KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:11/2002. JUDGMENT DATED:1..9..2007. PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI. S. CHANDRAMOHAN NAIR : MEMBER Bajaj Auto Finance Ltd., K.V.R.Towers, Chakkorathukulam, Kozhikkode. : APPELLANT (By Adv: James Ninan) V. Mr.C.P.Majeed, Govt. L.P.School, Mavoor.P.O, : RESPONDENT Kozhikkode-673 583. JUDGMENT SMT. VALSALA SARANGADHARAN : MEMBER This appeal is against the order passed by the CDRF, Kozhikkode in OP.No:185/01 in which lower forum directed the appellant/opposite party to pay a sum of Rs.1411/- to the complainant with interest thereon at 12% per annum from the date of the complaint and also a sum of Rs.75/- towards cost. 2.The case of the complainant in brief is that, on 14..6..2000 he purchased a motorbike under a hire purchase agreement from the appellant/opposite party. The complainant alleged that while collecting the instalments excess amount was collected by the appellant/opposite party from him. Hence filed the complaint seeking an order directing the opposite party to refund the said excess amount collected to return RC book of the vehicle and the signed cheques. Which were given to the opposite party at the time of availing the hire purchase. 3. The opposite party in their version stated that the complaint is not maintainable and that they have not collected any amount in excess as alleged by the respondent/complainant. The appellant/opposite party in their version reproduced clause VIII (g) of the Hire Purchase agreement which reads as follows:- “Fail to observe and perform any of obligation hereunder on the part of hirer to be observed and performed them and in such event the hire shall forthwith stand determined without any notice to the hirer and thereupon the owner shall be entitled to take the possession of the product,……..AND the hirer hereby agrees to indemnify the owner for any cost or liability incurred by the owner by the reason of such entry or taking possession. On such termination the balance hirer instalment become due and payable.” 4. When this appeal was taken up for final hearing, there was no representation for the respondent. We heard the counsel for the appellant/opposite party. 5. The learned counsel for the appellant vehemently argued for the position that the dispute involved in the complaint is not a consumer dispute and that the complainant before the lower forum is not a consumer coming within the purview of the Consumer Protection Act, 1986 and also stated that hire purchase agreement is a civil contract and the act of appellant is as per the terms of Hire Purchase agreement only and requested for setting aside the impugned order passed by the lower forum. Appellant in its written version stated that the complainant/respondent was irregular in payment of the hire purchase instalments and the several cheques issued by the complainant have got dishonored, that the vehicle in question was seized and after collecting Rs.11632/- the opposite party has released the vehicle with the assurance that the RC book, NOC and HP termination papers will be handed over to the complainant after termination of the contract that; the act of the opposite party/appellant of seizing the vehicle is as per the terms of hire purchase agreements that by taking possession of the hypothecation, the HP finance agreement has got terminated, entire HPD balance plus penal interest became due and payable. 6. We perused all records available. It is an admitted fact that the respondent/complainant has defaulted three instalments. As per hire purchase agreement the financier can repossess the vehicle in case of default in repayment of the loan instalments. The Hon’ble Supreme Court in Managing Director, Orix Auto Finance (India) Ltd. Vs. Shri.Jagmandar Singh & Another, 2006(1) Supreme Today part 24 page 708 has clearly endorsed the rights of the financier for repossessing the vehicle in case of default by the hirer. In the present case no statement of accounts showing details of loan instalments is filed by the complainant/respondent. From the averments made in the complaint itself it is clear that the complainant/respondent committed default in making payment. As per Ext.P2 receipt a sum of Rs.11,632/- was collected from the complainant/respondent and it is admitted by the appellant also. 7. The first point to be considered is as to whether the complainant/respondent is a consumer under the Consumer Protection Act. The vehicle in question was made available to the complainant on hire purchase basis and the ownership of the vehicle vested with the financier company and the complainant is only a hirer. Hon’ble National Commission in the case of Ram Dishluhara, III (2006) CPJ 247 (NC) has held that under a hire purchase transaction the financier does not render any service within the meaning of Consumer Protection Act and the hirer (complainant) is thus not a consumer and that the complaint filed by the hirer (Complainant) was therefore, not maintainable. We are of the view that the complainant/respondent was holding the vehicle as a bailee. The motorbike in question is made available to the complainant on hire purchase basis and the ownership of the said vehicle is vested with the financier company and the complainant is only a hirer. Moreover if there is a contract between the parties, the parties are expected to act according to the terms of contract unless such contract is opposed to public policy. 8. Under such circumstances, the act of opposite parties appears to be quite unison with the terms of agreement entered into between the parties to the hire purchase agreement under which the vehicle was financed. Taking all these facts into consideration, we are of the opinion that District Forum had, thus acted erroneously in passing the aforesaid order dt:27..6..2001 and the same deserves to be set aside. In the result the appeal is allowed and the impugned order passed by the district forum is hereby setaside and the complaint is dismissed as not maintainable. There will be no order as to costs. SMT. VALSALA SARANGADHARAN : MEMBER SRI.S. CHANDRAMOHAN NAIR : MEMBER | 
