The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Divisional Manager, SHRIRAM TRANSPORT FINANCE LTD., Nuasahi, Balia, Balasore, O.P No.2 is the Managing Director, SHRIRAM TRANSPORT FINANCE CO. LTD., Jaydev Bihar, Bhubaneswar and O.P No.3 is the Chief Managing Director, SHRIRAM TRANSPORT COMPANY Ltd., Hyderabad.

                    1. Factual matrix of the dispute is that the Complainant, being the Registered owner of one TATA LPT-2515 bearing Regd. No.OR-01L-2898 under Higher purchase agreement with the O.Ps. The Complainant was paying the loan installments before the O.Ps regularly and also was maintaining his livelihood from the income of the said vehicle. But, above said vehicle met an accident on 19.02.2014 under Dharmasala P.S and was seized by the Police Officials on the same day and was released on 14.3.2014. Thereafter, the vehicle got repaired in a garage at Soro, which was repaired within 16.04.2014. But, during the period, the Complainant has already paid Rs.24,500/- towards loan installment before the O.Ps. But, due to expenses incurred for repair of the vehicle and regular contingent expenses for further repair, the Complainant was defaulted for payment of installments in time. Thus, on 15.07.2014, the O.P No.1 without serving any notice to the Complainant forcibly took all the papers i.e. R.C Book, Insurance papers etc. from the Complainant and demanding to repay all the installment arrears of the vehicle due to the Complainant in his office. Though the Complainant has repaid Rs.19,500/- towards unpaid installments during July,2014 and also requested the O.P No.1 to return back the papers, which was taken forcibly by them. But, the O.P No.1 did not consider the same, for which the vehicle could not be engaged anywhere since 15.07.2014 to date. Thus, the Complainant sustained loss of Rs.1,500/- per day w.e.f 15.07.2014 till today and also mental agony caused by the O.Ps. Lastly, the Complainant had been to O.P No.1 requesting for return of the papers taken by them illegally, but the O.P No.1 did not return back the said papers, rather they threatened to drag the vehicle to their possession, there by the Complainant filed this case arising within the jurisdiction of this Forum. Prayer for not repossessing the vehicle and return of documents of the vehicle by the O.Ps along with claim for illegal detention and compensation towards mental agony and interest.

                    2. Written version filed by the O.Ps through their Advocate, where they have denied about maintainability as well as its cause of action. Moreover, the O.Ps have also submitted that the relationship between the Complainant and the O.Ps is that of borrower and lender and as per the established principles of Law, the Complainant does not fall within the definition of “Consumer”. As such, no Consumer dispute arises. They have further submitted that the loan agreement  contains the clause for Arbitration, where all the disputes arising out of the said agreement shall be referred to the sole arbitrator. The vehicle in question is a heavy commercial one, so as per Section-2(d)(ii) of C.P Act-1986, the Complainant can’t be treated to be a Consumer. And as per Section-2(d) (1) (ii) (Explanation) “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 words “uses them by himself”, “exclusively for the purpose of earning livelihood” and “by means of self employment” make the intention of legislature abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. Merely using a machine for earning livelihood in a commercial business does not mean that it is not for commercial purpose. Self employment connotes a different concept, i.e. the person purchasing the machine alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for his livelihood. As required under Law, the Complainant has not prima facie established the existence of any such fact that he was/is not in a position to maintain livelihood and that the truck was his only source of income. The fundamental maxim is that the plaintiffs in equity most come with perfect propriety of conduct, or with clean hands. The Complainant has filed the case maliciously to get rid of the loan liability and to escape from the legal proceedings going to be initiated against him. The Complainant has himself admitted that he has defaulted in repaying the loan. It has been stated that a duty cast upon the borrowers to repay the installments in time. If the repayments are not received as per the scheduled time frame, it will disturb the equilibrium of the financial arrangements of the Corporations. They do not have at their disposal unlimited funds. They have to cater to the needs of the intended borrowers with the available finance. No-payment of the installment by a defaulter may stand on the way of a deserving borrower getting financial assistance”. Extending financial help to a needy person and subsequent demand for recovery can’t be construed as deficiency of service. The Complainant in order to escape from loan liability and for a wrongful gain, has come up to concoct a story regarding forcible snatching of his vehicular documents. Had it been so, he should have lodged information before Police. The O.P is a company having great repute. They never threatened the Complainant for forcible repossession by applying muscle power. They have statutory power for recovery of their legitimate dues, for which they would never opt for such illegal acts. It is therefore prayed in the interest of justice that the case be dismissed with exemplary cost.

                    3. In view of the above averments of both the Parties, the points for determinations of this case are as follows:-

(i) Whether the Complainant is a Consumer under provision of C.P Act.

(ii) Whether there is a cause of action to file this case.

(iii) Whether this Consumer case is maintainable in eye of Law.

(iv) To what relief the Complainant is entitled for ? 

                    4. Basing on the above contrary pleas for both the Parties to substantiate their claim, they have filed certain documents on their behalf. Perused the same. It has been argued on behalf of the Complainant that he has purchased a vehicle TATA LPT-2515 bearing Regd. No.OR-01L-2898 by obtaining loan from the O.Ps basing on hypotheticated under the O.Ps and the Complainant was maintaining his livelihood by earning from that vehicle and was paying the installments. But due to an accident of the vehicle, it was not fit to move, for which he was unable to pay the installments and for this reason, the O.Ps have forcibly possessed the vehicle by using muscle power, for which he faced an irreparable loss and prayed for appropriate order from the Forum. On the other hand, it has been argued on behalf of the O.Ps that the vehicle is in question is a commercial vehicle and when the Complainant has taken the loan, he is not coming under the purview of Consumer under provision of C.P Act, for which he is not entitled to get any relief from this case, being not a Consumer and specifically he was using the vehicle as a Commercial one. In support of his argument, the Complainant has not relied upon any authority and simply based on the documents available in the case record. He himself admitted that he was default in payment of the installments towards loan. In support of the argument of O.Ps, they have relied upon two Authorities. In the case of M/s. Micro Hotel P. Ltd. (Vrs.) M/s. Hotel Torrento Limited & Ors. reported in Civil Appeal No.6347 of 2012, it has been held by the Hon’ble Supreme Court of India that the Corporation as an instrumentality of the State deals with public money. There can be no doubt that the approach has to be public oriented. It can operate effectively if there is regular realization of the installments. While the Corporation is expected to act fairly in the matter of disbursement of the loans, there is corresponding duty cast upon the borrowers to repay the installments in time, unless prevented by unsurmountable difficulties. Regular payment is the rule and non-payment due to extenuating circumstances is the exception. If the repayments are not received as per the scheduled time frame, it will disturb the equilibrium of the financial arrangements of the Corporations. They do not have at their disposal unlimited funds. They have to cater to the needs of the intended borrowers with the available finance. Non-payment of the installment by a defaulter may stand on the way of a deserving borrower getting financial assistance. Similarly the O.Ps have also relied upon the authority reported in the case of M/s. Cheema Engineering Services (Vrs.) Rajan Singh disposed on 01.11.1996, it has been held by the Hon’ble Supreme Court of India that for the Commercial purpose or for earning livelihood, the question there is whether the respondent has been using the aforesaid machine for self employment. The word ‘self employment’ is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof, it is included that the machine was used only for self employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. But, in the instant case, no such evidence or material is produced by Complainant though burden is on him to show that he is earning his livelihood by using that Truck and not for any commercial purpose. Further, in view of the Authority reported in 2015(4) CPR-148 (N.C) in the case of Sunny & Ors. (Vrs.) Rajesh Tripathy, where it has been held by the Hon’ble National Commission, New Delhi that financing and advancement of loan does not fall within purview of facility in connection with banking, transport etc. as mentioned in Section-2(o) of C.P Act and in such circumstances, Complainant does not fall within purview of Consumer.

                    5. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by above authorities as discussed earlier, now this Forum come to the conclusion that the Complainant is not a Consumer, for which the Complainant is not entitled for any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-        

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.

                         Pronounced in the open Forum on this day i.e. the 31st day of May, 2017 given under my Signature & Seal of the Forum.