Presented by Sri P.N.Dash, President .

The Complainant filed a complaint case against the Opposite Party financier company on Dt.09/03/2010 to realize the compensation amount of Rs.50,000/-(Rupees fifty thousand)only as he claimed for deficiency in service on the part of the Opposite Party towards the Complainant along with Rs.11,200/-(Rupees eleven thousand two hundred)only as the fine amount paid by the Complainant to R.T.O. Berhampur for not providing the Insurance Certificate of the vehicle financed by the Opposite Party to the R.T.O. On his surprise checking on 20/12/2009 which is a direct cause of deficiency on the part of the Opposite Party by not providing the Insurance Certificate in time to the Complainant along with Rs.8,500/-(Rupees eight thousand five hundred)only as R.P.O. Charges (Repossession charges) paid by the Complainant to the Opposite Party which is also a consequence of the cause of deficiency on the part of the Opposite Party. So the Complainant knocked at the door of the Forum to realize the same amount. Further allegation of the Complainant is that the Opposite Party Financier Company snatched away the vehicle by using his muscle power during the pendency of the case at this Forum. The Complainant an unemployed youth run the vehicle a 'Jeep TX' for his livelihood and by snatched away the vehicle by the Opposite Party for non-payment of installment dues the Complainant suffered a lot which effected his livelihood. Delay payment of 3%(three percent) also charged by the Opposite Party against the Complainant. The Opposite Party has not responded about the fine charged by the R.T.O. Berhampur inspite of Fax message sent by the Complainant on the next succeeding day. The Opposite Party has not supplied the Insurance Certificate to the Complainant till to the date of Dt.30/04/2010. So till that period the Complainant has not able to get the R.T.O. fitness certificate and by that not able to run the vehicle on the road and it is a direct course of non issuance of Insurance Certificate by the Opposite Party. The Complainant intimated the matter of the vehicle snatching by the Opposite Party to the S.P. of the District, so also intimated the matter to the Court and prayed for an interim order to stay but the learned Forum dismissed the same on Dt.03/05/2010. An arbitration proceeding on the matter was intimated and awarded was also passed on Dt.03/03/2010. The Opposite Party demanded the R.P.O. Charges from the Complainant during the pendency of the case at this Forum. According to the Complainant liabilities lies on the Opposite Party and being as the Financier Company deficiency in service is apparent on him. Hence appropriate damage compensation along with fine amounts should be realised from the Opposite Party as the Complainant stated in his complaint petition and during the course of argument. In his support the Complainant has filed appropriate documents which were verified and found to be true.

The case of the Opposite Party is that as because he is a financier company who financed the vehicle no liability lies on him as no buyer-seller relationship or hire-purchasing principle is established. Financier company is not liable to issue the insurance certificate in time, but it is the duty of the insurance company to issue the same. Insurance charges is a financial matter to be realised by the insurance company and not by the Financier company hence Insurance Company is solely responsible and be liable for any deficiency in perfuncted by anybody. In the agreement deed between the Complainant and the Opposite Party the Complainant obliged to abide all the norms of the agreement deed and in accordance with it the default charge of Rs.61,240/-(Rupees sixty one thousand two hundred forty)only and D.P.C. charges of Rs.26,105/-(Rupees twenty six thousand one hundred five)only is calculated and imposed rightly on the Complainant. Accordingly to Opposite Party the Complainant is not a consumer U/S 2(1)(d) of Consumer Protection Act-1986 as buyer seller relationship is not established by the said agreement deed. Moreover, when the agreement deed empowered the Arbitrational Court to deal the matter the Forum lack jurisdiction. The Arbitrational Court awarded on the matter. According to Opposite Party the principle of “Principal to Principal basis” will come into force in this case and the Opposite Party is made a party by wrong, hence the case is liable to dismiss on the principle of 'non-joinder of necessary parties'. Further submission of the Opposite is that no FIR was lodged at the local police station by the Complainant regarding snatched away of the vehicle by the Opposite Party. So also no Station Diary entry was entertained by the Complainant.

Heard the counsels, perused the record and the Forum comes to such findings that:-

(1) That, the complaint is the customer of the Opposite Party hence a consumer under this act and entitled to file the case.

(2) The case is within the territorial jurisdiction of this Forum and within the perview of the time limitation.

(3) Both the Parties admitted the non-issuance of the Insurance Certificate to the Complainant but the Opposite Parties denied the same on the ground of his liability and deficiency in service to that effect. Both Parties admitted the matter of surprise cheeking and fine by the R.T.O. Berhampur for not submitting the Insurance Certificate by the Complainant and also admitted the R.O.P. charges (repossession charges) imposed by the Opposite Party.

(4) The main contention of the Complainant is that due to non-issuance of Insurance Certificate of the vehicle to the Complainant by the Opposite Party, the Complainant failed to get a fitness certificate of his vehicle and unable to run it on the road. So deficiency lies on the Opposite Party. Moreover, the Opposite Party snatched away the vehicle by forcefully from the Complainant during the pendency of the case as submitted by the Complaint. To its reply Opposite Party relies on the following decisions.

(i) Consumer complaint No.81 of 2008 decided by S.C.D.R.C., Orissa, Cuttack on Dt.30/11/2009, (ii) 2006(3) C.P.R. 339 (NC), (iii) 2010(2)C.P.R. 140 (NC).

The decision reported in the judgment well discussed by the State Commission, Orissa in the case of Depak Kumar Sahu Vrs Indusind Bank Ltd. on Dt.30/11/2009 stated that it is pertinent to mention here that under a Hire Purchase transaction the financier does not render any service within the meaning of Consumer Protection Act-1986 and hence it can't be said that Complainant had hired the services of the Opposite Party within the purview of Consumer as defined in the Consumer Protection Act-1986. This observation is also made clear by the Hon'ble National Commission in the case of Ram Deshlahara Vrs Magma Leasing Ltd. Reported in 2006(III) C.P.J. 247 NC. Hence the Complainant is not a 'Consumer' to maintain the case against the Opposite Party company. The case is a victim of 'non-joinder of necessary Parties'.

(5) That it is pertinent to mention here that a consumer complaint can not be decided by the Consumer Fora after an Arbitration award is already passed. The said principle is well discussed by the Hon'ble National Commission in the case of the Installment Supply Ltd. Vrs Kaangra Ex-servicemen Transport Co and Another and reported in 2006 (3) CPR 339 (NC). An arbitration award has already passed in this case on Dt.03/03/2010, prior to the filing of the case at the Fora, hence the case at this Forum is not maintainable.

(6) That, the Complaint of the petitioner is not maintainable on the settled principle of law that as per the hire purchase agreement the financier was authorised to repossess the vehicle in case of default in repayment of installments and No case of deficiency in service is maintainable, which principle is well discussed by the Hon'ble National Commission in the case of Surender Kumar Agrawal Vrs. Telco Finance Ltd and another reported in 2010(2) C.P.R. 140 (NC). Both parties admitted that the Complainant was at default to pay the installment of the vehicle. The agreement deed between them also revealed the truth that in case of default by the Complainant the Opposite Party can snatch away the vehicle without any legal hindrances. So according to the above decision repossession of the vehicle by the Opposite Party is not illegal but whether the Opposite Party has snatched away the vehicle forcefully by utilizing his muscle power ? Nothing on the record shows that the vehicle was repossessed by using brute force. Absence of the signature of the driver on the seizure list or absence of signature of Complainant on seizure list did not establish the case of using muscle power for repossession. Over writing regarding policy certificate at the time of deposing vehicle after repossession as alleged by the Complainant is also not substantially proved by him. Over writing does not mean a 'forgery' or any illegality unless proved by the Complainant. Presumption lies that it may be a mistake of the pen corrected by the author. It is a matter to be proved by oral and documentary evidences which the Complainant failed to do so. Entire onus lies on the Complainant, he has to stand on his own leg. He is not entitled to take benefits or advantages out of the Opposite Party or from his latches.

(7) The decisions cited by the Complainant is not applicable here. He cited AIR 2003 Punjab and Hariyana 2003 page 98. The Complainant failed to prove the transaction between both the Parties lies on the principle of hire purchasing and not a loan transaction. Hence the decision is not applicable here. He cited another decision reported in 2006(1) C.P.R. 55 (NC) which is also not applicable here as because when the repossession of the vehicle through the muscle power of the Opposite Party is not substantially proved and established in that case the decisions have no relevant merits to this context.

(8) The submission of the Complainant that he was unable to run the vehicle on the road is not tenable in the eye of law as because the surprising checking of the vehicle was done on the road on the running condition of the vehicle by the R.T.O. of Berhampur. So the relief claimed by the Complainant in the respect is not sustainable. Complainant did not submit in the plaint or in the court that frequently he was unable to run the vehicle on the road.

(9) The case is not maintainable on the “principle of non-joinder of necessary Parties”. The Insurance company was not made a party in the case though he is a necessary party having more legal footing then a proper party for the just decision of the case.

Finally the Forum comes to a conclusion that Opposite Party is not liable for any deficiency in his service as because he is the financier of the vehicle only. Issuance of insurance certificate is liability of insurance company but not of the financier company. Financier company can only finance the vehicle. The Complainant failed to establish the fact that it is the duty of the Financier company to issue insurance certificate the Complainant. So also the Complainant failed to established the fact that the vehicle was forcefully snatched away from the Complainant by using muscle power. Nothing on record boost the truth to ascertain that illegal means was adopted by the Opposite Party. Hence the case is devoid of any merit and be dismissed by the Forum.

No cost to nay party.

The case is disposed of accordingly.

Typed to my dictation

and corrected by me.

(Sri Pramath Nath Dash)

P r e s i d e n t.

I do not agree,

The complaint filed at the District Consumer Disputes Redressal Forum are to be judged on merits based on the facts and documents provided and should not try to abstain from delivery justice on various technical grounds and loop holes.

Hence the facts of purchase/finance of the vehicle is admitted, the point of checking and fining is admitted. The arbitration settlement and payment is also not denied. The contention raised by the Opposite Party was that the Complainant is not a consumer of the OP so no consumer dispute arises and the insurance company was not made a party so the defect of non joinder of party arises. At various points if time the national commission judged this kind of matters which are reported in various consumer journals that even in case of hypothecation and hire purchase cases consumer dispute can be entertained and also there are cases where it was pointed that and because of non joinder of parties the case should not be dismissed.

Complainant's grievance is that because he was not issued insurance certificate he has to bear the fine charged by Berhrmpur Inspector who checked vehicle for which the OP are liable as they accepted all the money from the Complainant at various times. The documents of checking report reveals that at the time of checking of the vehicle the Insurance policy was not there along with other documents required by the RTO.

But the repossession sheet shows the Insurance Certificate being there while repossession of the vehicle on Dt.11/04/2010 but corrections being made in the repossession sheet raises doubts regarding the same. As submitted by the Complainant he was not able to ply the vehicle lacking the Insurance certificate is considered, as to get some earring he was forced to ply the vehicle at some time to get some money to run his family. However, the Complainant accepted that he got his IC on Dt.30/04/2010 after repossession is confusing.

The Insurance policy settlement the important information sheet attached to the policy shows that in case of accident the Complainant should Ist inform the megma office giving the policy no to arrange for a survey, obtain claim form from the magma office to file claim, thus when magma office is able to arrange a surveyor in case of accidents the OP can not abstain saying that he has no role in providing Insurance service, it can also be presumed that the insurance charges have been collected by them an behalf of the insurance company without giving cash receipt enabling faulty practice and unfair trade service. It is also presumed that the insurer and finance have nexus in between them providing services and particularly the OP here is the one through whom the insurance are undertaken.

Hence, the OP is liable for service not insisting the Complainant to get the Insurance Certificate in time for which he was fined when checked by RTO, Berhampur.

The OP is hereby directed to pay back the Rs.11,200/-(Rupees eleven thousand two hundred)only fine paid by the Complainant to the RTO Berhampur, and Rs.5000/- for mental suffering harassment including the litigation cost within one month form the order failing which an interest of 10% will be charged till final realization of the award amount.

Disposed accordingly.

Typed to my dictation

and corrected by me.

( Mrs Anjali Behera)

       Member.