BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                    C.C.No.24/2012

Dated this the 20^th day of October 2016.

(Date of Institution: 30.07.2012)

S. Mannankatti, son of Subbarayan rep. by his    

Power of Attorney Agent D. Vengadesan, son of

Duraisamy, N.K.C. Complex, Abhisegapakkam Road

Thavalakuppam, Pondicherry – 605 007.

 ….    Complainant

vs

1. The Branch Manager                  

    IndusInd Bank Ltd.,             

    Pondicherry Branch,               

    No.150-107, Chetty Street

   (Near M.G. Road Junction)

    Pondicherry – 1.

2. The Authorized Signatory

    IndusInd Bank Ltd.,

    Corporate Office – Retail

    No.116, G.N. Chetty Road

    T. Nagar, Chennai – 600 017.

3. The Authorised Signatory

    IndusInd Bank Ltd.,

    Registered Office: 2410

    General Thimmayya Road (East Street)

    Pune – 411 001.

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Tvl. M. Shanmugam and S. Velmurugan, Advocates

FOR THE OPPOSITE PARTIES: Tvl. R. Thiroumavalavan and
                                            R. Ramachandiran, Advocates.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 (a) of Consumer Protection Act for ;

1. Directing the Opposite Party to pay a sum of Rs.1,89,175/- for monetary loss
2. Directing the opposite party to pay a sum of Rs.50,000/- for deficiency in service,
3. Directing the opposite parties to pay a sum of Rs.50,000/- for malpractice and mental agony and for cost of this complaint.

2.  The case of the complainant is as follows:

          The Complainant stated that he had availed a commercial vehicle loan dated 24.10.2009 from the first opposite party for buying a Mahindra Bolero Maxi Truck, accordingly, the first opposite party had given a loan of Rs.2,60,000/- to the complainant on 24.10.2009 and the period of loan agreement is from 29.10.2009 t0 15.09.2013 and the monthly due amount is Rs.8,550/- which is modified by the consecutive periods.  The total cost of the vehicle was Rs.3,27,000/-, the complainant initially paid a sum of Rs.67,000/- and the first opposite party charged Rs.98,800/- for financial charges (as interest) and retained Rs.27,000/- for insurance deposit from the complainant.  The first opposite party assured and undertake to pay insurance cover of the vehicle for a period of three years from the date of purchase and the first opposite party totally valued the agreement for Rs.3,85,800/- which include the loan amount also.   The complaint was regular in payment of instalments from the first month of delivery of his vehicle.  From the date of registration, the registration certificate of the complainant's vehicle is under the custody of the first opposite party and the first opposite party directed the complainant that whenever Transport Authority required, to collect the same and return bank to the first opposite party.  Accordingly, for the period April 2010 to March 2011 the complainant received back the Registration Certificate from the first opposite party for payment of road tax by handing over the family ration card and returned the Registration Certificate to the first opposite party and received his Family Ration Card.  While the things being so, when the complainant approached the first opposite party in February 2011 for payment of road tax for the period April 2011 to March 2012, the first opposite parte did not respond and hence, the complainant could not pay the road tax within the time stipulated by the Transport Department.  Due to non-payment of road tax, the fitness certificate also could not be obtained by the complainant from the concerned authority which was due on 29.10.2011.  In these circumstances, the complainant made representation on 5.11.2011 to the opposite parties, in response to the same, the first opposite party called the complainant and obtained some signatures and the first opposite party applied for a duplicate Registration Certificate to the Transport Department and then only, the complainant came to know that the original Registration Certificate was lost by the first opposite party.  The complainant spent Rs.5,900/-  for obtaining Duplicate Registration Certificate including penal tax and penal charges for Fitness Certificate.  The complainant further stated that though the first opposite party received three years insurance amount, however paid only the first year insurance premium and the remaining two years insurance premium to a tune of Rs.21,275/- was paid by the complainant.  Due to non-payment of road tax and non-obtaining of fitness certificate in time, the complainant could not ply the vehicle from April 2011 to 24.11.2012 and therefore, he suffered monetary loss to a tune of Rs.1,55,000/- which is his main source of income since, he is only the bread winner of the family.  However, the complainant paid partial amount of loan to the first opposite party, even then the first opposite party did not return back the Registration Certificate.  Further stated that the due to stationary of vehicle, the complainant spent a sum of Rs.10,166/- for repairing the vehicle.   The complainant sent a legal notice to the opposite parties, the same were received by them and sent vexatious and evasive reply.  Hence, this complaint. 

3. The reply version filed by the first opposite party and adopted by second and third opposite parties briefly discloses the following:

The complaint is not maintainable as per law and facts and is liable to be dismissed as the complaint is not a “Consumer” as defined by section 2(1) (d) of the Consumer Protection Act.  The relationship between complainant and the Opposite parties is debtor and creditor and not like consumer.   Further, the complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favour of the complainant.  It is stated by the opposite parties that the  complainant had approached the first opposite party for loan to purchase a Mahendra Bolero Maxi Truck for his commercial purpose, the 1^st opposite party had explained all the terms and conditions of the loan which was accepted by the complainant and executed a loan agreement under loan agreement No: YPAA03752 dated 29.10.2009 with one Mr. M. Velu who stood as co-borrower.  As per the loan agreement the 1^st opposite party have advanced a sum of
Rs. 2,60,000/- as loan towards the new vehicle.  The loan amount is repayable in 47 monthly installments along with applicable interest.  Further as admitted by him, he had already availed a commercial loan with 1^st opposite party another commercial vehicle under loan agreement No:YPAA003312 dated 01.12.2008 hence the complaint is not maintainable before this Hon’ble forum that the vehicle was registered with the concerned Regional Transport office for registration in the name of the complainant with opposite party’s endorsement in the registration certificate.  After the registration of the vehicle, the registration certificate would always be sent to the registered owner alone, in this present case also the same procedure was followed by the registration authorities.  Further as per the terms of the loan agreements the complainant has to produce the copy of the registration certificate for the file purpose to the opposite party.  The original registration certificate always with the complainant, the vehicle is plying to various destinations and the original will be carried along the vehicle hence it is always with complainant.  Further stated that the complainant is always having overdue amount hence to cover-up his inabilities to make the installments he had started to make the issue of original registration certificate as if though it was with the opposite party.  The accounts became a NPA account in the opposite parties bank.   The insurance amount was not collected at the first instance itself the insurance amount is collected along with installment every month.  When the insurance policy is due the opposite party used to cover the vehicle.  In the present case the borrower had informed the opposite party that the vehicle policy was already renewed by him before the due dates, to avoid the premium amount collected along with installments were credited in the statement of account of complainant for the year 2010 and 2011 and the amount of Rs. 9,000/- for each year is available in the receipt side of the statement of account.  The opposite party also stated that the agreement between the complainant and opposite party is having arbitration clause where by both are agreed to resolve the entire dispute in Arbitration hence as per the terms of the agreement the opposite party had initiated Arbitration proceedings before sole Arbitrator Shree. Rajeni Ramdas in ACP No 173 of 2012 much before the present complaint and the complainant appeared though his counsel and contested the proceedings filed his counter.  After hearing in detail, the Arbitrator passed the award as prayed by the opposite party.  Hence present proceedings before the form become infructuous and prayed for dismissal of the complaint. 

4.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C17 were marked.  On the side of the opposite parties, no oral evidence was let in and no documents were marked. 

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any deficiency in service?
3. To what relief the complainant is entitled for?

6.       Point No.1:

          It is the allegation of the complainant that he had availed a commercial vehicle loan from the first opposite party on 24.10.2009 vide Ex.C2 to a tune of Rs.3,85,800/- and the Equated Monthly Instalment was Rs.8,550/- commencing from 29.10.2009 till 15.06.2013.  On perusal of Ex.C3, it is observed by this Forum that the complainant purchased "BOLERO MAXXI TRUCK" from Manoranjan Ganguli and Sons on 30.10.2009.    It is alleged by the complainant that since the first opposite did not give the Registration Certificate of the above said vehicle to the complainant for payment of road tax and for getting fitness certificate from the Transport Authority, due to which the complainant could not ply the vehicle and sustained monetary loss and mental agony.   The complainant sent notice through Advocate which was received by the opposite parties, but even then the first opposite party had not provided the Registration Certificate to the complainant. 

          7.  The opposite parties alleged that the vehicle in question was financed by them to the complainant for commercial purpose, therefore, the purpose of the vehicle which was purchased is for commercial purpose, hence, the complainant does not come under the category of "Consumer" and therefore,  the complaint is liable to be dismissed. 

          8.  This Forum carefully perused the averments and the material available on record.  The complainant in his complaint has stated that he has availed a commercial vehicle loan from the first opposite party and also filed Exs.C1, repayment schedule, Ex.C2 loan sanction order of the opposite parties to the complainant, Ex.C3 Delivery challan to prove the vehicle was purchased and hypothecated to first opposite party, Ex.C4 photocopy of Registration Certificate of vehicle PY 01 AY 7205 hypothecated to first opposite party, Exs.C4 to C9 Receipts for part payments made by complainant to the opposite parties.  From the above documents, this Forum observes that this dispute between the parties is related to the loan availed for a commercial purpose.  The complainant himself stated in his complaint that he has availed a commercial vehicle loan  and the Opposite parties also taken the same plea that the complainant's transaction is a commercial in nature.   Further,  Section 2 (1) (d) (ii) of the Consumer Protection Act, if a service has been availed for any commercial purpose by a person,  such person will not be, deemed as a Consumer.   According to the own version of the complainant, the vehicle has been purchased for commercial purpose and also the services availed by the complainant from the opposite parties are for commercial purpose. The complainant has not pleaded that the vehicle bought and used and the services availed from the opposite parties were exclusively for the purpose of earning livelihood by means of self-employment. 

          9.  It is pertinent to mentioned here  that the word consumer has been defined under Section 2 (1) (d) (ii) of the Consumer Protection Act as :-

          Consumer means any person who – (ii)     [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partially paid and partially promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purposes;].

          For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

10.  Further, this Forum also relies the decision on the order passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in 2015 (2) CPR 620 (NC) [M/S SRIKISHAN & COMPANY THROUGH PROPRIETOR, SUSHIL KUMAR AGARWAL vs UNION BANK OF INDIA, THROUGH ITS BRANCH MANAGER, KORBA BRANCH] [First Appeal No. 556 of 2014) wherein, it was held that "Commercial transactions cannot become subject matter of consumer complaint."

And also relies the decision reported in 2015 (1) CPR 434 (NC) [STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA vs M/S RELIGARE SECURITIES LTD] wherein, it was held that

        "Petitioner has nowhere pleaded in his complaint that he is doing the share business for self-employment.  Nor, he has been pleaded that the services provided by the respondents were being availed of exclusively for the purpose of earning his livelihood by means of self-employment.  It is well settled, that the disputes between the parties relating to commercial  purposes, are excluded under the Act."

          In the above judgment, the Hon'ble National Commission has relied the judgment passed in Vijay Kumar vs Indusind Bank [11(2012) CPJ 181 (NC)];  [2012 (3) CPR 242 (NC)] wherein, it was held that

        "Since petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the "over draft facility" from the respondent, as such, he would not be a consumer as per Section 2 (1) (d) (ii) of the Act.  Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit.  Thus, this activity is purely commercial one and is not covered under the Act".

           11.  In the instant case, the complainant has simply averred that from the period of April 2011 to 24.11.2012, he was unable to operate his vehicle which is the main source of income for him and also he is only bread winner of his whole family.  But, he did not averred in the complainant that he purchased the vehicle for earning his livelihood by means of self-employment.  Moreover, he has pleaded in the complaint that "he availed a commercial vehicle loan".  It is essential for the complainant to plead that the vehicle has been purchased for his personal use and for his livelihood by means of self-employment and the  same have to be proved by letting in proper evidence.   In this case, the complainant was examined as CW1 who deposed that "…..I have purchased and gave a vehicle to my son-in-law, Venkatesan as Stridhana property."  Nothing more than that elicited by the complainant in his evidence.  Therefore, the failure to state in the complaint and to let in evidence by the complainant that the vehicle was purchased for his personal  use and for his livelihood by means of self-employment, this Forum observes that the vehicle is admittedly purchased for commercial purpose, the only motive is to earn profit  therefore, complainant is not a Consumer.  Hence, the complaint is liable to be dismissed.

          12.  Point No.2 and 3:

 In view of the discussion and decision held in Point No.1 that the Complainant is not a Consumer, these points are need not to be answered. 

13.  In the result, this complaint is dismissed.   No costs.

Dated this the 20^th  day of  October 2016.

                                                                                                                                  (A.ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

                                                  MEMBER

COMPLAINANTS' WITNESS:   

CW1           11.01.2016           Mannankatti,                 

OPPOSITE PARTY'S WITNESS:   NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:  NIL

                                                                                                                                 (A.ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

                                                    MEMBER