1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21(b) of Consumer Protection Act,  1986, against the order dated 19.12.2017 of the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 267/2017 in which order dated 16.01.2017 of District Consumer Disputes Redressal Forum, Fatehgarh Sahib (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 82/2016 was challenged, inter alia praying for setting aside the order dated 19.12.2017 passed by the State Commission.

2.       The Revision Petitioner(s) (hereinafter also referred to as Opposite Party) was Appellant before the State Commission and Opposite Party-1 before the District Forum and the Respondent (hereinafter also referred to as Complainant) was Respondent-1 before the State Commission in FA/267/2017 and  Complainant before the District Forum in Complaint No. 82/2016.

3.       The present Revision Petition has been filed with a delay of 57 days as pointed out by the Registry.  IA/10593/2018 has been filed for Condonation Delay.  Delay in filing the RP is condoned after considering the reasons mentioned in the application for condonation of delay and as adduced during the hearing. Application for condonation of delay stands disposed off.

4.       Notice was issued to the Respondent on 30.05.2018.  Respondent did not appear despite service of notice, hence, proceeded ex parte. Petitioner filed Written Arguments on 23.08.2023. 

5.       Brief facts of the case, as emerged from the complaint, from the RP, order of the State Commission, order of the District Forum and other case records are that: -

The complainant/ respondent herein purchased a TATA LPT 1109 by getting  the same financed from the OP/Petitioner herein by taking loan of Rs.7,50,000/-. On 29.06.2015 Loan Agreement was executed between the Petitioner and the Respondent. As per the terms of agreement, the vehicle being purchased by the Respondent was hypothecated as a security against the loan advanced by the Petitioner, the interest on the said loan was agreed to be charged at the rate of 12.54% p.a., the loan was to be repaid  in instalments for 47 months payable on 13^th day of every month starting from 13^th August, 2015 and ending on 13^th June, 2019. The complainant had paid loan amount upto 9th installments. The complainant alleged that OP did not provide the copy of Loan Account Statement showing decrease in loan installment from 24,000/- to 16,000/- as assured, despite repeated request of the complainant. Therefore, the complainant had stopped making payment of further loan installments. On 22.06.2016 - Agents of the OP forcefully took the possession of the vehicle and did not return it on the request of complainant. On 07.07.2016 , the complainant served legal notice to the OP seeking return of the said vehicle. In reply to the same, the OP had supplied loan data sheet to the complainant wherein the loan installment is mentioned as 23,970/- p.m. for 47 months. The OP was charging interest @ 14% p.a. illegally in place of 7% p.a. Complainant was ready and willing to pay the outstanding loan amount with interest @7% p.a., but OP did not pay any heed to the complainant's request. Therefore, the complainant filed CC/82/2018 before the District Forum, Fatehgarh Sahib seeking direction against the OP to handover the subjected truck back to the complainant plus award of 1 lakh as damages and 10,000/- as cost of proceedings.

6.       Vide Order dated 16.01.2017, in the CC No. 82/2016, the District Forum while allowing the complaint passed the following order:

“a)    To hand over the truck bearing registration No. PB-11BN-5597, TATA LPT 1109, Engine No. 497TC92AWY804288, Chassis No. MAT457403D7B02641, Model 2013 along with all the original documents relating to the said vehicle after receiving the normal due instalments in six equal monthly instalments without charging any penalty or other charges, after giving him the loan agreement, loan account and rate of interest charges etc.

b)       To pay to the complainant Rs.40,000/- as compensation for mental agony and harassment caused to the complainant and also depriving the complainant to earn his livelihood since June 2016.

c)       To pay Rs.10,000/- as cost of litigation.

          The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of certified copy of this order.  In case the OP fails to comply the same within the stipulated period the OP shall be liable to pay interest @9% p.a. on the awarded amount to the complainant till realization.”       

7.       Aggrieved by the said Order dated 16.01.2017 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 19.12.2017 dismissed FA No.267/2017 and affirmed and upheld the order passed by the District Forum.

8.       Petitioner has challenged the said Order dated 19.12.2017 of the State Commission mainly on following grounds:-

i)       The impugned order dated 19.12.2017 has been passed on erroneous assumption of facts and on presumptive surmises and without appreciating the facts and circumstances of the Petitioner’s case.  The respondent purchased the vehicle for commercial purpose and complainant does not fall within the definition of consumer.  The vehicle in question is a six wheeler truck which is used only for commercial transportation and thus the finding of the lower authorities that the said vehicle being used by the Respondent for earning his livelihood is erroneous. The Respondent was into the business of transportation since 2007.

ii)       The State Commission in its impugned order while distinguishing its earlier  decision in the case of Equitas Pvt. Ltd. Vs. Major Singh decided on 17.01.2017 in FA/665/2016 has held that “the complainant purchased a Trolla with 10 tyres which was obviously used for commercial purposes but in the case in hand, the vehicle of the complainant has only six tyres TATA LPT vehicle which is generally used for self employment by the people, sometime by driving themselves”.  The said finding of the State Commission that the vehicle in question is generally used for self-employment is nothing but an assumption and the same is contrary to the facts of the present case.  Further, the number of tyres in a vehicle does not matter, it is the purpose for which the vehicle is used matters.

iii)      The State Commission has erred in not following a binding precedent and was bound by that judgment in the case of Major Singh (supra). 

iv)      The impugned order is contrary to the settled legal position that when vehicle is purchased for commercial purpose, then the purchaser of vehicle does not fall within the definition of consumer.  Reliance in this regard is placed on the judgment passed in Pushpa Meena Vs. Shah Enterprises (Rajasthan) Ltd. I (1992) CPJ 271 (RC).

v)      The impugned order has failed to appreciate that what constitutes commercial purpose will depend on the fact ad circumstances of the case and certainly does not depend on the number of tyres in the vehicle.  In this regard, reliance is placed on the decision of the Hon’ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 SCC 583.

vi)      The Fora below have accepted the submissions made by the Respondent that the Petitioner had granted loan of only Rs.7,01,648/-

to the Respondent.  The said finding of the lower authorities is contrary to the evidence which was available on record and is based on merely presumptive surmises and conjectures.  As per agreement dated 29.06.2015, the Petitioner sanctioned a loan of Rs.7,50,000/-, out of which Rs.7,01,648/- was paid to the seller of vehicle, Rs.33,515/- was paid towards the insurance premium for the vehicle to the Insurance Company, Rs.3,437/- was paid towards credit shield and Rs.2,850/- was towards NPDC charges i.e. the charges for Petitioner’s person’s conveyance for collecting the EMI from the premises of the Respondent, further an amount of Rs.8,550/- was paid towards processing fee, thus the aggregate of Rs.7,50,000/- was actually loaned to the Respondent.

vii)     The State Commission in its order assumed that the Petitioner in contravention of its agreement dated 29.06.2015 was charging an interest @14% p.a. and thus was guilty of unfair trade practice.  However, the Petitioner advanced a loan of Rs.7,50,000/- to the Respondent and was charging interest @12.54% p.a. for 47 months which aggregates to an amount of Rs.3,76,596/-.

viii)    The State Commission failed to appreciate that notice dated 24.05.2016 was served upon the Respondent, intimating the Respondent about the outstanding due otherwise the Petitioner will have to repossess the vehicle.  The Respondent did not come forward to pay his dues and take back custody of the vehicle.  The lower authorities have ignored the said notice dated 24.05.2016 while passing the order against the Petitioner.

ix)      The averment of the Respondent that the statement of accounts was not provided by the Petitioner is without documentary evidence to that effect.  The Respondent in fact did not have any documentary evidence to show that the statement of account was ever demanded by the Respondent from the Petitioner.  The finding on the said fact by the lower authorities is on the basis of assumption and this finding that the Petitioner being guilty of deficiency of service is erroneous.

x)       The Petitioner has acted strictly as per the loan agreement between the parties.  The loan agreement has specific clause stating that in default of the payment of EMI by the Respondent, the Petitioner has right to repossess the vehicle and recover its due by  selling the same.  In this regard reliance is placed on the decisions of the Hon’ble Supreme Court in the case of The Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri Jamander Singh and Anr. (2006) 2 SCC 598, Suryapal Singh Vs. Siddha Vinayak Motors and Another (2012) 12 SCC 355 and  decision by NCDRC in Jaleshwar Shah vs. Cholamandalam Investment & Finance Co. Ltd. in Revision Petition  No. 778 of 2011.

9.       Heard counsel for the Petitioner.  Contentions/pleas of the Petitioner, on various issues raised in the RP, Written Arguments filed by the Petitioner, and Oral Arguments advanced during the hearing, are summed up below.

9.1     In addition to the averments made under the grounds (para 8), the petitioner contended that the complainant has availed the services of OP for commercial purpose, therefore he is not covered under the category of 'consumer' as defined in Consumer Protection Act. The very nature of vehicle in question i.e. TATA LPT which is a six wheeler truck is used only for commercial purpose. The complainant was into the business of transportation since 2007 and was running the same by employing drivers as is evident from the letter dated 18.07.2016 received from S.S. New Khalsa Transport Company. As per the Loan Agreement loan of 7.50 lakhs was sanctioned to the complainant.  out of which 7,01,648/- was paid to the seller; an amount of 33,515/- was paid towards insurance premium of the said vehicle; 3,437/- was paid towards credit shield; 2,850/- towards NPDC charges and further 8,550/- was paid towards processing fees. So, it was wrongly noted by the lower fora that only 7,01,648/- was sanctioned to the complainant. (Pg.200-205) The OP was charging interest @ 12.54% p.a. for 47 months as per the terms of Loan Agreement and not 14% p.a. as alleged by the complainant. The OP had duly served the notice dated 24.05.2016 to complainant intimating them to pay the outstanding dues otherwise the OP shall repossess the vehicle. While the goods were shifted by the consignor and consignee, the complainant did not come forward to pay his dues and to take back the custody of the vehicle. There is no evidence produced by the complainant to prove his statement that he has ever asked/demanded the statement of loan account from the OP. It is also contended that vide order dated 16.01.2017, the Petitioner was proceeded ex-parte and hence, District Forum allowed the complaint and directed the Petitioner to return the seized vehicle without charging any penalty or other charges.  The State Commission, without considering or heeding the submissions of the Petitioner, dismissed the Petitioner’s appeal. In support of its contentions the Petitioner has relied upon the judgments, already cited in para (8) above.

9.2     The Respondent was provided ex-parte. Written synopsis not filed by Respondent.

10.     While before the District Forum, Petitioner/OP-1 was ex-parte, before the State Commission, Complainant- Respondent was proceeded ex-parte. Considering that Petitioner/OP-1 did not appear before the District Forum despite service at the address which is same as given in the Appeal filed by Petitioner/OP-1, State Commission held; that Petitioner/OP-1 was rightly proceeded ex-parte.  As regards contentions of the Petitioner that Complainant is not a Consumer, State Commission has held that the kind of vehicle in question is generally used for self-employment, hence the Complainant is a consumer.  As regards loan amount and rate of interest etc., the State Commission has observed as follows:

“8.          A perusal of loan agreement Ex.A-1 reveals that complainant applied for loan of Rs.7,70,000/- @ 12.54% for a period of 4 years which was to be repaid in 47 installments. Loan agreement was duly signed by the complainant in Punjabi, but in loan detail, the loan amount was mentioned Rs.7,50,000/- and monthly installment was settled of Rs.23,970/-. However, in hirer ledger detail, Ex.A-4 mentioned that loan amount Rs.7,50,000/- and finance charges of Rs.3,76,596/-, whereas no explanation of finance charges is recorded. As per finance sheet Ex.C-7, only Rs.7,01,648/- was disbursed in the account of complainant. If we multiply Rs.23970x47 then amount comes of Rs.11,26,590/- whereas loan amount was only Rs.7,50,000/-. On one hand OP charged excess amount from complainant and on the other hand, they confiscated the hypothecated vehicle by alleging that complainant is defaulter in not paying the installment in time. If for argument's sake, we assume that complainant failed to pay the installment in time, then OP has remedy to charge the penal interest. It is unfair trade practice on the part of not to inform the complainant about his loan transactions and due amount.

9. It is only averment of the complainant that at the time of availing the loan, the interest was settled @ 7% p.a., but no evidence to that effect on the record. Therefore, OPs are directed to reschedule the monthly installments @12.54% which was settled in loan agreement. The parties are strictly governed by the term and conditions of the loan transactions.

10. While allowing the complaint, the District Form rightly held that OPs are deficient in their service in not providing the details of loan account and loan agreement. We do not find any merit in the appeal of OP No.1/ appellant and the same is hereby dismissed. Order of the District Forum is affirmed and upheld in this appeal.”

District Forum while allowing the Complaint has observed as follows:

“8.   After hearing the Ld. counsel for the complainant and going through the pleadings, evidence produced, written submissions and the oral arguments, we are of the opinion that it is established from the sworn affidavit, Ex. C-1, of the complainant and other documents that the OP has committed serious deficiency in service and unfair trade practice by not providing the loan agreement, not disclosing the rate of interest and loan details. And also not providing any opportunity to deposit the amount due if any. From Ex. C-7, which was supplied to the complainant after issue of legal notice, it is clear that loan amount of Rs.7,50,000/- was sanctioned and Rs.7,01,648/- was paid to the complainant. There are no details of the balance amount of Rs.48,352/-. In the letter dated 07.07.2016( Ex. C-6) issued to the complainant, initial amount has been shown as Rs.7,37,765/-, bank charges of Rs.6,135/- and other charges of Rs.10,000/- has also been shown. On what account they have been charged? When an amount of Rs.7,01,648/- has been paid as loan, then how come the initial amount is Rs.7,37,765/-. These are other unfair trade practices being indulged in by the OP.

9.   Since OP No.1 did not appear before this Forum during the pendency of the complaint, inspite of the proper & effective service of notice, the statement of the complainant submitted in the form of sworn affidavit has been taken to be true that monthly instalment of loan was fixed as Rs.19,970/- p.m. and rate of interest was 7% and that if 10 instalments @ 24,000/- p.m. were deposited, then the instalment amount shall be reduced to Rs.16,000/- p.m.

10.  Accordingly, in view of the aforesaid discussion, we find that the OP has committed deficiency in service by impounding the truck illegally and forcibly without following the proper procedure and indulged in unfair trade practice by not providing the details of the loan account and loan agreement. Hence, we accept this complaint and direct the OP :-

a)    To hand over the truck bearing registration No.PB-11BN-5597, TATA LPT 1109,  Engine No.497TC92AWY804288, Chassis No. MAT457403D7B0 2641, Model 2013 along with all the original documents relating to the said vehicle after receiving the normal due instalments in six equal monthly instalments without charging any penalty or other charges, after giving him the loan agreement, loan account and rate of interest charges etc.

b)    To pay to the complainant Rs.40,000/-  as compensation for mental agony and harassment caused to the complainant and also depriving the complainant to earn his livelihood since June 2016.

c)    To pay Rs.10,000/- as cost of litigation.

       The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of certified copy of the order. In case the OP fails to comply the same within the stipulated period the OP shall be liable to pay interest @ 9 % p.a. on the awarded amount to the complainant till realization.”

11.     As regards deficiency in service on the part of Petitioner/OP-1 is concerned, there are concurrent findings of both the Fora below against the Petitioner herein.  District Forum in its ex-parte order against the OP-1, relying on the evidence affidavit of Complainant has concluded that monthly instalment of loan was fixed as Rs.19,970/- p.m. and rate of interest was @7% and if 10 instalments @24000/- were to be deposited, then the instalment amount shall be reduced to Rs.16,000/-.  Although the State Commission in Para 9 of its order, which has been reproduced above, observed that it is only the averment of the Complainant that at the time of availing the loan, the interest was settled @7% p.a., but no evidence to that effect on record.  Therefore, OPs are directed to reschedule the monthly instalments @12,54%, which was settled in the loan agreement, the parties are strictly governed by the terms & conditions of the loan transactions.  But despite these observations, which are at variance with the observations of District Forum, the State Commission stated that District Forum has rightly held that OPs were deficient in service, there is no merit in the Appeal and the same is dismissed and order of District Forum is affirmed and upheld in the Appeal.  No efforts have been made by State Commission to see as to how much amount was due from the Complainant to the OP-1, how much amount was paid and how much was the balance payable keeping in view the loan amount, rate of interest and EMI etc. as per loan agreement.  Even if we accept the observations of State Commission about Complainant being a Consumer, using the truck in question for his self-employment to earn his livelihood, we are of the view that orders of State Commission suffers from a material irregularity and cannot be sustained in its present form.

12.     A perusal of Annexure-P1, which is the loan application form, shows that IDV of the vehicle; was 9.0 lakhs, loan amount Rs.7.70 lakhs, Amount financed Rs.7.70 Lakhs, tenure 4 years, repayable in 47 EMI, interest rate was flat 12.54% and service charge was 1%.  Annexure P-2 Loan Agreement contains a schedule as per which Assets cost is Rs.9.0 Lakhs, Loan tenure is 48 months, interest rate is 12.54%, loan amount is Rs.7.50 lakhs, repayment period is 47 months and there are few other charges like processing charges Rs.8550/- etc.  As per repayment scheme, EMI is Rs.23,970/-.  Copy of repayment schedule is reproduced below:

RE-PAYMENT SCHEDULE - Agreement No. SLCNDGR0061333

13.     Parties, having signed the said loan agreement, are bound by it.  Hence, the contentions of Complainant about lower EMI after 10 months and lower rate of interest etc. are not acceptable.  State Commission made no efforts to see as to how much amount was still payable by the Complainant. As per pre-intimation of repossession dated 24.05.2016 of the OP-1 addressed to the Complainant, an amount of Rs.6,99,770/- was due and Complainant was given an opportunity to pay this amount within 7 days, failing which, the OP-1 will be entitled to repossess the vehicle.  Another letter was issued by OP-1 on 12.07.2016 to the Complainant to pay the due amount of Rs.7,37,765/-.  This letter stated that vehicle was taken into custody by OP-1 on 02.06.2016.

14.     In view of the foregoing, order of the State Commission cannot be sustained and is hereby set aside.  Matter is remanded back to the State Commission for fresh consideration on merits after giving an opportunity of hearing to both the parties and taking note of various documents placed on record by the OP-1 and determining the exact amount payable by the Complainant as per terms & conditions of the loan agreement.  Parties are directed to appear before the State Commission on 12.12.2024. Registry shall send a copy of the order to both the parties. The State Commission will dispose off the Appeal afresh within a maximum period of three months.  Revision Petition is disposed off accordingly.

15.     The pending IAs in the case, if any, also stand disposed off.