DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 27^th day April, 2023

Present : Sri.Vinay Menon V.,  President

            : Smt.Vidya A., Member           

            : Sri.Krishnankutty N.K., Member             Date of filing 03/11/2021  

CC/190/2021

Shanavas

S/o Asainar, Thorakkattil House

Vettathur (P.O), Melattur

Malappuram - 679 326                                                       -            Complainant

(By Adv. M.C.Kuriachan)                                                             

Vs

The Manager

H.D.B Financial Services Limited

1^st Floor, Sanafa Complex

Near Seedak College, Kunnathurmedu (P.O)

Palakkad – 678 014                                                           -            Opposite party 

(By Adv. M/s Viju.K.Raphel & Siby.P.Jose)

O R D E R

By Sri.Krishnankutty.N.K., Member.

1.  Pleadings of the Complainant

The complainant had availed a vehicle loan for Rs. 4,95,520/- on 04/06/2018 from the opposite party.  The loan was repayable in 34 EMIs of Rs. 18,750/- from 04/06/2018 to 04/03/2021 and the complainant paid the installments regularly except during the moratorium given during Covid-19 period.  The allegation of the complainant is that the opposite party collected an additional amount of Rs. 59,750/- from him while closing the loan account.  Further the opposite party has not issued NOC for cancelling the hypothecation in favour of the opposite party.  Hence he approached this Commission seeking refund of the excess amount of Rs. 59,750/- collected, cancellation of hypothecation apart from a compensation of Rs. 50,000/-

2.   Notice was issued to the opposite party.  They entered appearance and filed their version.  According to them, the complainant had availed two loans from the opposite party.  Loan No: 4429577 was taken for purchasing commercial vehicle having registration No: KL-11-AG-1600.  Another loan with No: 8905596 was taken for purchasing a vehicle with Registration No: KL-10-AJ-8939.  The second loan is still pending with more than Rs.2.00 lakh as balance due.  When the complainant requested for NOC for the 1^st loan (closed already), the staff of the opposite party inadvertently issued NOC for the 2^nd loan (8909596).  The complainant has already sold this vehicle using the said NOC against which the loan is still outstanding.  Another contention is that the complaint is not maintainable under Consumer Protection Act 2019 as the loan was availed for purchase of vehicle for his commercial activities.  Further as per the agreement executed at the time of availing the loan, any matter of dispute should have been referred to Arbitration.  

3.   The following are the issues framed for consideration

1. Whether the complainant is a consumer as per the Consumer Protection Act 2019 as the vehicle purchased is for commercial purpose.
2. Whether the complainant is maintainable in view of the arbitration clause provided in the hypothecation agreement?
3. Whether the opposite party is at fault in demanding excess amount of Rs. 59,750/- for closing the loan?
4. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
5. Whether the complainant is entitled to any reliefs as sought for?
6. Reliefs if any.

4.   Complainant was continuously absent and did not file proof affidavit or mark any documents having evidentiary value.  Opposite party also did not file proof affidavit or mark any documents.  Hence the case was taken for orders on merits as the complainant was continuously absent for the proceedings of the case.

5.  Issues 1 & 2

      It is the settled position of law that the word ‘Commercial’ in the Consumer Protection Act has got a limited meaning to include only very large commercial establishments and not the activities mentioned in the complaint pleadings.  Activities commercial in nature for eking a livelihood does not come under the ambit of ‘Commercial Purpose’ under the act.

6.   Further the presence of arbitration clause do not bar this Commission from examining the issue of any deficiency in service or unfair trade practices on the part of the opposite party since as per Section 100 of the Consumer Protection Act 2019 reliefs in Consumer Protection Act are available over and above the reliefs granted under other Acts.  Hence the decision in these issues goes in favour of the complainant.

7.  Issues 3 & 4

      The issue of excess collection of Rs. 59,750/- cannot be examined in the absence of any document such as loan hypothecation statement or copy of loan agreement marked as evidence.  As both the parties have not marked any documents in support of their pleadings, this Commission is not in a position to draw any conclusion in the matter.

8.  Issues 5 & 6

      As the complainant failed to prove any of the allegations against the opposite party by adducing proper and cogent evidence, the complaint is liable for dismissal.

      In the result the complaint is dismissed and the complainant is not entitled to any reliefs.   

Pronounced in open court on this the 27^th day of April, 2023.

                                                                                          Sd/-

                                                                                                                                                                                                                  Vinay Menon V

                                                   President 

                                                           Sd/-

                                                     Vidya A

                               Member

        Sd/-

                                                                                Krishnankutty N.K.

                                                                                         Member

Appendix

Documents marked from the side of the Complainant: Nil

Documents marked from the side of opposite party: Nil

Witness examined: Nil

Cost: Nil

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.