29.01.2015.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 07.01.2012 passed by the Ld. District Forum, North 24 Pgs. in Complaint Case No. 230/2011 partly allowing the same against the O.P. No. 2 on contest with cost of Rs.2,000/- and dismissing against the O.P. No. 1 on contest and ex parte against O.P. No. 3 without any cost directing the O.P. No. 2 to return the vehicle which was seized, in default he should pay the Complainant compensation @ Rs.300/- per day from 18.01.2012 within 30 days from the date of the order, failing which a penalty @ Rs.200/- per day will be charged for disobeying Forum’s order for each day’s delay which should be deposited with the Consumer Welfare Fund, further directing the O.P. No. 2 to treat the loan account of the Complainant as closed finally and to return the nine blank cheques which were received from the Complainant.

Being aggrieved by the order the O.P. No. 2 i.e. the Financier, Tata Motors Finance Limited has preferred the instant appeal on the ground that the vehicle was used for the commercial purpose and the Complainant cannot be considered as a consumer and further the Ld. District Forum should have seen that repossession of the vehicle was done in a peaceful manner and as such, not amounting to any illegal repossession.

The case of the Complainant before the Ld. District Forum, in brief, is that he decided to purchase the vehicle from the O.P. No. 1 – French Motor Car Co. Ltd. with the financial assistance of the O.P. No. 2 – Tata Motors Finance Ltd. and accordingly entered into a hire purchase agreement with the O.P. No. 2 under certain terms and conditions.  The vehicle was delivered to the Complainant and after receiving the vehicle the Complainant found that no necessary documents like temporary registration, insurance papers etc. were supplied to him by the financier.  He further found that the vehicle was not of that type which he wanted to purchase.  The Complainant stated that he opted for purchasing one E – IV type vehicle but the vehicle which was delivered to him was of E-III type.  The Complainant further stated that on 01.09.2011 he approached RTO, Barasat for the purpose of necessary registration of the said vehicle but he was told that a huge sum of money was required for the same due to unnecessary delay.  However, on repeated requests to the O.P. No. 2 for handing over the right type of vehicle the Complainant found no fruitful results.  Hence, he filed the instant petition of complaint praying for direction upon the O.P. Nos. 1 & 2 to replace the vehicle and deliver the actual standard of vehicle which he opted for, direction upon the O.P. No. 1 to get back the said delivered vehicle and return the initial deposited amount of Rs.36,000/-, to pay a sum of Rs.50,000/-, a direction upon the O.P. No. 3 to stop payment of nine blank cheques till settlement of the dispute and to pay adequate cost of litigation.

The O.P. No. 2 contested the case and filed Written Version denying and disputing all the material allegations levelled against it stating, inter alia, that the Complainant entered into a hire purchase agreement with the O.P. No. 2 for financial assistance for purchasing a vehicle of his choice.  However, the required amount was disbursed to the manufacturer and the vehicle was delivered to the Complainant.  However, the Complainant defaulted in making payment of the scheduled EMI and after reminder on several occasions the O.P. No. 2 repossessed the said vehicle.  In the Written Version the O.P. No. 2 specifically stated that since the entire loan has not been repaid by the Complainant – borrower, he was the mere user of the vehicle and there was no irregularity in repossession of the said vehicle.

It appears from the record that the O.P. No. 1 also contested the case and filed W. V. denying all the allegations levelled against it. 

The O.P. No. 3 did not enter appearance.

In course of hearing of the argument the Ld. Advocate for the Appellant has submitted that the Complainant is not a consumer under the O.P. since the vehicle has been purchased for commercial purpose.  The Ld. Advocate also mentioned that the Complainant never stated that he wanted to ply the vehicle for earning his livelihood.  The Ld. Advocate for the Appellant has further submitted being financier the Appellant has every right to seize the vehicle as the Complainant defaulted in making payment of the scheduled EMI.

The Ld. Advocate for the Respondent No. 2 i.e. the manufacturer of the vehicle in dispute has submitted that the case was dismissed against the manufacturer.

None appeared on behalf of the Respondent – Complainant.

Having heard submissions and on perusal of the materials on record it appears that the Complainant entered into a hire purchase agreement with the Appellant for financial assistance to purchase a vehicle manufactured by the Respondent No. 2.  The Complainant – Respondent in his petition of complaint before the Ld. District Forum put much stress on the point that the vehicle supplied to him was of improper description.  He stated that he opted for a vehicle E – IV type but the manufacturer delivered the vehicle of E-III type.  The Complainant – Respondent in his petition of complaint reiterated that the vehicle delivered to him be replaced with a right description.  But in support of this contention of the Complainant, we do not find any cogent material on record.

In the impugned judgment Ld. District Forum observed that the repossession of the vehicle done by the O.P. No. 2 was in improper manner since muscle power had been used for the same.  But within the four corners of the petition of complaint, the Complainant did not allege any forcible repossession of the vehicle.  Moreover, there is no material of record to show that the vehicle was repossessed forcibly.  However, it appears from the materials on record that the Complainant defaulted in making payment and the vehicle delivered to him was repossessed by the financier.  In fact, as the loan had not been repaid by the Complainant/borrower he is to be considered as mere user of the vehicle whereas the financier is considered to be the actual owner of the vehicle.  Therefore, there is no irregularity in repossession of the vehicle in question.

In the result, the appeal succeeds.

Hence, ORDERED, that the appeal is allowed without cost.  The impugned order is set aside.  The petition of complaint is dismissed.