SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the Ops claiming compensation.
2. The case of the complainant, in short, is that OP No.1 is financial service provider whereas OP No.2 is its subordinate official. OP No.3 is the manufacturer company of the auto rickshaw whereas OP No.4 is the authorized dealer of OP No.3. However, the complainant applied for sanction of a loan for purchase of one auto rickshaw before the OP No.1 & 2, who sanctioned Rs.1,61,000/- in his favour for the purpose and as per the terms and conditions of the agreement, the complainant is to repay the same within 36 monthly instalments. Thereafter, the complainant deposited margin money of Rs.28,800/- in favour of OP No.1 & 2 and accordingly purchased the Auto rickshaw and the said Auto was registered before the Registering Authority bearing No.OD-01B-3481. As per the terms and conditions of the agreement executed between the complainant and OP No.1 & 2-Bank, the complainant had paid a sum of Rs.78,055/- to the OP No.1 & 2 from out of the total financed amount, but due to illness of the driver, the Auto could not ply for which the complainant failed to pay the outstanding loan amount. It is further stated that the Auto in question has got manufacturing defects and the complainant had approached the OP No.4 to exchange the defective Auto, but in vain. It is specifically stated that all on a sudden, the OP No.2 without any prior intimation had taken away the auto in question from the possession of the complainant for which he sustained irreparable loss. From the above acts of the Ops, a case of deficiency in service is clearly made out. In the meantime, the OP No.1 & 2 are trying to sell the auto illegally by way of auction and in case they fulfilled their evil desire, the complainant will certainly suffered mental agony and financial loss. Hence, this case.
3. OP No.1 & 2 appeared and filed their joint version stating, inter alia, that the relationship between the complainant and the OP-Bank is borrower and financer, as such, the complainant is not a consumer and the case is not maintainable. Further, the complainant had taken loan from their Bank with an agreement on that terms and condition that he should repay the total loan amount within 36 monthly instalments, but as on date, the complainant has failed to repay the total loan amount and became defaulter. The complainant had taken loan with a view to purchase one auto rickshaw and it was hypothecated in favour of the Ops-Bank. Further, it is stated that Ops-Bank had issued notices for the purpose. Still then, the complainant did not repay the outstanding loan amount. Thus, the Ops-Bank was constrained to take possession of the vehicle under intimation to the complainant. The complainant was intentionally defaulted in paying the outstanding dues of the Ops-Bank and with an oblique motive and he has filed this case with a view to harass the Ops-Bank. Hence, it is prayed to dismiss the case with cost.
4. OP No.3 & 4 appeared and filed their joint version wherein they specifically stated that the complainant had purchased the auto in question from them, but due to mismanagement and proper maintenance of the vehicle, it suffers many fold problems and the present Ops have rectified from time to time with free cost of service and also replaced the broken and damaged parts of the vehicle within the warranty period. Further, at the time of free servicing, the complainant has not complained about the manufacturing defect in the vehicle, but after long lapse of time, it is claimed that the auto has got manifold manufacturing problem, which is not at all accepted. Thus, the OP No.3 & 4 have not at all committed any deficiency in service, as alleged by the complainant.
5. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has cause of action to file this case?
(iii) Whether this consumer case is maintainable?
(iv) Whether there is any deficiency in service on the part of the OPs?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
6. On perusal of the pleadings of the parties so also the documents relied upon, it is found that admittedly, the complainant had taken the loan from OP No.1 & 2-Bank and purchased one auto rickshaw. The Challan No.11731 dated 19.6.2013 indicates purchase of one Atul Passenger Auto by the complainant. No document filed on behalf of the complainant to show that the auto in question has got manufacturing defect from any expert of that field. Further, the complainant has also not filed any document to show that he had ever complained about the manufacturing defect in his auto before the OP No.3 or OP No.4 although he had availed 4th free service in respect of his Auto. Thus, it cannot be said that OP No.3 & 4 are deficient in rendering their service towards the complainant. Besides the above, it is an admitted fact that the complainant has not repaid the outstanding loan amount to the Ops-Bank. On the other hand, it is seen that Ops-Bank is the financier, from whom the complainant had taken loan for purchase of the auto in question. Further, it is seen that the complainant has violated the terms and conditions of the agreement by not repaying the outstanding dues of the Ops-Bank. In the present case, the complainant is silent about what kind of service the OP-Bank has not been rendered. That apart, the complainant had availed the loan from the OP No.1 & 2-Bank and hence, he was the borrower.
7. In the above facts and circumstances of the case, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C) (Sunny & Others -vs.- Rajesh Tripathy) 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, Ops-Bank have the right to recover their 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 financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, recovery of the outstanding dues from the loanee has always been upheld to be a legal right of the financer. Therefore, the complainant is bound to repay the outstanding loan amount to the Ops-Bank and waiving out the loan amount, as claimed by the complainant, is not at all sustainable in the eye of law. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant merits no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the OPs. In the facts and circumstances of the case, no order as to costs.
Pronounced in the open court of this Commission, this the 11th day of November, 2024 under signature & seal of the Commission.
