C.F. CASE No. : CC/11/72
COMPLAINANT : Asit Adhikary,
S/o Sri Amal Adhikary
of Vill. Santoshpur, P.O. Baro Jagulia,
P.S. Haringhata, Dist. Nadia
OPPOSITE PARTIES/OPs: 1) Finance Manger,
Shriram Transport Finance Co. Ltd.
6, Lyons Range, Kolkata – 700 001
2) Branch Manager,
Shriram Transport Finance Co. Ltd.
Krishnagar Branch,
16/2, D.L. Roy Road, P.O. Krishnagar
P.S. Kotwali, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 16th March, 2012
: J U D G M E N T :
In brief, the case of the complainant is that he purchased one Bolero Maxi Truck bearing No. WB 51 9448 for earning his livelihood under hire purchase agreement with OP No. 1, i.e., Shriram Transport Finance Co. Ltd. who financed a total sum of Rs. 2,40,000/- effective from 14.11.09 and as per agreement EMI was fixed to the tune of Rs. 8,700/- per month for first 12 months which would be decreased gradually and the EMI would be completed by 20.02.2013. The complainant had to pay Rs. 84,899/- as interest. As per the choice of the OP the complainant got the certificate cum policy schedule insured in his name and the said policy was valid from 10.11.09 to 10.11.10 with a sum amount of Rs. 3,22,000/-. It is his further case that on 24.07.10 the vehicle met an accident at which it was badly damaged and so it was sent to Maa Automobiles, Bara Jaguli for necessary repairing. The complainant immediately informed the matter to the financier as well as the Insurance Co. for necessary investigation and assessment of the quantum of damage. Accordingly, the OP No. 3, Insurance Co. appointed his surveyor Sri Abhijit Dutta who inspected the vehicle and as per his instruction the complainant repaired the vehicle at a total cost of Rs. 1,79,000/-. Thereafter he submitted the original bill along with necessary documents to the office of the OP No. 3 for sanction of the repairing cost. But he did not get any response from the OPs for months together. So he met the office of the OP No. 1 & 2, but to no effect. On 30.10.10 he wrote a letter to the OP No. 3 sending a copy to the OP No. 1 enquiring about the insurance claim, but to no effect. From the office of the OP No. 3 he got an information that one cheque amounting to Rs.1,09,500/- was already sanctioned and the sum was sent to the OP No. 1 who encashed the said cheque on 15.09.10. On getting the information he at once met the OP No. 1, who advised him to talk with his office at Krishnagar i.e., the OP No. 2 as the claim would be disbursed from that office. This complainant used to pay the EMI regularly and up to 21.12.10 no amount of EMI was due. As the complainant could not pay the repairing expenses including charge of mechanic in full to the Maa Automobiles, so the vehicle stood idle since 24.07.10 at the garage of Maa Automobiles. The OP No. 1 & 2 withheld the claim amount given by the Insurance Co. for last 8/9 months as a result of which the complainant suffered a huge loss to the tune of Rs. 1,80,000/-. The OP No. 3 was negligent in not sending the cheque to this complainant and also failed to assess the total damage by way of avoiding to accept all the bills and cash memos produced by the complainant. It is his submission that due to non-receipt of the cheque amounting of Rs. 1,09,000/- he then lost of Rs. 1,80,000/- as he could not make the vehicle in running condition after accident. He also submits that the OPs made harassment to him by withholding the claim amount without assigning any reason and non-disbursing the same to him. So having no other alternative he has filed this case praying for the relies as stated in the petition of complaint.
The OP No. 2 has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form and nature in law. There is no denial on his side regarding financing and hypothecation to the complainant’s vehicle by him, but it is his submission that the complainant did not pay EMI amount regularly as a result of which he is a defaulter. He further submits that this OP informed the complainant that the cheque was disbursed by the Insurance Co. amounting to Rs. 1,09,500/- and learning this the complainant became furious and refused to collect the said amount from the OP No. 2. He also threatened this OP that he would take legal action against the OPs in this matter. This OP further submits that as per the rules of the finance the cheque of the insurance claim is delivered to the finance Co. of the vehicle and after deducting this of the financer, balance amount shall be transferred to the account of the borrower as per terms of the contract between the OP No. 2 and the complainant. This complainant is bound to pay the EMI amount regularly. But in the instant case, the complainant did not pay the EMI amount in time. Practically he is a defaulter in payment of the EMI amount. So this complainant has no cause of action to file this case and the same is liable to be dismissed.
As per prayer of the complainant, OP No. 3, Bajaj Allianz General Insurance Co. Ltd. was expunged from the cause title of the petition of complaint vide order No. 3, dtd. 31.01.12. The OP No. 1 is the Finance Manager of Shriram Transport Finance Co. Ltd. of Kolkata Office and has not filed any separate written version in this case.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
Point No.3: Is the complainant a consumer?
Point No.4: Is the case maintainable in its present form and nature?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written version filed by the OPs along with the annexed documents, it is available on record that this complainant purchased one Bolero Maxi Truck bearing No. WB 51 9448 under the hire purchase agreement with the OP No. 1, i.e., Shriram Finance Co. Ltd. who financed a total sum of Rs. 2, 40,000/- effective from 14.11.09 to 20.02.13. From the documents filed by the complainant it is available that he had to pay EMI @ Rs. 8,700/- per month for first 12 months and thereafter, it would be decreased gradually. This complainant paid EMI up to 20.08.10 @ Rs. 8,700/-. Complainant’s specific case is that his vehicle was badly damaged in an accident on 24.07.10 which was repaired by Maa Automobiles at a cost of Rs. 1,79,000/-. After inspection by the surveyor the OP No. 3, Insurance Co. sanctioned an amount of Rs. 1,09,500/- and the cheque was sent to the OP No. 1 which is not denied by the OP No. 1. Complainant’s specific allegation is that though the OP No. 1 received the cheque but he did not either inform him about that cheque nor disburse the same to him, as a result of which he suffered a huge loss and for this deficiency in service he has filed this case. Regarding this it is the categorical assertion of the OP that he intimated the complainant about the receipt of the cheque and asked him to take delivery of the same, but the complainant refused to take the cheque, rather threatened to take legal action against him. So it is clear to us that a cheque amount of Rs. 1,09,500/- was sent by the Insurance Co. to the financier (OP No. 1) who deposited the cheque amount in the loan account of the complainant on 15.09.10. Complainant has categorically stated that after long time he learnt from the Insurance Co. that the cheque was sent to the OP No. 1. He has not stated any where in his petition of complaint that he at any point of time asked the OP No. 1 & 2 to disburse the cheque amount to him. On the other hand, there is no document on the side of the OP No. 1 & 2 that they at any point of time asked the complainant to take delivery of the cheque excepting the recitals made in the written version to the effect that they asked the complainant to take delivery of the cheque who refused to accept it. On 18.11.10 the complainant sent a letter to the OP No. 2 with a request to intimate him about the fate of the bills produced by him before the OP as well as the Insurance Co. From the documents filed by the complainant and from this letter dtd. 18.11.10 it is available on record that since 20.08.10 he did not pay any of the EMI amount to the OP No. 1 & 2. Practically, he remained silent on this point and long after he filed this case on 26.08.11 and within this period 12 EMIs were already due. So he himself violated the terms of the EMI agreement in not repayment of the EMI amount in time to the OP No. 1 & 2 and the total EMI amount would be Rs. 1,04,400/-. Considering all these documents, we find that the complainant himself is a defaulter in not paying the EMI amount up to date.
Ld. lawyer for the OP submits that the complainant is not a consumer under the OPs and this case is not maintainable in the eye of law on the ground that the OPs did not render any service to the complainant. So no question of deficiency in service on their part does arise. Now the question is whether the complainant is a consumer in the eye of law and has any cause of action to file this case. It is decided by the Hon’ble State Commission, Kerala as referred in 2009 CTJ page No. 1316 (CP) (SCDRC) where the Hon’ble State Commission decided that “Under a hire purchase transaction, the financier renders no service to the hirer or complainant who only holds the vehicle as a bailee of the owner – Hence, the hirer cannot be a consumer under the Act.” The Hon’ble State Commission has relied on a decision of the Hon’ble National Commission in this connection as mentioned in III 2006 CPJ page 247 where it was observed that “Under a hire purchase transaction the financier does not render any service within the meaning of Consumer Protection Act and the hirer is thus not a consumer.” The Hon’ble State Commission also decided that “The hirer (complainant) held the vehicle as a bailee of the complainant and was not to have any proprietory right or interest as purchser and as per law on the subject, it cannot be said that the complainant had hirerd the service of the petitioner to fall within the purview of consumer as defined in the Consumer Protection Act.”
Considering the facts of this case, we hold that this decision is applicable in the instant case also as the complainant purchased the vehicle on hire purchase agreement of the OP No. 1. We do also hold that in view of the above cited decision of the Hon’ble State Commission the complainant is not a consumer as per the Consumer Protection Act and he cannot get any relief in this case.
In view of the above discussions and taking together the facts of this case, our considered view is that the complainant is not a consumer in the eye of law. So he is not entitled to get any relief as prayed for in this case. In result the case fails.
Hence,
Ordered,
That the case, CC/11/72 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
