Order No.   43    Dated   07/09/2016

            The case of the complainant in brief is that the complainant purchased one delivery van being registration no. WE-12D-8484 model no. AccHT of Tata Motors company from o.p. 1. To purchase the said vehicle the complainant took a loan from o.p. 2 who financed the vehicle after making hypothecation. Prior to purchase, the complainant applied for loan from o.p. 2 and they duly sanctioned the loan amounting to Rs. 2,35,000/-. The loan A/C no. of the complainant is 5000487109 and the EMI was fixed at Rs. 7,670/- . The said van duly delivered to the complainant on 31/12/2009. Within one month from the date of the delivery of the said vehicle the two front rear side tires were buldging out. Due to defective tires the complainant could not able to drive the said vehicle and the he could not ply said van on road from 15/01/2010. The complainant informed the matter to o.p. 1 with request to change the defective tires but o.p. 1 did not respond. On 24/02/2010 o.p. 1 referred the matter to Shaw Automobiles Pvt. Ltd. situated at Behala, Kolkata for assessing the said tires. The said Shaw Automobile Pvt. Ltd. commented that front rear side tires and air burger have to be replaced immediately. The complainant requested o.p. 1 to replace the tires since there were one year warranty of the said tires. Inspite of non-functioning of the said delivery van the complainant used to deposit the monthly EMI @Rs. 7,670/-. On 02/02/2010 he paid his first installment. The complainant sent an Advocate’s letter on 10/09/2010 to o.p. 1 but o.p. 1 did not replace the tires since the complainant could not ply the vehicle in question he could not deposit the EMIs. The complainant paid his EMIs upto 30/07/2010. On 20/08/2010 o.p. 2 sent an agent to complainant’s house and asked for arrier EMIs. When the complainant  revealed his inability to pay the arrier EMIs the agent insulted him. Hence the application praying for direction up on o.p. 1 to replace the defective tires of the delivery van, direction up on o.p. 2 not to take away the said delivery van along with compensation and cost.

            O.p. 1 did not file the w/v and therefore the case was fixed ex-parte as against them.  

            O.p 2 had entered their appearance in this case by filing w/v and denied all the material allegations interalia stated that no prima facie case has been established against the o.p. 2. The complainant  himself approached the o.p. 2 to avail of the finance of the vehicle and enquired about the same. Subsequently the complainant entered into an agreement which was a written loan cum hypothecation cum agreement dt. 31/12/2009 with the o.p. 2 and o.p. 2 sanctioned Rs. 2,35,000/- as loan amount starting from 02/02/2010 to 02/12/2013 @7,868/- for first month’s installment and thereafter Rs. 7,670/- per month for rest 46 installments. As per contract value, the complainant was liable to pay Rs. 3,60,688/- but the complainant was the chronic defaulter since 2^nd installment dt. 02/03/2010 and not from August, 2010. The complainant paid Rs. 42,624/- as on 28/04/2011. As on 28/04/2011 am amount of Rs. 77,974/- was due towards installment, Rs. 14,018.58/- towards delay payment charges and Rs. 12,000/- was due towards expenses which amounting to Rs. 1,00,3992.58/- excluding future installment. The o.p. 2 never sent an agent to repossess the vehicle. Since the complainant was defaulter, o.p. 2 decided to repossess the vehicle peacefully on 11/03/2011 as per Clause 18(a) on the Agreement and the same was intimated to the complainant vide telegram dt. 10/03/2011. O.p. 2 also intimated the police station vide pre-possession and post-possession notices dt. 11/03/2011. At the time of argument Ld. Lawyer for o.p. 2 filed the copy of order of arbitrator. From that order it is evident that arbitration order had been passed on 09/07/2012. O.p. 2 also filed the document which shows the total accounts of the loan A/C in question and the complainant have to pay total net overdue interest Rs. 5,20,487.25/- as on 30/08/2016. The amount of overdue installment is Rs. 3,23,414/-. Therefore o.p. no. 2 prayed for dismissal of the case. Ld. Lawyer of o.p. no. 2  in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.

Decision with reasons :

            We have gone through the evidence of the parties and materials on record. It is admitted fact that the complainant purchased the delivery van from o.p. no. 1 on 04/12/2009. The complainant took loan from o.p. no. 2 but the complainant became defaulter make payment towards loan amount. It is not true that the complainant paid EMIs up to August, 2010. The complainant failed to make payment since 2^nd installment dt. 02/03/2010. The complainant received the repossession notice. To avoid the payment of EMIs towards loan amount the complainant filed the instant case by filing an application for interim injunction. The complainant had filed the instant case making allegations of manufacturing defects of the tires after plying the vehicle for more than one year. But the complainant had not made the manufacturer as a party. So it is evident that the complainant has filed the case to avoid repayment of loan amount. Complainant had not filed any document that he had approached the service centre of the manufacturing company.

            Moreover, the complainant has purchased the vehicle for commercial purpose. Therefore the complainant not termed as consumer under section 2(1) (d) (ii) of C. P. Act, 1986.

            Hence,

                              ORDERED

            The case is dismissed ex-parte against o.p. no. 1 and dismissed on contest against o.p. no. 2.

            Supply certified copy of this order to the parties free of cost.