Orissa

Kendujhar

40/2014

Pradeep Singh - Complainant(s)

Versus

Branch Manager,Srei Equipment Finance Ltd. - Opp.Party(s)

Sri P.K. Jena&Associates

02 Mar 2016

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 40 OF 2014

                           Pradeep Singh, aged about 37 years,

                           S/o- Monjit Singh of village- Padampur,

                           P.O/P.S-Joshipur, District- Mayurbhanj                   ………………..Complainant

                                                  Vrs.

1.               Branch Manager

                           Srei Equipment Finance Ltd.

At- 2^nd Floor, Singh Market Complex,

Sirajuddin Chhowk, Keonjhar

2.               Regional Manager,

Srei Equipment Finance Ltd.

Plot No. Y-10, Block EP, Sector-V,

Salt Lake City, Kolkata-700091                                 .………………..Op. Parties

 

PRESENT- Sri Akshaya Kumar Purohit, PRESIDENT

                     Smt. B. Giri, MEMBER (W)

                     Sri S.C. Sahoo, MEMBER

                      Advocate for the complainant - Sri Prasant Ku. Jena & D.P. Mohanty

                      Advocate for Ops - Mr. Bighnaraj Panda & R.R. Rana

__________________________________________________________________________________________________________________

Date of Hearing - 03.02.2016                                                                               Date of Order - 02.03.2016

__________________________________________________________________________________________________________________                                                               

SRI A.K. PUROHIT, PRESIDENT  

1.    In Revision Petition No. 130 of 2014 arising out of order dated 5.9.2014 of the present case the Hon’ble State commission has directed this Forum to give a chance to the present O.P. to file show cause to the petition U/S 13(3B) and hear the same afresh and pass appropriate order. The Hon’ble State commission further directed this Forum to give a finding whether the present complainant is a consumer or not after hearing the parties and going through the pleadings of both the parties. The Hon’ble State Commission has also observed that the issue relating to commercial purpose shall be decided by this forum after hearing the parties in the main case.

2.  After receipt of the L.C.R. parties were noticed. The O.P. has not filed a separate objection to the petition U/S 13 (3B) and raised the same in the written version. Since the case has already been ready for final hearing both the parties agreed to hear the case on preliminary issue as well as on merit of the case.

3.  The facts of the case is that, the complainant had purchased a commercial vehicle TATA LPT 3118 TC bearing registration No. OR-11-J-5019 with the financial assistance of the O.P. No.2. According to the loan agreement the complainant paid the monthly installments regularly but due to transportation problems the complainant defaulted in making payment of EMI amounting to Rs.4,71,826. Since the complainant has defaulted in making payment the O.P. repossessed the said vehicle on dated 23.7.2014. To this the complainant requested the O.Ps. to release the vehicle on receiving Rs. 2,00,000/- but the O.Ps. have did not listen to the same. The complainant alleges that without considering the request of the complainant and without any intimation the seizure of the vehicle by the O.P. is illegal and for which the complainant sustain financial loss. Hence the complaint.

4.   The O.Ps. have contested the case by filing their written version jointly. In their written version the O.Ps. have raised a preliminary objection and averred that, the complainant having his own transportation business and posses numerous vehicle and hence the complainant avails the financial assistance from the O.P. for running the vehicle for commercial purpose and hence he is not a consumer. The further averment of the O.P. is that, the complainant approached the O.P. for financial assistance to purchase of a commercial vehicle under the group of contract basis and accordingly the O.P. has sanctioned a sum of Rs.17,46,770/- and after completing all formalities a Hypothecation agreement was executed between the parties. According to the said agreement the loan amount has to be repayable in 34 EMIs @ Rs.62,050/- which starts from 15.12.2010 to 15.9.2013. According to the O.Ps. the complainant has defaulted in making payment of the monthly installment and has violated the terms and condition of the loan agreement and repossession of the vehicle does not amount to deficiency in service. Hence O.P. claims for dismissal of the case.

5.  Heard both the parties. Perused the material available on record and written argument filed by the complainant. Before going into the merits of the case it is necessary to discuss on the point of maintainability of the case. In his pleading the complainant has pleaded that he had purchased a commercial vehicle for maintaining his livelihood with the financial assistance of the O.P. In their written version the O.Ps. have averred that under a group of contract scheme the O.P. has financed 5 commercial vehicle to the complainant bearing No. HL0038538-LPT-3188, Hl0036370, HL0036263, HL0058245 and 44484. In his written argument the complainant submitted that, the complainant has availed the service of the O.P. for maintaining his livelihood.

6.  With these material available on record, it is an admitted fact that, the complainant has purchased the vehicle for commercial use. Out of the financial service provided by the O.P., the complainant is directly making profit by using the vehicle in commercial use. Now it is to be seen whether the complainant is coming within the exception as provided in the explanation of Sec. 2(d) of the Consumer Protection Act. The said Explanation reads as follows:-

“Explanation - For the purpose of this clause, “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 aforesaid Explanation is very clear that, the service availed for earning is for the purpose of self-employment. In this case the complainant has not produced any evidence either affidavit evidence or otherwise to show that, the complainant himself is employed in the use of the vehicle and he himself is driving the vehicle to earn profit for maintaining his livelihood and he has not employed any person in the use of the vehicle. The complainant has also not produce any rebuttal evidence to show that he is not having numerous vehicle and he has not employed any employee for the use of the same in commercial purpose and he himself is employed for use of the said vehicle. Therefore in the absence of any believable evidence it cannot be said that the complainant is coming within the exception of commercial purpose. Hence the complainant is not a consumer within the provision of Sec. 2(d) of the Consumer Protection Act.

7.  Coming to the merit of the case, it is an admitted fact that, the complainant has defaulted in making repayment of the loan amount. As per the loan agreement the complainant has to repay the loan amount in 34 EMI @ Rs.62,0,50/-. Therefore the complainant has violated the terms and condition of the loan agreement. Law is well settled that, if agreement permit the financer to take possession of the financed vehicles then there is no legal bar on such repossession. On perusal of the Xerox copy of the repossession intimation filed by the O.P. it is seen that, after repossession the O.P. has intimated about the repossession to the O.I.C. sadar P.S. Keonjhar and hence the O.P. has acted bonafiedly in repossessing the financed vehicle. Hence there is no deficiency in service on the part of the O.Ps.

                                         Accordingly the case of the complainant is dismissed without cost.

        

            I agree                                                                                        I agree

     (Sri S.C. Sahoo)                                                                          (Smt. B. Giri)                                                                               (Sri A.K. Purohit)

            Member                                                                                Member (W)                                                                                     President                                    

DCDRF, KEONJHAR                                                                 DCDRF, KEONJHAR                                                                      DCDRF, KEONJHAR

                                                                                                                                                     Dictated & Corrected by me

                                                                                                                                                               (Sri A.K. Purohit)                                                                                             

                                                                                                                                               PRESIDENT, DCDRF KEONJHAR