J U D G E M E N T

This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice as the OPs in connivance with each other had re-possessed his vehicle illegal and unlawfully for which he had to suffer monetary loss and harassment for a prolonged period.

The brief fact of the case of the Complainant is that being the owner of a truck, which was purchased by him by obtaining financial assistance from the OP-1 to the tune of Rs.19,30,000=00. The entire loan amount along with agreed interest component was schedule to be repaid by 46 monthly installments. As per the loan agreement the Complainant was under obligation to pay a sum of Rs.53,150=00 per month towards EMI. But the OP-1 did not provide him the copy of the said agreement till filing of this complaint. The said truck was under the coverage of an insurance policy, which was valid up to 17.11.2015 and he obtained valid permission from the Government authority to ply with the vehicle. The Complainant used to pay monthly installments on a regular basis and lastly paid on 10.03.2015 by cash to the OP-1 and the OP-1 issued a receipt against such payment. On 16.04.2015 while the said truck was returning back from Bihar to Burdwan at about 6.30 P.M. the officers and the musclemen of the OP-1 & 3 took possession of the said vehicle forcefully without issuing any notice, demand notice, final notice nor taking any permission from the Court or Administrator. During repossession of the vehicle the OPs did not bother to follow any norms, rules, law as per statute and to abide by the settled principles of law. The OPs in connivance with each other have committed a gross irregularity at the time of taking repossession of the vehicle. Subsequently the Complainant informed the matter to the concerned police station in writing, but the P.S. refused to receive the complaint. On 18.04.2015 the Complainant send written objection to the O.C. Sadipur Police Station, S.P. of Birbhum and the OP-1 and 2 through register post. Though the same were duly delivered, but to no effect. After repossession of the vehicle the OPs have prepared an inventory list and the same was delivered to the driver of the Complainant on the same date. But the inventory list did not bear any signature of the OPs and the same was not prepared in a proper manner as all the inventory items had not been mentioned in the list. Therefore the said list is not legal, rather fake and forged one, which does not bear any evidentiary value. On 16.04.2015 the Complainant got one call over telephone through which some demand was made by the OP-1 towards some installments, but no demand notice was issued in his favour. The Complainant had humbly replied that he is ready to pay the due amount, if any, but the OPs did not take any positive steps in this regard. On 18.04.2015 the Complainant went to the office of the OP-1 along with an A/c payee cheque amounting to Rs.4,25,000=00 for making payment to the OPs against due EMI, but the OP-1 refused to receive the said cheque and demanded a huge amount from him, which is illegal. On 20.04.2015 the Complainant issued a letter to the OP-1 and 2, but without any effect. The said vehicle is still lying under the possession of the OPs and due to this reason he has been facing huge financial loss and he is apprehending that if he will not get return back the vehicle in previous good condition, then he will be in a position to make payment of the EMI in subsequent installments as per schedule. The OPs ultimately released the vehicle after making an agreement with the Complainant. According to the Complainant due to such illegal detention of the vehicle under the custody of the OPs, he had to face financial loss and the same should be compensated by the OPs and such detention can be termed as unfair trade practice on behalf of the OPs. As his grievance have not been redressed by the OPs before coming to the Court of law, hence the Complainant has approached before this Ld. Forum praying for direction upon the OPs to pay a sum of Rs.3,50,000=00 to him towards loss and harassment, Rs.50,000=00 towards loss of his good will, Rs.3,000=00per day towards financial loss as he could not ply the vehicle on road, Rs.50,000=00 as compensation due to harassment, mental agony and pain and Rs.25,000=00 towards litigation cost to him.

The petition of complaint have been contested by the OPs by filing conjoint written version denying all the allegations as made out by the Complainant in the petition of complaint. The OPs have contended that at the time of getting loan from the OP-1 the Complainant perused the terms and the conditions of the loan agreement and being satisfied with the same the Complainant obtained the loan to the tune of Rs.19,00,000=00. The rate of interest, tenure of the loan, payment of EMI, numbers of installment was clearly explained to the Complainant by the OP-1. But the Complainant had miserably failed to repay the due EMI within the specified period as per the loan agreement. Though requests/reminders were issue by the OPs to the Complainant directing him to make repayment of the EMI, to no effect. As the Complainant had failed to repay the due EMI within schedule date, the vehicle was repossessed as per the terms and the conditions of the loan agreement. According to the OPs repossession was made after giving him prior notice along with demand notice. As per the order dated 19.05.2015 passed by this Ld. Forum in MA Case No-34.2015 the OPs have released the vehicle, but still a sum of Rs.4,74,000=00is due from the Complainant, which he is liable to pay as per the loan agreement. The OPs have stated that this complaint is not maintainable before this Ld. Forum as the vehicle was purchased for commercial purpose, hence the Complainant cannot be termed as consumer. In this respect the OPs have mentioned some rulings of the Hon’ble NCDRC. The OPs have prayed for adjudication of this complaint on the point of its maintainability at first. According to the OPs the complaint is liable to be dismissed.

We have carefully perused the record; documents filed by the Complainant, rulings mentioned by the OPs and heard argument at length advanced by the Ld. Counsel for the parties.

At the very outset we are to adjudicate as to whether this complaint is maintainable or not before this Ld. Forum as the OPs have taken the plea that the vehicle was purchased by the Complainant for commercial purpose. In the Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 it is enumerated that-

(ii) Consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person who avails of such services for any commercial purpose,

For the purpose of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment.

From the document it is revealed that the Complainant purchased a Multi Axle Goods Vehicle, which obtained National Permit. Within the four corners of the petition of complaint it is not written that the vehicle was purchased by him for earning his livelihood by means of self-employment. Though in the last sentence of the paragraph no-1 of the petition of complaint it is written by the Complainant in handwriting that ‘Complainant ply vehicle for his livelihood’, but we have noticed that the said sentence was written by the Complainant after affidavit and the signature put therein not by the Notary because the Notary has put his signature with green ink, but the said signatures were put in blue ink. After affidavit some can be incorporated in the said affidavit by any party and if anything incorporates, the same should be signed by the Notary Public. But in the case in hand the Complainant has violated the settled legal proposition. Apart from that no content is available from the pleading of the Complainant that in which manner the vehicle is used by means of self-employment, rather it is clear that the Complainant had entrusted one driver to ply the vehicle on road. Hence for the sake of argument if it is hold that for earning his livelihood the vehicle was purchased, but there is no averment in the complaint regarding his self employment. Therefore it is proved that the Complainant had purchased the vehicle for commercial purpose as there is no evidence adduced by the Complainant that the same was purchased for earning his livelihood by means of self employment.

Now, we are also inclined to adjudicate the complaint from its pecuniary jurisdiction, It is mentioned in the petition of complaint that the Complainant had availed of loan to the tune of Rs.19,30,000=00. In the prayer portion the Complainant has sought for Rs.3,50,000=00 towards the loss and harassment, Rs.50,000=00 as compensation etc. In the Section 11(1) of the Consumer Protection Act, 1986 it is mentioned that ‘subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.’ But in the case in hand if we add Rs.4,00,000=00 as sought for compensation due to harassment, mental pain and agony with Rs.19,30,000=00 which the Complainant obtained from the OP-1 as loan, then the total amount will reach at Rs.23,30,000=00, which obviously exceeds the pecuniary jurisdiction of this Ld. Forum. Hence, this complaint is maintainable being barred by pecuniary jurisdiction.

As the instant complaint being not maintainable before this Ld. Forum, we are not inclined to go in the merit of the case.

Going by the foregoing discussion, hence it is

O r d e r e d

 that the complaint is dismissed on contest without any cost being not maintainable as mentioned above.   

Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

Dictated and corrected by me.                                                                

                  (Silpi Majumder)

                         Member

                DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                                 Member                                          Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan