27.02.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal u/s 15 of the Consumer Protection Act, 1986 is directed against the judgment and order dated 10.6.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Birbhum, in Complaint Case No. CC/8/O/2013, directing the Appellant/OP to return the vehicle bearing No. WB-25B/3495 to the Respondent/Complainant and also to pay to the Respondent/Complainant Rs. 30,000/- as compensation and Rs. 5,000/- as litigation cost within one month from the date of the order.
The facts of the case, in a nutshell, are that the Respondent/ Complainant purchased a vehicle bearing Registration No. WB-25B/3495 taking loan from the Appellant/OP-Financing-Company on hire-purchase scheme on the terms of repayment of the said loan on instalment basis. Thereupon the issue of default by the Respondent/Complainant in repayment of the loan and re-possession of the vehicle by the Appellant/OP was, for the first time, amicably settled finally between the parties by the judgment and order dated 4.7.2012 of the Ld. District Forum, Birbhum, in earlier Complaint Case No. 96/2011 and the said judgment and order was duly complied with by the Respondent/Complainant on payment to the Appellant/OP of decretal amount in full together with accrued interest thereon. After such full compliance with the said order of the Ld. District Forum the Appellant/OP released the vehicle in question in favour of the Respondent/Complainant. After some time of such release of the vehicle in obedience to the said order of the Ld. District Forum, which was not challenged by the Appellant/OP before any competent higher Fora, the Appellant/OP further on 9.12.2012 re-possessed the said vehicle for the second time on the plea of total agreement amount of Rs. 7,66,944/- remaining due from the Respondent/Complainant, despite full payment by the Respondent/Complainant of the outstanding settled amount with accrued interest as per order dated 4.7.2012 of the Ld. District Forum, Birbhum, as mentioned earlier. At this stage, the Respondent/Complainant moved a Writ Petition being No. WP 27602(W) 2012 before the Hon’ble High Court, Calcutta, which was disposed of directing the petitioner to agitate the issue before the competent forum. With this factual background, the Ld. District Forum passed the impunged judgment and order in the aforesaid manner. Aggrieved by such order the OP/Appellant has preferred the instant Appeal.
The Ld. Advocate for the Appellant/OP submits that the vehicle in question was, for the first time, released in favour of the Respondent/Complainant after compliance with the order dated 4.12.2012 of the Ld. District Forum, Birbhum, in Complaint case No. 96 of 2011. It is also submitted by the Ld. Advocate that even after compliance with the said order of the Ld. District Forum, as there was still outstanding amount with reference to the total amount as per agreement concerned, re-possession of the vehicle for the second time was not illegal.
The Ld. Advocate continues that the vehicle being a goods vehicle the transaction in question is related to commercial purpose and hence, the Respondent/Complainant is not a Consumer under the Consumer Protection Act, 1986.
The Ld. Advocate further submits that in the present matter an Arbitration Award (GS 71 of 2013) has already been passed and published on 20.6.2013 and hence, the Consumer Fora ceased to have jurisdiction in respect of the present case. In this context, the Ld. Advocate has referred to a decision of the Hon’ble National Commission in The Installment Supply Ltd. Vs. Kangra Ex-Serviceman Transport Co. & Another, reported in 2006 (3) CPR 339 (NC).
The Ld. Advocate finally concludes that upon due consideration of the submission thus advanced the instant Appeal should be allowed and the impugned judgment and order should be set aside, it being illegal and improper.
None appeared on behalf of the Respondent/Complainant on the date of final hearing, although prior to that date his presence was noted in the record. However, we have heard the submission of the Ld. Advocate for the Appellant/OP and taken into consideration the materials on records.
Materials on record reveal that the Respondent/Complainant, who was unemployed, purchased the vehicle in question for earning his livelihood by means of self-employment, as averred in the Petition of Complaint (Running page-3 & 14 of Memo of Appeal) and hence, the Respondent/Complainant is a Consumer as covered by Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986.
Materials on records further reveal that the Arbitration Award, as relied upon by the Ld. Advocate for the Appellant/OP to oust the jurisdiction of the Consumer Fora in respect of the present case, was passed and published on 20.6.2013, whereas the impugned judgment and order of the Ld. District Forum was passed on 10.6.2013, i.e. before passing the Arbitration Award, and hence, the Ld. District Forum was within its jurisdiction in passing the impugned judgment and order.
The recorded materials also show that following the order dated 4.7.2012 of the Ld. District Forum, Birbhum, in Complaint case No. 96 of 2012 the entire outstanding loan amount of Rs. 3,06,392/- was repaid on 9.7.2012 to the Appellant/OP-Financing-Company by D.D.No. 07736 dated 03.05.2012 drawn on BDCBL, Bolpur-136016, with interest of Rs. 28,455/- as accrued thereon for the period from August, 2011 to 7th July, 2012, and that after such repayment the Appellant/OP released the vehicle on the earlier occasion of re-possession. The recorded evidence also reveal that after full payment of the outstanding loan together with due interest in compliance with the earlier order of the Ld. District Forum in Complaint Case No. 96/2012, where the Appellant/OP did not raise any claim of additional amount as was claimed at the time of re-possession for the second time and against that order the Appellant/OP did not move any higher forum, indicating by such conduct that the loan amount was fully settled and the decree was satisfied in full. So, re-possession by the Appellant/OP of the vehicle in question on 09.12.2012 for the second time indicates gross illegality and deficiency in service as also unfair trade practice on the part of the Appellant/OP. The decision as relied upon by the Ld. Advocate for the Appellant/OP is of no assistance to the Appellant/OP as the said award was passed after passing of the impugned judgment and order by the Ld. District Forum.
In view of the above discussion and considering the totality of the facts and evidence on record we are of the view that the merits of the case incline in favour of the Respondent/Complainant and, therefore, we do not intend to interfere with the impugned judgment and order, which appears to have been passed upon correct appreciation of facts and evidence on record.
Consequently, the Appeal is dismissed. The impugned judgment and order stands affirmed. No order as to costs.
