SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the OP.
2. The case of the complainant, in short, is that he had purchased one Mahindra 585 D-1 Tractor with Trolley bearing Registration No.OD-01R-9343 bearing Engine No.NGJ6CA0411 and Chassis No.MBNADANABGHJ00051 to maintain his livelihood by availing loan of Rs.5,00,000/- on 20.2.2017 from the OP. For the purpose, there was an agreement between the parties, but the copy of the same has not been handed over to him. As per the agreement, the complainant would repay the loan amount within 46 monthly instalments and the complainant would deposit the margin money of Rs.2,21,000/-.Thereafter, the complainant used to pay the instalment amount regularly and obtained receipts from the office of the OP. But, all on a sudden, he received a notice from the OP on 11.2.2019 wherein a sum of Rs.75,808/- was shown to have been outstanding against him and he became shocked as because he had paid Rs.16,130/- towards instalment on 24.1.2019 and the OP has not informed about the same on the same day. Thus, the complainant served a legal notice on the OP on 22.2.2019. Further, the OP has supplied the insurance certificate of CHOLAMS General Insurance Co. Ltd. vide certificate No.3380/01125579/000/00 covering the period from 22.2.2017 to 21.2.2018 and another insurance certificate bearing No.3380/01125579/000/01 covering the period from 22.2.2018 to 21.2.2019. After expiry of the above insurance period, the complainant requested the OP to provide insurance certificate, but the OP was not respond. For the above reason, the tractor in question has been standing idle for which the complainant sustained a loss of 1,50,000/- within the aforesaid 3 months. It is stated by the complainant that he had paid Rs.3,30,000/- in 23 monthly instalments till 22.3.2019, but the OP threatened him over phone to seize the vehicle for which the complainant sustained mental agony. The above nature and conduct of the OP clearly makes out a case of deficiency in service towards the complainant.
The cause of action for the case arose on 11.2.2019, when the OP issued over-due notice and on 22.2.2019, when the complainant sent legal notice on the OP. Hence, this case.
3. In the present case, though the OP received the notice, but he neither appeared nor filed his written version, hence he has been set ex parte.
4. On perusal of the pleading and the documents relied upon by the complainant, admittedly it is found that the complainant had availed loan of Rs.5,00,000/- from OP and purchased one tractor and trolley on 22.2.2017 and got it registered before the competent authority vide Registration No.OD-01R-9343, as reflected in the Registration Certificate Particulars.It is also seen from the insurance certificates that the vehicle in question was insured once from 22.2.2017 to 21.2.2018 and again from 22.2.2018 to 21.2.2019 and thereafter no insurance certificate in respect of the vehicle is provided by the OP, as claimed by the complainant.
In this connection, from the Statement of Account submitted on behalf of the complainant, it is seen that the complainant had paid monthly instalments from 23.2.2017 to 25.1.2019 and for the month of February, 2019 no instalment was paid and then two instalments paid in the month of March, 2019. From the letter dated 11.2.2019 issued by the OP in favour of the complainant shows that the OP has demanded Rs.75,808/- stating that since the complainant has not paid the substantial payment towards the overdue on his account till date, his account has an overdue with the aforesaid amount including additional finance interest as per the terms of agreement and called upon to clear all the pending dues within three days, failing which he will enforce the terms of the contract including the seizure of the vehicle. From the above, it is crystal clear that the OP has issued demand notice in the month of February, 2019 when the complainant failed to pay the instalment for the said month. Thus, it cannot be said that the demand notice issued by the OP is a threat one, rather, it has been issued by the OP to inform him about the outstanding dues. In this regard, it also cannot be said that issuance of demand notice dated 11.2.2019 by the OP is treated as a cause of action which gave rise to file the present case by the complainant. When the complainant failed to pay the instalments and OP issued demand notice, it cannot be said that the OP is deficient in service in not providing up-to-date insurance certificate for the rest period. That apart, the complainant has admitted in his complaint that he has defaulted in payment of the instalments.
Further, Hon’ble National CDR Commission, New Delhi have been pleased to observe in a case reported in 2015(4) CPR-148 (N.C)(Sunny & Others -vs.- Rajesh Tripathy) that financing and advancement of loan does not fall within purview of facility in connection with banking, transport, etc. as mentioned in Section 2(o) of C.P Act, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P Act and the petitioner is thus, not a consumer. Moreover, the O.P has the right to recover his dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, who is the owner of the product business unit and the person, who takes the loan retain the product unit only as a Bailee/ trustee. Therefore, recovery of the outstanding dues from the loanee has always been upheld to be a legal right of the financer. Therefore, the complainant is bound to repay the outstanding loan amount to the OP. In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant merits no consideration and liable to be dismissed.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on ex- parte against the OP. In the facts and circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 10th day of September, 2024 under my signature & seal of the Commission.
