Andhra Pradesh

Visakhapatnam-II

CC/184/2011

K. Nanajee - Complainant(s)

Versus

Larsen and Tourbo Finance Limited - Opp.Party(s)

V.V. Ramana Raju

30 May 2015

ORDER

Reg. of the Complaint:19-05-2011

                                                                                                                                      Date of Order:30-05-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

SATURDAY, THE 30^TH DAY OF MAY, 2015

CONSUMER CASE NO.184/2011

 

BETWEEN:

K.Nanajee s/o Thirupathi Rao,

Hindu, aged 50 years, owner of Trailor,

Lorry AP 3 U 9549, r/o Nanubala Street,

Srikakulam.

…Complainant

AND:

1. The Regional Manager,

Larsen & Tourbo, Finance Ltd.,

201, 2^nd Floor, Dega Towers,

Somajiguda, Hyderabad.

2. The Branch Manager,

Larsen & Tourbro Finance Ltd.,

48-8-16, Dwarakanagar,

•  

…Opposite Parties

This case coming on 27-05-2015 for final hearing before us in the presence of    SRI V.V.R.RAJU, SRI T.JEEVAN AND SRI C.V.PRASAD, Advocate for the Complainant, and of SRI KANDALA SRINIVASA RAO AND SRI KANDALA SARVESWARA SASTRY, Advocate for the 1^ST & 2^nd Opposite Parties and having stood over till this date for consideration, this Forum made the following.

 

ORDER

 (As per the Honourable President on behalf of the Bench)                                                                              

1. The Complainant filed the present complaint against the Opposite Parties, directing them to release the Trailor Lorry bearing No.AP30U/9549 and to pay a compensation for loss of income @ Rs.2,000/- per day from the date of Seizure i.e., 11-05-2011 till date and a compensation of Rs.7,000/- for seizing the transporting goods, Rs.1,00,000/- towards compensation  for causing mentgal agony and with costs.
2. The case of the complainant in brief is that the sales executive of OP2 motivated him to purchase Ashok Leyland 4018 power with Trailor  who assured that he can provide loan of hypothecation basis to the said vehicle, accordingly OP2 paid the loan amount of Rs.15,00,000/- to the Ashok Leyland  Company on 13-06-2007 who deliver the said vehicle and thereupon  he got the vehicle on road by investing Rs.6,00,000/- and registered the said vehicle before RT Authorities and loan of Rs.15,00,000/- given by OP2  is to be discharged by the complainant with interst in 60 monthly installments by giving grace period of 2 months. Thus, each installment comes to Rs.36,569/- commencing from 13-08-2007 for a period of 58 months and he used to pay monthly installments promptly except in few months due to lack of business and vehicle repairs. He has to pay Rs.16,09,036/- by 11-05-2011 but he paid Rs.14,73,682/- till 12-04-2011 from August, 2007 to OP2. As per the instructions of OP2, OP1 illegally seized when noticed his trailor in Vijayawada with goods on 11-05-2011 whilie it was transporting pipes from Hyderabad to Ramachandrapuram. That on perusal of the vehicle, he immediately approached  personally the OP2 and offered Rs.50,000/- in excess and refused to receive and demanded him to pay Rs.2,66,129/-  without showing account copy and further taking steps to auction the vehile at lower rate to cause wrongfull loss to him, the said seizure made by OP2 is illegal and arbitrary as a result of which, he possessed huge loss of business, the vehicle was seizged while carrying pipes, Hence, this complaint.
3. The case of the OPs, denying the material averments of the complainant is that OP2 has given a loan amount of Rs.15,00,000/- to Ashok Leyland Company on 13-06-2007 and the vehicle was delivered to the complainant and that the loan is to be discharged in 60 monthly installments @ 8.28 interest. The complainant was never regular in payment of EMIs as agreed with them. The account statement clearly speaks about the amounts paid by him from time to time. That as per the agreement  there are clear recitals about the action to be initiated in the event of deault customer. The agreement also speaks about the grievance from either of the parties shall be referred to file the same. Therefore, the complaint itself is not maintainable. The complainant does not come under the purview of Section 2(d) of the Consumer Protection Act, the transaction itself is a commercial transaction and the complainant has taken the vehicle for profit motive, therefore, this complaint is not maintainable and liable to dismissed.
4. To prove the case on behalf of the complainant, he filed his sworn affidavit and got marked Exhibits A1 to A8. On the otherhand, on behalf of the OPs, filed their affidavits and got marked Exhibits B1 and B2.
5. Exhibit A1 is the  R.C.Book, Exhibit A2 is the Letter of authorization for the Lorry No.AP30u9549 dated 10-05-2011 Exhibit A3 is the Statement showing the payments made by me to the OP No.2, Exhibit A4 is the Payment receipts 42 in number, Exhibit A5 is the Payment schedule, Exhibit A6 is the Statement of Account issued by Ops dated 15-11-2010, Exhibit A7 is the Calendar and Judmeent  in C.C.1889/SS/2009 of 12 MMC at Bandra in Mumbai, Exhibit A8 is the Calendar and Judmeent  in C.C.923/2012  on the file of XIX Metropolitan Magistrate at Hyderabad.
6. Exhibit B1 is the Loan cum Hypothecation Agreement and Exhibit B2 is the Statement of Account.
7. Both parties filed their respective written arguments.
8. Heard oral arguments from both sides.
9. Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

10. The 1^st contention of the OP is that the complaint filed by the complainant is not maintainable. The record much less the averments of the complaint clearly goes to show that the complaiant availed the loan for the vehicle for a commercial transaction  and vehicle was taken for a profit motive. If that be so, the complainant does not come under the purview of the Section 2(d) of the Consumer Protection Act. Section 2 (1) (d) (i) of the Act is very clear that “Consumer” means “any person who, - Buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of differed payment who buys such goods for a consideration paid or promised or partly paid or partly promised or under any system of differed payment wen such use is made with the approval of such person but it is ot between a person who obtains such goods for resale or for any commercial purpose”.  The definition of Consumer under the Act has clearly excluded such person  who uses  the goods purchased by them or services availed by them for any commercial purposes”. The complainant has conceded that he had purchased the vehicle which is run commercially.  He categorically noted at page 2 para 3, he clearly stated that except in few months, due to lack of businss and vehicle repairs etc., which goes to show that he purchased the vehicle for commercial purpose and used for the same. Since the very purpose of the vehicle is commercial, in the present case, we are of the considered view that the complaint filed by the complainant is not maintainable.
11. The next contention of the OP is that the complaint is not maintainable in view of the Specific Clause of Arbitrator in the Loan Agreement which is  marked by the OPs at the time of filing of their Evidence Affidavit B1 and B2.  The conditions of the Loan Agreement marked as Exhibit B1 it has been agreed by the Complainant as the Agreement has been counter signed by the complainant. The agreement also speaks about any grievance from either parties shall be referred to Arbitrator for proper relief, in spite of it, in this case, the complainant did not chose to invoke the clause and approach this Forum, as such, the present case is not maintainable in view of the Specif Caluse in the agreement that any dispute shall be referred to before the Arbitrator only.
12. In the light of our discussion, refered supra, we are of the considered view that the complaint filed by the complainant deserves to dismissed.
13. In the result, this complaint is dismissed. No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the  30^th day of May, 2015.                                   

 

   Sd/-                                                Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT       

 

 

 

 

APPENDIX OF EVIDENCE

 

  For the Complainant:-

Exhibits	Date	Description	Remarks
A1		R.C.Book,	Original
A2	10-05-2011	Letter of authorization for the Lorry No.AP30U9549	Original
A3		Statement	Photocopy
A4		Payment receipts	Originals
A5		Payment Schedule	Photocopy
A6	15-11-2010	Statement of Account issued by Ops
A7		Certified copy of Judgement in C.C.1889/SS/2009 of 12 Metropolitan Magistrate Court at Bandra in Mumbai,	Certified copy
A8		Calendar and Judmeent  in C.C.923/2012  on the file of XIX Metropolitan Magistrate at Hyderabad.	Certified copy

 

For the Opposite Parties:-  

Exhibits	Date	Description	Remarks
B1		Loan cum Hypothecation Agreement	Photocopies
B2		Statement of Account	Photocpies

   Sd/-                                                Sd/-                                          Sd/-

LADY MEMBER                            MALE MEMBER                        PRESIDENT