BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA. Complaint No.35 of 2008. Instituted On: 08.04.2008. Date of Service: 19.06.2008. Decided On: 10.10.2008. Shivani Kansal (aged 30 years) wife of Rohit Kansal son of Amrit Lal, resident of Street No.3, Lajpat Nagar, Kotkapura, Tehsil & Distt. Faridkot. Complainant. Versus 1. ICICI Bank Limited, through its Chairman/ Managing Director having its Registered Office at Landmark, Race Curse Circle, Vadodara-390007 Gujarat. 2. Branch Manager, ICICI Bank Limited, G.T.Road, Moga. 3. Harkaran Singh, Collection Manager, ICICI Bank Limited, G.T.Road, Moga. Opposite Parties. Complaint under section 12 of The Consumer Protection Act, 1986. Quorum: Sh.J.S.Chawla, President. Sh.Jit Singh Mallah, Member. Smt.Bhupinder Kaur, Member. Present: Sh.Rajnish Goyal, Advocate counsel for the complainant. Sh.Ajay Gulati, Advocate counsel for the OPs no.1 & 3 OP-2 exparte. (J.S.CHAWLA, PRESIDENT) Smt.Shivani Kansal complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as Act) against ICICI Bank Limited, Vadodara through its Chairman/ Managing Director and others (herein-after referred to as ICICI Bank) - opposite parties directing them to pay Rs.2 lacs as compensation for loss suffered, causing mental tension and harassment and also to return ten blank cheques got signed by the complainant beside costs of litigation. 2. Briefly stated, Shivani Kansal complainant for her livelihood had purchased one tractor trailer vehicle manufactured by Tata Motors having Model no.LPS-4018, TC E-II, Chassis no.447207KTZ30075, Engine no.60K62513527 from Libra Automobiles Hoshiarpur vide invoice no.815 dated 25.10.2006 for a sum of Rs.1240221/-. That the complainant then got prepared the trailor by spending a sum of Rs.7 lacs approximately. That the complainant got insured the said vehicle with ICICI Lombard General Insurance Company Limited vide policy no.3003/1115854/00/000 on 19.10.2006. That to raise the financial assistance for the purchase of said vehicle, the complainant took advance of Rs.1640221/- from the OPs-ICICI Bank. That at the time of sanctioning of the loan, the OPs-ICICI Bank got his signatures on various printed forms, papers, blank papers and stamp papers without disclosing their contents to her. Lateron, the OPs-ICICI Bank got entered agreements in their record. That the OPs-ICICI Bank also got ten blank cheques signed from the complainant and retained the same on the pretext that these cheques were required for the repayment of loan amount. But no copy of said agreement or schedule of payment of the installments was provided to the complainant. That the complainant had been making the regular payment of installments of the loan amount to the OPs-ICICI Bank and last such payment was made on 3.9.2007. That on 2.10.2007 when the complainant loaded 510 paddy bags from Kotkapura for delivery at Murthal in Haryana and said vehicle was on its way, then the OP-3 alongwith some desperate persons armed with deadly weapons forcibly seized/ confiscated the vehicle alongwith goods loaded and other accessories after giving merciless beatings to driver Nirmal Singh and co-driver Binder Raj. That the complainant alongwith some other persons approached the OPs-ICICI Bank to release the vehicle, but to no effect. She also offered to pay the installments due and to settle the account, but the OPs-ICICI Bank did not disclose the reason for seizure/ confiscation of vehicle. Lateron with great difficulty and persuasion, the complainant got the goods unloaded from the vehicle, but the vehicle was not handed over to the complainant and the OPs-ICICI Bank illegally retained the same. That on 9.2.2008 the OPs-ICICI Bank sent her a letter alleging it to be post sale notice claiming an overdue outstanding amount of Rs.623955/-. In the said letter, it has been alleged that her vehicle has been disposed off for a meager amount of Rs.9.50 lacs. That the act and conduct of the OPs-ICICI Bank is altogether illegal, unjust, arbitrary, malafide and against the public policy. The OPs-ICICI Bank was not entitled to forcibly seize the vehicle of the complainant through anti-social elements and after giving severe beatings to her employees. That the OPs-ICICI Bank have acted in illegal and unjust manner in disposing off the vehicle of the complainant at a throw away price without the consent notice and intimation to her. That the OPs-ICICI Bank and its employees have acted fraudulently by dealing with the vehicle unnecessarily, hastily and in a disguised manner. That the act and conduct of the OPs-ICICI Bank amounts to criminal breach of trust, cheating, criminal misappropriation of property and various other offences. That the complainant had suffered loss in business by the seizure and disposal of the vehicle. Though the actual loss caused to the complainant is huge and continuing one, yet she claims a lump-sum amount of Rs.2 lacs by way of compensation on account of unfair trade practice and mental agony, torture and harassment. That the OPs-ICICI Bank is also bound to return the ten blank cheques got signed by them from the complainant at the time of advancement of the loan. That the aforesaid act and conduct of the OPs-ICICI Bank has caused great inconvenience, harassment and mental agony to her for which she has claimed Rs.2 lacs as compensation beside costs of the litigation. Hence the present complaint. 3. Notice of the complaint was given to the OPs-ICICI Bank. OP2-Branch Manager, ICICI Bank served, but did not appear, thus he was proceeded against exparte vide order dated 9.5.2008 passed by this Forum. OPs 1 and 3 appeared through Sh.Ajay Gulati Advocate and filed written statement contesting the same. They took up preliminary objections that the complaint is not maintainable before this Forum; that the complainant has purchased the vehicle in question for commercial purpose and thus the transaction between the parties was not covered under the Act; that the complainant is doing the business of transportation alongwith her family members and having fleet of nine transport vehicle and out of such nine vehicles, three vehicles have been purchased in the name of complainant and all such vehicles have been purchased by way of obtaining loan from various financial institution. Moreover, the complainant was not holding driver license and thus, she employed many persons as drivers, cleaners as well as manager for the aforesaid vehicles; that this Forum has got no jurisdiction to try and entertain the present complaint as complainant has leveled false allegations of fraud, criminal breach of trust, cheating criminal misappropriation of property and various other offences against the OPs-ICICI Bank and the same can not be decided on the basis of the affidavit under the provisions of Act; that the matter involves complicated questions of law and facts which involved taking of elaborate oral evidence and as such not contemplate the determination of such complicated issues and therefore, the parties may be referred to civil court and that the complainant herself has violated the terms and conditions of agreement executed by her in favour of OPs-ICICI Bank at the time of obtaining loan. On merits, it was averred that the complainant did not purchase the vehicle in question for her livelihood as the complainant was having fleet of nine transport vehicles alongwith her family members and the said family of complainant is known as Kansal Group at Kotkapura, Distt.Faridkot. That at the time of obtaining the loan the complainant had submitted various documents showing that she is running a transport business. It was further averred that the complainant had voluntarily with her free consent executed various documents in favour of OPs-ICICI Bank as security. The complainant is not an illiterate rustic woman. She is an educated lady and none can prevail upon to put her signatures on any blank paper/ document. The vehicle in question was purchased by the complainant by taking the loan from OPs-ICICI Bank on hire purchase basis. The contract of hire purchase confers no title on the hirer, but it is mere option to purchase the vehicle on fulfillment of certain conditions. The said contract of hire purchase also provide for the agreement to purchase the vehicle hired by way of deferred payment subject to the conditions that title to the vehicle etc. shall not be passed until all the installments have been paid. The complainant executed vehicle loan-cum-hypothecation agreement in favour of OPs-ICICI Bank agreeing thereby to all the terms and conditions enumerated therein regarding mode of payment of loan amount. It was further agreed by the complainant that in the event of default or on failure to perform her obligation under the agreement, the OPs-ICICI Bank shall be entitled to forthwith take physical possession of the vehicle in question. That the complainant has failed to adhere to the financial discipline i.e. the repayment schedule of the OPs-ICICI Bank and the account of the complainant became irregular. It was further averred that the re-possession of the vehicle in question was taken by the OPs-ICICI Bank through its authorized re-possession agency due to the default made by the complainant. Before taking re-possession of the vehicle, requisite information to the concerned police station was given. Moreover, the representative of the complainant himself has surrendered the vehicle in question to the said re-possession agency and put his signatures upon the letter of surrender. Subsequently, the complainant was served with the registered pre-sale notice requesting her for the settlement of account in full and to take delivery of the vehicle after due payment of the loan, but she did not bother. Finally, the OPs-ICICI Bank sold the said vehicle through vehicle dealer by way of on line auction bid on internet for an amount of Rs.9.50 lacs and the account of complainant was decreased to the said amount. After adjusting the said amount, sum of Rs.623955/- us still due from the complainant alongwith interest. All other allegations contained in the complaint were specifically denied being wrong and incorrect. Hence it was prayed that the complaint filed by the complainant has no merit and it deserves dismissal. 4. In order to prove her case, the complainant tendered in evidence her affidavit Ex.A1, copy of bill Ex.A2, copy of receipt Ex.A3, copy of form 22 Ex.A4, copy of policy Ex.A5, copy of premium Ex.A6, copy of RC Ex.A7, copy of national permit Ex.A8, copy of permit Ex.A9, copy of receipt Ex.A10, copy of customer copy Ex.A11, copy of bill Ex.A12, copies of receipts Ex.A13 to Ex.A27, copy of post sale notice Ex.A28 and closed her evidence. 5. To rebut the evidence of the complainant, the OPs no.1 and 3-ICICI Bank tendered in evidence affidavit of Sh.Harkaran Singh Collection Manager Ex.R1, copy of statement of account Ex.R2, copy of pre-sale notice Ex.R3, copy of postal receipt Ex.R4, copy of pre-sale notice Ex.R5, copy of detail Ex.R6, copy of family background Ex.R7, copy of detail Ex.R8, copies of viability Ex.R9 and Ex.R10, copy of recommendation Ex.R11 and closed their evidence. 6. We have perused the written arguments filed by Sh.Rajnish Goyal ld. counsel for the complainant and Sh.Ajay Gulati ld. counsel for the OPs no.1 and 3-ICICI Bank and have very carefully perused the evidence on the file. 7. Sh.Rajnish Goyal ld.counsel for the complainant has mainly argued that the OPs-ICICI Bank has committed deficiency in service and they be directed to pay Rs.2 lacs as compensation for loss suffered, causing mental tension and harassment and also to return ten blank cheques got signed from the complainant beside costs of litigation. This contention of the ld.counsel for the complainant has no merit. 8. On the other hand, Sh.Ajay Gulati, ld.counsel for the OPs-ICICI Bank has mainly argued that the complainant has failed to prove that she is a consumer under the Act. This contention of the ld.counsel for the OPs-ICICI Bank has full force. Sale Detail Ex.R6 produced by ld.counsel for the OPs-ICICI shows that the family of the complainant having fleet of nine transport vehicles, out of which, three vehicles are in the name of Shivani Kansal complainant and the same were registered in her name i.e. Tractor Trailer bearing registration no.RJ13GA-0929; Multi Axle bearing registration no.RK13G-8229 and third Tractor Trailer bearing registration no.PB04K-9729. Copy of the Deal Background (Ex.R7) produced by the OPs-ICICI further shows that Kansal Group is one of the leading groups in Faridkot area. It is also mentioned that the group was having 9 vehicles in the names of their family members. It is also mentioned that the group is running its vehicles in Rajasthan & Gujarat route and extra source of income from spare parts & lubricant shop and they are the main leader in the area. 9. It is also in evidence that the complainant had employed drivers, cleaners and manager to run their transport business. So it can not be said that the complainant had purchased the vehicle in question for her livelihood or self employment. This fact further corroborates because it is mentioned in the complaint as well as in affidavit Ex.A1 filed by the complainant that at the relevant time the vehicle in question was being driven by Nirmal Singh driver and co-driver Binder Raj from whose possession the vehicle in question had been confiscated. The affidavit of Sh.Harkaran Singh, Collection Manager Ex.R1 also proves the contention of the ld.counsel for the OPs-ICICI that the complainant had purchased the vehicle in question for commercial purpose. In view of the aforesaid facts and circumstances we, therefore, hold that the complainant had purchased the vehicle in question for commercial purpose and she is not a consumer as defined under section 2(1)(d) of the Act. Hence, the present complaint filed by Shivani Kansal complainant is not maintainable under the Act. Our aforesaid views stand fortified from the decision of the Honble Chandigarh State Commission in M/s.Rehal Carrier Vs. Ashok Leyland Ltd. Reported in 1999(1) CLT 327 in which it was held that the complainant is a transport firm and has hired drivers for the commercial use of vehicles in question, therefore, the complaint is not covered under Consumer Protection Act. 10. Similar, view was held in Interfreight Services Private Limited Vs.Usha International and others reported in 1995(2) CLT 112 (NC); Cheema Engineering Services Vs.Rajan Singh reported in 1997 SCC 131; Mahendra Kumar Choursia Vs. DCM Toyota and others in 2004(1) CLT page 470; M/s.Shree Jagannath Constructions Ldv. Vs. Kotak Mahindra Premium Ltd. In 2001(1) CLT page 390 and Kumar Madan Mohan Sharma Vs. Phooltas Auto Pvt.Ltd. in 2992(3) CLT page 381.On the other hand, the rulings 2006(3) CCC 622 (SC) and III(2007) CPJ 395 cited by ld.counsel for the complainant do not apply to the facts of the present case and are quite distinguishable. 11. Thus, relying upon the supra authorities, we, hold that the complainant is not a consumer within the definition of section 2(1)(d) of the Act and the present complaint filed by her is not maintainable. 12. For arguments sake, if it is presumed that the complaint filed by the complainant is maintainable, even then the complainant has failed to prove that the OPs-ICICI Bank has committed deficiency in service or that she is entitled to compensation of Rs.2 lacs for causing mental tension, agony and harassment. Admittedly, it is the case of the complainant that she had purchased vehicle in question after availing loan of Rs. Rs.1640221/- from the OPs-ICICI bank. At the time of purchase of the said vehicle, she hypothecated the said vehicle alongwith other security documents undertaking to repay the loan as per the loan schedule. The OPs-ICICI Bank has produced on record the statement of account dated 8.2.2008 Ex.R2 showing that the complainant had committed default in making payment of installments. Thus it shows that the complainant herself had violated the terms and conditions of the loan cum hypothecation agreement and did not repay the installments as per schedule for the reasons best known to her. 13. Moreover, as per loan-cum hypothecation agreement, the OPs-ICICI Bank was entitled to take possession of the vehicle in question in case of breach of terms and condition. Before taking possession of the vehicle in question, the representative of the complainant himself had surrendered the vehicle in question in the possession of agency of the OPs-ICICI Bank and duly put their signatures on the letter of surrender. Thereafter, the OPs-ICICI Bank served the complainant with a registered pre-sale notice requesting her for the settlement of her account in full and to take delivery of vehicle after making payment of loan amount, but she did not respond to it. Finally, the OPs-ICICI was left with no option, but to auction the vehicle in question through vehicle dealer by way of on line auction bid on internet and the same fetched Rs.9.50 lacs. After deducting Rs.9.50 lacs from her loan account, the OPs-ICICI Bank was entitled to recover Rs.623955/- from the complainant. Thus, it shows that the vehicle in question was not forcibly taken into possession by the OPs-ICICI Bank or their authorized agency, but the same was surrendered by the employees of the complainant voluntarily. Thus, there was no deficiency in service on the part of the OPs-ICICI Bank while taking the possession of the vehicle in question. 14. Furthermore, neither the complainant nor her representative nor driver/ co-driver had reported the matter to the police regarding the forcible taking into possession the vehicle in question by the aforesaid agency of the OPs-ICICI Bank. Had the agency of the OPs-ICICI Bank used the cohersive method or given beating to the driver or co-driver of the vehicle at the time of forcibly taking into possession of the vehicle in question, then no explanation is forth coming as to why the complainant did not report the matter to the police. Thus the conduct of the complainant shows that the representatives of the complainant themselves had surrendered the vehicle with the OPs-ICICI Bank and the OPs-ICICI Bank had not taken forcible possession of the same. Thereafter, the OPs-ICICI Bank had adopted the legal procedure by giving registered pre sale notice to the complainant, but inspite of the same she did not respond. So the OPs-ICICI bank was left with no option, but only to auction the vehicle in question as per the rules and regulation. Hence, there is no deficiency in service on the part of the OPs-ICICI Bank. 15. Moreover, the allegations in the complaint show that the complainant had leveled the allegations of criminal breach of trust, cheating, criminal misappropriation of property and commission of various other criminal offences against the OPs-ICICI Bank. She also alleged that the employees of the OPs-ICICI Bank acted fraudulently by dealing with the vehicle unnecessarily, hastily and in a disguised manner. Therefore, the aforesaid allegations leveled by the complainant in complaint as well as in her duly sworn affidavit Ex.A1 shows that she had alleged commission of criminal offences punishable under Indian Penal Code against the OPs-ICICI Bank. So, the aforesaid allegations also bar the jurisdiction of this Forum to entertain and try this complaint. 16. To prove the aforesaid contention, the OPs-ICICI Bank has tendered in evidence affidavit of Sh.Harkaran Singh Collection Manager Ex.R1, copy of statement of account Ex.R2, copy of pre-sale notice Ex.R3, copy of postal receipt Ex.R4, copy of pre-sale notice Ex.R5, copy of detail Ex.R6, copy of family background Ex.R7, copy of detail Ex.R8, copies of viability Ex.R9 and Ex.R10, copy of recommendation Ex.R11. On the other hand no reliance could be placed on the affidavit of complainant Ex.A1 and other documents Ex.A2 to Ex.A28. 17. The ld. counsel for the parties did not urge or argue any other point before us. 18. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. The parties are left to bear their own costs. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room. (Bhupinder Kaur) (Jit Singh Mallah) (J.S.Chawla) Member Member President Announced in Open Forum. Dated:10.10.2008. hrg*
