West Bengal

Paschim Midnapore

CC/119/2011

Smt. Manjushree Kumar - Complainant(s)

Versus

Branch Manager, L & T Finance Ltd - Opp.Party(s)

28 Feb 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.119/2011                                                         Date of disposal: 28/02/2013                               

 BEFORE : THE HON’BLE PRESIDENT : 

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. S.Chakraborty. Advocate.

    For the Defendant/O.P.S.                           : Mr. S. Dutta. Advocate.

          

                 Smt. Manjushree Kumar, W/o-Anup Kumar at Radhanagar, P.O.-Amlagora, P.S.-

                 Garhbeta, Dist-Paschim Medinipur………………………………Complainant.

                                                              Vs.

1. Branch Manager, L & T Finance Ltd., OT Road, Inda, P.O. & P.S.-Kharagpur, Dist-Paschim Medinipur
2. Territorial Manager, L & T. Finance Ltd., 8 No.Bake Bagan Road, Kolkata-700017
3. Regional Manager, L & T. Finance Ltd., 8 No.Bake Bagan Road, Kolkata-700017
4. Joshpal Sing, Alualia Commercial Vehicle Department, L & T. Finance Ltd., L & T House, M.M. Marg, Ballard Estate, Mumbai -400001……………………………Ops.

The complainant has filed this case contending interalia, that she purchased a track description of which has been given in the schedule of the complaint petition, with the financial help of Rs.11,00,000/- from the Ops. Thereafter the complainant liquidated the entire loan amount of Rs.11,00,000/-. The complainant also paid interest of Rs.3,38,000/- to the Ops. The Ops. also realized Rs.3,36,499/- from the complainant towards overdue charges. Thus according to the complainant she paid total amount of Rs.18,74,499/- to the Ops. The complainant alleged that the Op. illegally received money from the complainant but did not show all the receipts in the loan account. The complainant further claimed that the overdue charges were also claimed by the Ops. illegally as the complainant paid the installments in time. The complainant further contended that even after payment of the entire amount the vehicle was seized by the Ops. Thereafter the complainant requested the Ops. on several occasions to release the vehicle but the Op. illegally charged Rs.62,000/- from the complainant. On 08/11/2011 the Op. no.1 refused to release the vehicle. Thereafter the complainant filed a case against the Ops. before the court of Ld. Chief Judicial Magistrate, Paschim Medinipur. The complainant in this case prayed for release of the vehicle,

Contd…………..P/2

 

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refund of Rs.3,36,499/- as realized by the Ops. towards overdue charges, not to charge further Rs.62,000/- and also compensation.

The Ops. contested the case by filing a written statement denying the material averments as made in the petition of complaint and contended, interalia, that as per the loan agreement the terms of payment were fixed and incase of default in payment overdue interest the rate of 36% p.a. was fixed. As per the agreement the period of repayment expired on 28/07/2011 when the Ops. started asking for the dues from the complainant and on 30/10/2011 a sum of Rs.1,72,541.97/- fell due. The vehicle bearing registration no.33A4715 being the secured asset of the Ops. the same was repossessed after complying with the necessary formalities  and such fact was informed in writing to the local police Station. Thereafter the complainant settled the matter with the Ops. and paid Rs.1,49,200/- as full and final settlement as against the total due of Rs.1,72,541.97/-. Thereafter the Ops. issued no claim certificate but instead of taking possession of the vehicle of the Ops. the complainant had filed a false criminal case against the Op. which is now pending.

The Ops. specifically denied any allegation of deficiency in service or unfair trade practice on their part. So the Ops. prayed for dismissal of the case.

It is to be considered by us in this case as to whether the complainant is entitled to the relief’s as claimed.

Decisions with reasons

                  Admitted position in this case is that the complainant took loan of Rs.11,00,000/- from the Ops. under a loan agreement and by that agreement the Op. was to make repayment of loan by installments commencing from 28/09/2007 and date for payment of last installment was on 28/07/2011. The complainant complained that she had paid Rs.3,36,499/- towards overdue charges apart from the payment of interest of Rs.3,38,000/-. According to the complainant such overdue charges was realized by the Ops. illegally as the complainant had paid the installment within due date. But to support such contention that the installments ware paid within the duedate, the complainant could not produce any document. On the other hand the statement of accounts as furnished by the Ops. clearly indicates everything relating to the payment made by the complainant and the overdue charges and cheque bounce charges realized by the Ops. During hearing Ld. Lawyer for the complainant could not point out specifically any discrepancy in the statement. What the Ld. Lawyer for the complainant submitted was that every payment made by the complainant was not entered in the statement of account. But in absence of any specific document relating to actual payment by the complainant such contention of the Ld. Lawyer for the complainant can not be accepted disbelieving the statement of accounts furnished on behalf of the Ops. On the date of hearing of this case the complainant filed an incomplete statement. The summery as made in the last page of the statement indicates that the payments of principal and interest as Rs.11,000,00/- and

Contd…………..P/3

 

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Rs.3,38,800/- respectively were made by the complainant. The summary of the statement further shows delay payment of `.86,084/-. It contradicts the complaint case of payment of Rs.3,36,499/- towards overdue charges. In this case repossession of the vehicle was made by the Ops. after preparing an inventory list where we find the signature of the driver of the vehicle in question. The fact of repossession was informed to the local police station as per the case of the Ops. which is supported by document filed by the Ops. The Ops. contended that the last EMI was 28/07/2011 and as on 31/10/2011 a sum of Rs.1,72,541.97/- (One lakh seventy two thousand five hundred forty one  and ninety seven paise) only remained due from the complainant and as against that the complainant had paid Rs.1,49,200/- as full and final settlement as against the above mentioned dues and thereafter the Op. issued no due certificate and asked the complainant to take away the vehicle. From the record we find the documents relating to payment of Rs.1,49,200/- by the complainant and issuance of no due certificate by the Ops. After all these, the complainant is estopped from raising the question of excess payment.

During hearing it revealed that after repossession of the vehicle by the Ops.the complainant filed a complaint before the Kharagpur (T) Police station on the basis of which KGP(T) P.S. Case no.344/11 dated 14/11/2011 under section 420/406/506 by 34 I.P.C. was started which is now sub judice in the court of Ld. Chief Judicial Magistrate at Midnapore, Ld. Lawyer for the Ops. submitted at the time of hearing of this case that in the said police case the vehicle was seized and subsequently released in the zimma of the complainant by the Ld. Court. This fact was not denied by the Ld. Lawyer of the complainant.

Therefore the question of passing order asking the Ops. to release the vehicle does not arise. We have also found  that the complainant’s prayer for a direction upon the Ops. to refund Rs.3,36,499/- is not sustainable.

During hearing Ld. Lawyer for the Ops. specifically pressed the point that the case is not maintainable, the complainant not being a consumer under the Consumer Protection Act, 1986. He submitted that the vehicle involved in this case is a ten wheeler truck which has been used by the complainant for business purpose and not being operated by the complainant herself. In this regard the Ld. Lawyer for the complainant referred to the decision of Hon’ble Supreme Court in the case of Lakshmi Engineering Works –Vs.- PSG. Industrial Institute (AIR 1995(SC)1428).

In reply, Ld. Lawyer for the complainant submitted that for the purpose of earning bread the complainant had purchased the vehicle and put the same into operation.

It revealed during hearing that the vehicle in question is a heavy truck and being used for the purpose of carrying goods. Admitted position that the complainant did not operate the vehicle by herself. For the purpose of driving of the vehicle, a driver was engaged. All there factors clearly attract and make the decisions of the Hon’ble Supreme Court upon which the Ld. Lawyer

Contd…………..P/4

 

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for the Op. relied as referred to above applicable in this case and convince us to hold that the complainant is not a consumer under the definition of “Consumer” as per the provision of the Consumer Protection Act, 1986.

Therefore we are inclined to hold that the point of maintainability of the case also goes against the complainant.

Having regard to above observations, we are of the view that the complainant in not entitled to get any relief and as such the case is liable to be dismissed.

                              Hence,

                                          Ordered,

                                                            that the case is dismissed on contest but considering the  circumstances without cost.

Parties be supplied with copy of Judgment free of cost.                

 

                     Member                                                                                  Member