumer’ as defined in section 2(7) of the Consumer Protection Act, 2019. As per Section 2 (d) (1) (ii) (Explanation) “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. The words “uses them by means of self employment” make the intention of legislature abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. This present complainant by suppressing the owner/co-borrower of 05 nos. of commercial vehicles, and thereby indirectly admitting his default of the complaint before this Hon’ble Commission tactfully obtained one ex-parte interim order on 08.12.2021. The complainant is the currently owner and co-borrower of 05 nos. of commercial vehicle and directly involved with the bank in execution of 06 nos. of loan contracts as borrower/co-borrower. Though after obtaining the vehicle the complainant has used the vehicle for his business and commercial purpose but not bothered to pay installments on regular basis. Furthermore, the borrower/complainant has exhausted each and every financial opportunity during the pandemic, line Covid-19 moratorium as prescribed by RBI available during 21.3.2020 to 21.8.2020 the complainant has already availed the Covid-19 moratorium and GECL loans as per the Central Govt. instruction as well as RBI guideline. Even after that the complainant is making default in paying the bank dues as per the terms and conditions of the loan agreement. However due to admitting the default and by a letter of surrender the complainant on 08.3.2022 has voluntarily surrendered the vehicle stating the fact that “I am facing difficulty in paying the installments at present, I am hereby surrendering above mentioned hypothecated vehicle/asset voluntarily out of free will and consent. Kindly dispose off the vehicle/asset and adjust the proceeds towards settlement of the above contract. Also kindly refund the surplus balance if any. In case of any shortfall towards settlement of the above contract, I hereby undertake to pay the same to Indusind Bank Limited (as per the terms and conditions of the loan agreement executed by me). The condition of the vehicle/asset and accessories is as per the inventory sheet attached. I also hereby declare that I have not left any cash or valuables in the vehicle/asset”. Thereafter as per the official procedure the opposite parties also issued a letter on 14.3.2022 thereby demanding the entire loan outstanding sum of Rs.14,47,230/- and is in process of inviting auction bids and to proceed for the early disposal of the asset as per the best market price available.
The complainant is owner/co-borrower of 5 numbers of commercial vehicles as such cannot be treated as a consumer as defined U/s 2 (7) of Consumer Protection Act, 2019 as such complainant being involved in the commercial business cannot take recourse to Consumer Protection Act as he is not engaged in all the vehicles which are used for commercial purpose. As such complainant is not able to make out a case. However while dismissing the consumer complaint we direct the opposite parties to supply copy of loan agreement and account statement to the complainant. With the aforesaid observation and direction the consumer complaint is disposed of. No cost.
