West Bengal

Paschim Midnapore

CC/11/2013

Sk. ALAUDDIN - Complainant(s)

Versus

M.D., Tata Motors Finance Ltd - Opp.Party(s)

25 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.11/2013                                              Date of disposal: 25/02/2014                                

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER :  Mrs. Debi Sengupts.

                                                      MEMBER :  xxxxxxxxxxxx

   

    For the Complainant/Petitioner/Plaintiff : Mr. P.K. Neogi. Advocate.

    For the Defendant/O.P.S.                           : Mr. S. K. Maity, Advocate.

          

               Sk. ALAUDDIN, S/o late Sk. Kumar Ali, Vill-Bhabanipur, P.O.-Debhog, P.S.-

               Bhabanipur, Dist Purba Medinipur.

                Present Address- Vill-Satkui, P.O.-Matkatpur, P.S.-Kharagpur(L), Dist-Paschim

                Medinipur………………Complainant.

                                                              Vs.

1. M.D., Tata Motors Finance Ltd., Regd., Office, Nanavati, Mahalaya, 3^rd Floor, Homi Modi Station, Mumbai-400001
2. Branch Manager, Tata Motors Finance Ltd., 886 & 896 Railway Goodshed, P.O.-Kharagpur & P.S. Kharagpur(T), Dist-Paschim Medinipur………………Ops.

 

                  Case of the complainant Sk Alauddin, in short, is that he purchased a Truck bearing its registration No.WB/29/9689 by virtue of loan agreement No.500180062 with Op-No.2 Tata Motor Finance Ltd. for his livelihood.  It is alleged by the complainant that after long period, the possession of the vehicle was forcibly taken away by the Op on 26/02/2011 without due notice to the complainant intimating the actual due for repayment of the loan nor any notice for auction sell of the vehicle was served upon the complainant.  Prior to that, the vehicle was also detained by the Op on 06/05/2010 and an amount of Rs.1,00,000/- (One lakh) only was taken from the complainant without any receipt thereof.  Thereafter, auction on 11/09/2010 the vehicle was detained and the same was released on 24/09/2010 by Bhabanipur P.S. On 24/09/2010 the Op through his agent took Rs.50,000/- (Fifty thousand) only without any receipt.  On 04/09/09 the vehicle was repossess at

Contd…………….P/2

 

-( 2 )-

Nimpura, Kharagpur and after 10 days the vehicle was released.  The complainant started paying E.M.I total amount into Rs.10,90,000/- (ten lakhs ninety thousand) only against due amount of Rs.10,92,000/- (Ten lakhs ninety two thousand) only.  Mere for Rs.2,000/- (Two thousand) only the Op refused to settle the claim.  Repossession of the vehicle on 26/02/2011 taken by the Op without due notice is barred in law and the complainant is entitled to get relief interms of the prayer made in the petition of complaint.                                                                                                                                        

                  Op-Tata Motors Finance Ltd. contested the case by filing written statement denying the allegation of the complainant and claiming for dismissal of this case as the Forum has no jurisdiction to entertain the same.  The dispute is purely civil in nature which involves with complicated question of law and fact.  Moreover, there is no consumer relationship save and except creditor and borrower between the Op and the complainant.  Thus, the case should be referred to arbitration.

                    Upon the case of the both parties the following issues are framed.                                                                        

Issues:

1. Whether the case is maintainable in its present form?
2. Whether the complainant has any cause of action for filing this complaint?
3. Whether the Forum has jurisdiction to decide the case?
4. If the complainant is entitled to get relief in terms of his prayers?

 

Decisions with reasons:

Issue Nos.1 to 4:

                 All the issues are taken up together for discussion.  Ld. Advocate for the complainant made his argument that the complainant made his argument that the complainant is a self-employed person who works for is livelihood with the truck purchased under loan agreement with the Op.  According to the provision of Consumer Protection Act the complainant is a consumer as the vehicle purchased was used by him exclusively for the purpose of earning for his livelihood by means of self employment.  So, here is no any adverse case so far as it releats to the point of availing benefit of the said act.  The complainant repaid almost the entire amount towards the loan but even so the Op detained the vehicle which they should not do.

                 Ld. Advocate for the Op. on the other hand made his reply that the Consumer Protection act does not give any room for any person who is not a consumer in its strict sense.  Admittedly, the complainant purchased the vehicle for commercial purpose and it has already declared by him on 25/10/2007 at the time of loan agreement.  Relevant document is shown and thereby the complainant is estoped from such declaration.  In this connection, Ld. Advocate has mentioned that there is no evidence to show that the complainant encouraged himself in the employment for

Contd…………….P/3

-( 3 )-

earning for his livelihood.  In such fact and circumstances Ld. Advocate further referred to the deed of agreement and arbitration proceeding whereby it can be seen that the Op took action with due process of law.  So, the Forum has not jurisdiction to deal with the matter and as such the case should be dismissed.

                In reply Ld. Advocate for the complainant is found to above submitted that admittedly the complainant purchased the vehicle under loan cum hypothetic cum guarantee agreement dated 16/08/2007 for purchasing the vehicle for commercial purpose.  Definitely, the purchase of the vehicle was for commercial purpose but it does not mean that he is debarred from getting any benefit under the Consumer Protection Act since he works for earning his livelihood. Here the complainant maintains the transport business himself for earning. So the application of the definition of consumer extends and includes the use of the vehicle exclusively for the purpose of earning his livelihood. So, according to the Ld. Advocate the complainant here of is entitled to get relief as a bona fide and lawful consumer from this Forum.

               We have carefully considered the case of both parties as a whole, it appears that this is a case on loan cum hypothecation agreement held between the complainant and the Op-No.2 upon some agreed terms and conditions stipulated there in which discloses that in case of any dispute arising out of the said loan agreement the matter shall be settled by arbitration and the final decision of arbitrator in the form of award shall be final and binding on them.  Eventually, the dispute has already been settled in the way of arbitration proceeding under Arbitration and Conciliation Act vide the case No. LOT 146/M074 of 2010.  If that be so, there is lawful scope open for the complainant to move before the appropriate Forum under the direction of Arbitration and Conciliation Act, 1996 as applicable in this behalf.

                 In view of the discussion made hereinabove it is held and decided that all the issues are held in favour of the Op.  As a result, the case should fail.    

                 Hence

                           It is ordered

                                              that the case be and the same is dismissed on contest without cost.

                Copy of the order be supplied to the parties free of cost.

                

 Dic. & Corrected by me

              

         President                                              Member                                  President

                                                                                                                 District Forum

                                                                                                      Paschim Medinipur.