Consumer Complaint No.101 of 2015

Date of filing: 13.4.2015                                                                         Date of disposal: 19.8.2016

Complainant:               Ekta Devi, W/o. Govind Kumar, 342 Nirmal Bhavan, Khaluibill Math, G. T. Road, Burdwan, PO, PS. & District: Burdwan.

-V E R S U S-

Opposite Party:    1.     Branch Manager, HDB Financial Service Ltd., 27/1, G. T. Road, East end, PO: Sripally, PS. & District: Burdwan, PIN – 713 103, at present at HDB Financial Service Ltd., Talk of the Town, 398 G. T. Road, Burdwan – 713 101.

2.      HDB Financial Service Ltd., Second Floor, Gokul Towers, Opp. Model House, Panjagutta, Hydrabad – 500 082.

3.      Register Office at Badhika, 2^nd Floor, Law Garden Road, Nayrananura, Ahmadabad.

Present:       Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:            Ld. Advocate, Sumit Roy.

Appeared for the Opposite Party (s):  Ld. Advocate,Sayak Ranjan Ganguly.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the Ops as the Ops have sold out his vehicle and cancelled the route permit of the questioned vehicle.

The brief fact of the case of the complainant is that he being an owner of a Tata LPT 3118 Truck bearing engine No. 21D6325511 and chassis No. MAT466419C2D09673 and registration No. NL 01K 5234. The complainant purchased the said vehicle obtaining loan from HDB Financial Service Ltd. under hypothecation agreement. He obtained loan to the tune of Rs. 21, 50,000=00 from the said financial service. He was under obligation to pay the loan amount by 46 installments i.e. Rs. 59,700=00 equally per month. The complainant used to pay the installment amount regularly and lastly paid on 05.4.2015 though HDFC Bank account. On earlier occasion the complainant was requested to reschedule the loan amount and making payment of the installment. But the complainant was unable to do the same. On 11.3.2015 while the truck was passing through Burdwan by-pass for loading the goods for delivery to the customer on 11.3.2015, on the said date the agent and the muscleman of the Ops were forcefully taken the possession of the vehicle without any notice, demand notice, final notice, not informing the court nor any permission taken from the court or administrator, not following any norms, rules, law as per statute and without settled principle of law the OP-1 in connivance with the Op-2&3 have committed gross irregularity in respect of taking possession of the said vehicle. After taking repossession of the said vehicle on 11.3.2015 the Ops issued an inventory list and the same was delivered to the driver of the said vehicle on the same day. But the said inventory list does not bear any signature of the Ops and the inventory list did not make properly and all the inventory items have not been clearly mentioned in the said list. Being an illegal and fake, the inventory list has no legal and evidentiary value on the part of the Ops. On the said date upon hearing from the driver and going through the inventory list the complainant found that the same is a fake one and sent one e-mail to the Ops through her father-in-law. The Ops was requested to supply the original inventory list. It was mentioned by the complainant that in the said list it was not mentioned that the 12 wheels and tyres were new and the fuel tank of the vehicle was full. On 15.02.2015 the complainant found the said vehicle on the roadside of the Burdwan by-pass in a ruined condition and a new tyre has been removed with a lower category tyre and the fuel tank was empty, the tripal jauk was missing, rod battery was not in the care. On that date the complainant sent the e-mail to the Ops informing the said matter, but they did not take any action. Be it surprised that on 12.3.2015 the Ops sent a pre-sale notice to the complainant and before sending the same the Ops took the installment from the complainant which is evident from the document. Complainant requested the Ops to receive the EMI but they were unable to come before the complainant. Regarding all these purposes the complainant made several correspondences with the Ops in writing and on the last occasion the Senior Manager of the Ops made a phone call to the complainant and assured that they will auction the vehicle, but surprisingly the said vehicle is still in possession of the complainant. The complainant requested the Ops to return new tyre and wheel along with other missing articles, oil and to restructure the loan amount and installment, but the Ops did not consider the claim of the complainant till filing of this complaint, which amounts to deficiency in service, as well, as unfair trade practice of the Ops. Having no other alternative to get relief the complainant being compelled has filed this complaint before this ld. Forum by filing this complaint praying for direction upon the Ops for making payment of Rs. 2,75,000=00 towards loss/removing new tyre, tripal jauk and rod battery, Rs. 1,00,000=00 due to financial loss as she could not ply the said vehicle, compensation to the tune of Rs 50,000=00 towards mental pain, agony and harassment and litigation cost of Rs. 25,000=00.

The petition of complaint has been contested by the OP-1&2 by filing written version contending that it is financial institution carries on business of banking and allied services including providing financial assistance for purchase and acquiring of equipments, vehicles by way of loans financed hire purchase loan and hypothecation. On June 2012 the complainant approached this OP showing her desire of purchasing one Tata LPT vehicle and approached the bank for financial assistance of Rs. 21, 50,000=00. The complainant was ready and willing to pay interest as required for availing the loan facility. The complainant also agreed to abide on the terms of contact. She obtained financial assistance from the Ops upon executing one loan agreement on 22.6.2012. The agreement was signed by the Ops as the owner and the complainant as a borrower. The complainant agreed willfully to resolve all the disputes arising out of the agreement through arbitration under Arbitration and Conciliation Act, 1996 and accordingly parties were agreed to refer their dispute to the ld. Arbitrator. The complainant purchased one vehicle being Tata LPT which was hypothecated in favour of the Ops as security towards repayment of the outstanding dues in terms of the said agreement and the deed of hypothecation cum loan agreement dated 22.6.2012 and by way of first and paramount charge over the said vehicle. In terms of the agreement the complainant was required to pay the principal amount of Rs. 21,50,000=00 along with interest @12.5% per annum in 46 equated monthly installment of Rs. 59,700=00 each commencing on and from 4^th  September, 2012. But the complainant failed and neglected to repay the installments in terms of the said agreement and in view of the default committed by the complainant the agreement was terminated and the Ops became entitled to recover the entire remaining balance which was payable by the complainant in terms of the said agreement. The Ops make several requests and issued reminder to the complainant for making payment of the due amount but the complainant deliberately ignored such requests and reminders of the Ops. He did not make further payment. The ops by issuing a letter dated 4.5.2015 called upon the complainant to pay the entire dues of Rs. 16,73,524=00 within 7 days but the complainant refused to pay the aforesaid sum or any part payment though the complainant was liable to pay and the Ops are entitled to recover the same. The agreement dated 22.6.2012 contains an arbitration clause wherein it is mentioned that all disputes and differences arising out of or in connection with the agreement, shall be amicably resolved by the parties. In the event the parties failed to resolve such disputes amicably, such disputes or differences shall be referred to arbitration in accordance with the Arbitration and Conciliation Act, 1996.  The ops have issues a notice u/S. 21 of the Arbitration and Conciliation Act by referring the disputes before the ld. Arbitrator for full and final adjudication. Since there was continuous default in making payment and ignorance attitude of the complainant with malafide intention, the Ops being compelled issued a loan recall notice dated 04.5.2014 demanding a sum of Rs. 16, 73,524=00 which was to be paid by the complainant within 7 days from the date of receipt of demand notice. It was further informed that in case of failure to repay the aforesaid sum, the Ops shall exercise its right to repossess the vehicle. He was further advised to visit the branch office of the Ops at Burdwan for further assistance. Though the Ops provided opportunities to the complainant to regularize the loan account by making payment of the due amount but all efforts were turn futile. The Ops repossessed the vehicle on 11.3.2015 from Durgapur without any force since the driver of the complainant was aware about the facts that the complainant was in default in making payments, the driver did not resist and voluntarily handed over the vehicle to the Ops’ representative. The representative immediately made an inventory list and asked the driver to sign the inventory paper, however, the driver refused to put his signature. The Ops obtained a valuation of the vehicle from an approved valuer. The Ops also issued a resale notice to the complainant on 12.3.2015 and by this letter she was also given an opportunity for releasing the vehicle by making payment of the entire outstanding amount within a period of 7 days. Inspite of such letter the complainant failed to make payment and for this reason he Ops being compelled proceeded for sale of the vehicle through public auction. The said letter was sent through regd. post with A/D and despite receipt of the letter the complainant did not bother to meet the Ops nor took any steps for making payments. According to the Ops as they have no option, they sold out the vehicle through public auction as the condition of the vehicle was deteriorating day by day. From the sale proceed the Ops got a sum of Rs. 1, 03,011.23. The sale proceed was subsequently adjusted with the outstanding amount and the same was duly informed to the complainant by issuing letter dated 06.4.2015. The complainant had knowledge about the terms of the agreement but deliberately suppressed the fact before this ld. Court. She intentionally has avoided the specific part of the agreement wherein it was mentioned that the dispute will be resolved through Arbitration and Conciliation Act. The attitude of the complainant is not at all praiseworthy and she did not approach before this ld. Forum with clean hands. For this reason this complaint is not at all maintainable before this ld. Forum. Accordingly prayer is made by the Ops for dismissal of the complaint with exemplary cost.

The complainant has filed evidence on affidavit along with several papers and documents in support of his contention and the Ops have also filed evidence on affidavit along with several papers and documents in support of their contention. Both parties have filed written notes of argument.

We have carefully perused the entire records, evidences and written notes of argument filed by the contesting parties and heard arguments as advanced by the ld. Counsel for the parties.

As per definition of ‘consumer’ under Section 2(1)(d) (i) & (ii) of the C. P. Act, 1986.Ii is seen by us that the complainant purchased a truck obtaining financial assistance from the Ops to the tune of Rs. 21,50,000=00 which was engaged for loading and unloading of goods and delivering the same to the customer. Moreover, the complainant appointed a driver to ply the said vehicle. In this respect we are to mention  the landmark judgment of Hon’ble Supreme Court passed in the case of Laxmi Engineering works vs. P. S. G. Industrial  Institute, reported in AIR 1995 SC 1428, it has been held by Their Lordships  in the paragraph no-12 which runs as follows-

12.  “Now coming back to the definition of the expression ‘consumer’ in the Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not includes a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression ‘commercial purpose’. …….. ‘Commercial’ denotes ‘pertaining to commerce’, it means ‘connected with, or engaged in commerce; mercantile, having profit as the main aim’ whereas the word ‘commerce’ means ‘financial transactions especially buying and selling of merchandise, on a large scale. The National Commission appears to have been taking a consistent view that where a person purchases goods ‘with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit’ he will not be a consumer within the meaning of Section 2(d)(i) of the Act. ………………….. If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’. ….. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a ‘commercial purpose’ and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a ‘commercial purpose’, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put so. The several words employed in the explanation, viz., ‘uses them by himself,’ ‘exclusively for the purpose of earning his livelihood’ and ‘by means of self-employment’ make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. ……A purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer………..As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer ………………………”

Having regard to the above-mentioned judgment of the Hon’ble Supreme Court we are of the opinion that the complainant purchased the questioned vehicle for commercial purpose and obtained loan for purchasing the same from the Ops, which was also for commercial purpose. In this respect we are to mention another judgment passed by the Hon’ble NCDRC in the case of M/s. Puran Murti Education Society vs. S. D. O., Sub Division UHBVNL, in the Revision Petition no-3311/2012, the Hon’ble National Commission has held in the paragraph no-5 which runs as follows-

5. Admittedly, therefore, the power connection in question is a non-domestic one. It is taken and utilized for the purposes of running a private Engineering College. As cited above, the revision petitioner has contended that non-domestic does not automatically become ‘commercial’ and that the motive of the petitioner is benevolent, for a social cause, not for making products and selling them in the market. However, no evidence is placed on record to show that the college runs for pure philanthropy. We do not find anything either in the contentions raised on behalf of the petitioner or in the evidence placed on record that the college is being run for a charitable purpose. On the contrary, when directly confronted on this point, Ld. Counsel for the revision petitioner conceded that the college is not providing free of cost education. We, therefore, find no merit in the argument advance on behalf of the Revision Petitioner. 

The fact of the said relied case was that the said society is running an Engineering College with the name and style of P.M. College of Engineering and Polytechnic in the area of Village Kami Teh & District Sonepat. The said society has taken one N.D.S. Electricity Connection in the above said college premises bearing a/c no-MM21-0004-A and they have  been making payment of the consumption bills of the said connection to the respondent-Nigam regularly and without any default and nothing is due of the Nigam towards the Complainant-society.

It is mentioned in the C. P. Act commercial purpose does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his /her livelihood by a means of self-employment. In the instant complaint within the fourcorners of the complaint nowhere it is mentioned that the questioned vehicle was purchased by her for earning his livelihood by means of self-employment. In view of the dictum of the Hon’ble Apex Court as mentioned earlier if it is mentioned in the complaint that the complainant purchased the vehicle for earning his livelihood, inspite of this complaint could not be termed as consumer complaint because admittedly the complainant appointed a driver to ply the said vehicle.

As the Consumer Complaint being No. 101/2015 is not maintainable before this ld. Forum and the complainant has failed to prove herself as a consumer within the purview of definition as enumerated in the C. P. Act, 1986 we are not inclined to discuss the remaining issues as made out in the petition of complaint.

Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is dismissed on contest. However, considering the facts and circumstances of the case there is no order as to costs. The Complainant is at liberty to approach before any appropriate forum/court, if it is not barred otherwise.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

                (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)                                                     

                             Member                                                                   

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                          (Silpi Majumder)

                                                           Member                                                 Member    

                                                     DCDRF, Burdwan                               DCDRF, Burdwan