A.   Rajesh, President.

The case of the complainant is as follows:

Complainant is the registered owner of the service bus bearing Registration No. KL-5N 1149.  The complainant availed a loan of Rs. 4 lakhs from the opposite parties after executing a hire purchase agreement dated 19-5-05. The complainant was to repay an amount of Rs. 4,96,008 in 36 equal instalments @ Rs. 13,778/- each.  Accordingly the complainant promptly repaid the amount as per the re-payment schedule.  Thereafter the complainant requested the 2^nd opposite party to issue the hire purchase termination letter.  At that juncture the 1^st opposite party demanded Rs. 1,01,384/- from the complainant.  The complainant is not liable to pay any further amount to the opposite parties.  Aggrieved by the above conduct of the opposite parties, the complainant is before us seeking direction against the 2^nd opposite party to issue letter stating termination of hire purchase agreement dated 19-5-2005 and to close the loan account of the complainant.

     2. Defense of the 1^st opposite party.

     The 1^st opposite party has purchased all the rights and liabilities of the business done by the 2^nd opposite party by deed of assignment dated 10-6-08.  The complainant has to pay an amount of Rs. 4,96,008/- in 36 equal monthly instalments.  His monthly instalments were belated.  A total amount of Rs. 69,731.40 as on 11-12-2008 is due to the 1^st opposite party. The 1^st opposite party is ready to issue termination letter if the complainant pays an amount of Rs. 69,751/- as on 11-12-2008.  1^st opposite party request to dismiss the complaint.

     3. Defense of the 2^nd opposite party

     The complaint is not maintainable as there is arbitration clause in the loan agreement.  There is no contractual liability between the complainant and the 2^nd opposite party.  So the 2^nd opposite party need not issue  no objection certificate to the complainant.  The 2^nd opposite party requests to dismiss the complaint.

     4. Complainant was examined as PW1 and Exts. A1 to A36 were marked on his side.  Witnesses for the 1^st opposite party were examined as DWs1 &2 and Exts. B1 and B2 were marked on their side. Neither oral nor documentary evidence was adduced by the opposite party.  Heard the counsel for the parties.

     5. The points that emanated for consideration.

     i. Whether the complaint is to be referred for arbitration?

     ii. Whether the complainant is maintainable in this Forum?

     iii. Whether the complainant is entitled to get termination letter 

         from the opposite parties?

     iv Whether the complainant is liable to pay any further amount     

        in  the loan account?

6. Point No. i. At the threshold the 1^st opposite party filed I.A. 221/08 to refer this complaint for arbitration.  We dismissed the I.A. wide order dated 29-12-08.  The said order has not been challenged by the 1^st opposite party.  Therefore discussion on this point does not hold water.

     7. Point No. ii During evidence the 1^st opposite party raised a contention that the complainant is not a consumer under the provisions of C.P. Act.  According to the 1^st opposite party, the complainant had availed the loan for plying a service bus which is a commercial activity.  The learned counsel relied on the various decisions rendered by higher Judiciary.

i. M/s. Abhinav Publishing India Pvt. Ltd. Vs. M/s. Graphics &  

    Printers (National Commission Consumer Protection Reporter,

    V-VI 1995 (2).

ii. M/s. Agfa Gevaert India Ltd. Vs. M/s. Jitpal X-ray Pvt. Ltd. & Ors 

   (NCConsumer Protection Reporter V-VI 1994 (2))

iii. P. Krishna Reddy & Anr. Vs. Yagnesh Upadhaya & Anr;, II 2007  

    CPJ 91 Karnataka SCDRC.

iv.NCL Industries Ltd. Vs. Kirloskar Oil Engine Ltd. (NC) Consumer 

    Protection Reporter IX 1995 (3)

     v. M/s. Monarch Photocomp & Printers Vs. M/s. Super

         Engineering Corporation (NC, Consumer Protection Reporter

        IX-1992 (2)

    vi. Jag Mohan Chhabra & Anr Vs. DLF Universal Ltd. IV (2007) 

       CPJ 199 (NC).

          On the contrary the learned counsel for the complainant argued that the complainant is the owner-cum-driver of the vehicle and he is plying the vehicle for earning his livelihood.  The counsel relied on the decision of the Apex Court in Laxmi Engineering Works Vs. PSG Industrial Institute 1995 (2) CPJ 1 (SC).  Admittedly the complainant had availed himself of the hire purchase loan from the opposite parties to purchase the vehicle.  Seemingly, the complainant had been engaging a driver  and 2 conductors to ply the stage carriage bus for earning his livelihood which thwarts and nullify the contention of the 1^st opposite party invariably and evidently The Hon’ble Appex Court in the above referred case  held in Para 12 as follows:

          “The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose.  The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression “Consumer”.  If the commercial use is by the purchaser himself for the purpose of  earning his livelihood by means of self employment, such purchaser of goods is yet a “consumer”. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer.  In other words. If the buyer of goods uses them himself, i.e. by self employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act.  The explanation reduces the question, what is a “commercial purpose”, to a question of act to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to.  The several words employed in the explanation, viz. “Uses them by himself”, exclusively for the purpose of earning his “livelihood” and by means of “self employment “ make the intention of parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.  A few more illustration would serve to emphasis what we say. A person who purchases an auto rickshaw to ply it himself on hire for earning his livelihood would be a consumer.   Similarly, a purchaser of a truck who purchases it for ply it as a public carrier by himself would be a consumer. 

In view of the above authority we are not to rely on the decisions cited by the 1^st opposite party at all higher authorities having found so.  Therefore we are  of the firm view that the complainant is a consumer and this compliant is maintainable in this Forum.

          8. Point Nos. iii&iv.  At the instance of the complainant wide order in I.A. 155/08 we directed the 2^nd opposite party to issue no objection certificate to the complainant so as to enable him to seek stage carriage permit from the concerned motor vehicle authorities subject to deposit of Rs. 50,000/- in this Forum by the complainant. In consequences of the order the complainant had deposited Rs. 50,000/- in this Forum on 28-7-08.  In spite of that the 2^nd opposite party did not issue the same.

          9. Admittedly, the complainant had availed himself of Rs. 4,00,000/- from the 2^nd opposite party and he was to repay an amount of Rs. 4.96,008/- in 36 instalments @ 13,778/- per month contractually which he had executed bonafide..  Exts. A4 to A34 go to show that the complainant had remitted the following amount to the opposite parties regularly without default which is not controverted by the opposite party.

10. The direct  payment of Rs. 13,778/- has not been disputed by the opposite parties. It is evident from the above that the complainant had remitted a total sum of Rs. 4,96,718/- with the opposite parties in lieu of the contract with even an additional amount. Thereafter on 23-5-2008 by Ext. A35 the 1^st opposite party demanded a further amount of Rs. 1,01,384.69 from the complainant, the split up data is an follows:

1.    Prepaid amount of overdue instalments :         48,359.37

2.    Finance charges of overdue instalments          :            1,042.63

3.    DPC                                                           :         51,982.69

                                                                       --------------------

                                                                                 1,01,384.69

                                                                                  ============

Later they disowned Ext. A35 and stated in their version that they are ready to issue the termination letter if the complainant pays Rs. 69,731/- the outstanding amount as on 11-12-08.  It is  to be noted that the opposite parties are demanding the contradictory amounts basing on the hire purchase agreement which is averred to have been entered into between the complainant and the opposite parties for which there is documentary evidence either before the contract between the parties or evidence before this Forum.  The claim of the opposite party can’t be upheld hence.  The above conduct of the  opposite parties blatantly amounts to  deficiency in service on their part.  However which the complainant has not come up with for goodwill of his own. Resultantly the complainant is entitled to get the termination letter of authorities of hire purchase agreement dated

19-5-2005.

          11.  Accordingly, we allow the complaint and direct as follows:

          i.   The opposite parties shall jointly and severally  issue a certificate to the complainant stating that the complainant had discharged his liability in full.

ii.The opposite parties shall jointly and severally issue termination letter of hire purchase agreement  dated 19-5-05 as provided under the Motor Vehicle Act for the purpose of canceling the hire purchase endorsement in the certificate of Registration.

iii. The Registry will disburse Rs. 50,000/- to the complainant which he has deposited as per  order in I.A.  155/08  dated 20-7-08.

The above said order shall be complied with within a period of one month from the date of receipt of copy of the order.

Pronounced in the open Forum on this the 16^th day of August 2010.