The case record is posted today for payment of cost by complainant & hearing. Neither the complainant nor his Advocate is present and no step is taken on his behalf. Advocate for OP No.1 is present & files hazira. O.P No.2 is absent, no step filed. On repeated calls, none respond on behalf of the complainant. Hence, hearing of the case could not be taken up.

                                         As it appears from the case record, the complainant was absent since 14.03.2018 to till today except 30.09.2019. Due to the long absence of the complainant, the hearing of this case impaired. It is seen that the OP No.1 made his appearance and filed written version & though the notice against O.P No.2 was sufficient earlier, O.P No.2 is set ex-parte. Therefore, this Commission is constrained to pass order considering the merit of the case.

                                         On perusal of the complaint petition, it is seen that the complainant had purchased one tipper, being financed by O.P No.1 for the purpose of earning his livelihood by means of self-employment. There was agreement between the complainant and O.P No.1 for repayment of the loan amount. As the vehicle has many manufacturing defects as mentioned in the complaint petition, so the complainant was unable to run the vehicle and losing his income and could not able to pay the instalments regularly. Thus, the O.P No.1 was threatening to seize the vehicle.    

                                         On the other hand, O.P No.1 has stated that the complainant does not fall within the definition of consumer and the relationship between the parties is that of borrower and lender. Thus, the case of the complainant is not maintainable. That apart, the vehicle in question is a commercial one. The vehicle purchased by the complainant is not used by himself, by employing himself for earning his livelihood, rather, used the vehicle for earning livelihood in a commercial business. Therefore, the complaint is not maintainable.

                                         Upon careful perusal of the pleadings of both the parties and the documents submitted on their behalf, this Commission is of the considered opinion that the vehicle as purchased by the complainant is a tipper and the complainant has purchased it for the purpose of business. In 2015(4) CPR-148 (N.C) in the case of Sunny & Others -vs.- Rajesh Tripathy, Hon’ble National C.D.R Commission, New Delhi have been pleased to observe that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in  III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, O.P No.1 has the right to recover his dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financier who is the owner of the vehicle and the person, who takes the loan retain the vehicle only as a Bailee/ trustee. Therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier. Besides, the plea of the complainant that his tipper became defective, for which he lost his income and could not repay the instalments, cannot be a cause for taking action against the O.Ps.  

                                         In the above facts and circumstances of the case and taking into consideration of the rulings of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.

                                         Accordingly, the case of the Complainant is dismissed on merit.