SRI.K. VIJAYAKUMARAN, PRESIDENT.
Complaint seeking injunction against forcibly seized the complainant’s vehicle granting additional instalments for repayments etc.
The averments in the complaint can be briefly summarized as follows:
The complainant availed finance from the opp.party for purchasing a vehicle. The loan was to be repaid as per the repayment schedule given to the complainant. The vehicle purchased utilizing the loan was registered with KL 07 G 6530. The complainant has remitted four instalments amounting Rs.32720/-. In January 2008 the vehicle has certain repairs . After 2 months thereafter while the vehicle was carrying a load of sand the police seized the vehicle alleging that it has no permit. After 3 months the vehicle was released and by that time the body of the vehicle completely damaged. The complainant is solely depending on the income derived from the vehicle for her livelihood. During the period the vehicle was in workshop the instalments could not be paid. The opp.party on 18.9.2008 demanding additional interest and also threatened that the loan amount must be cleared before the expiry of the period of loan or else, the vehicle will be forcibly seized. The period of loan expired on 10.7.2009. The opp.parties will seized the vehicle with the aid of their Gundas and the complainant got reliable information on 8.7.09. If they succeed it will cause irreparable injury to the complaint. Hence the complaint.
The opp.party filed version contending that the complaint is not maintainable either in law or on facts. The complainant is not a consumer as defined under Sec 2[1] [d] of the Consumer Protection Act. The complainant entered into an agreement with the opp.party for the purchase of vehicle bearing Reg. No. KL 7 G 6530 for commercial purpose. Therefore, the complainant cannot claim the benefit of a Consumer . More over the complainant is neither a consumer nor a person having any competence to initiate these proceedings. The relationship of the complainant and the opp.party is governed by the written contract entered into between the parties. The complainant is only a party in the agreement. There are various terms and conditions in the written contract. Since the relationship is contractual obligation of both parties this Forum has no jurisdiction to entertain this complaint. It has been agreed in the agreement executed that the disputes arising between the parties will be settled in accordance with the provisions of the Arbitration and Conciliation Act 1996. Hence in accordance with section 8 of the Arbitration and Conciliation Act 1996 the subject matter of the complaint is to be referred for Arbitration and the complaint is to be dismissed. The complainant has availed a loan ofRs.1,25,000/- which was agreed to be repaid in 36 monthly instalments. After availing loan no timely payments was made by the complainant which is a serious breach of conditions of the agreement. A sum of Rs.1,05,158/- is due to the opp.party from the complainant. It is admitted that a sum of Rs.11,000/- was received from the complainant out of which Rs.11,000/ has been credited as over due charges. The matter was referred for arbitration and the arbitrary has passed award against the complainant allowing the opp.party to realize Rs.1,05,158/-. There is no averments in the complaint about any deficiency in service on the part of the opp.party and therefore the averments in the complaint do not constitute a complaint under the Consumer Protection Act. The cause of action alleged is imaginary and false. The complaint is frivolous and vexacious. Hence the opp.party prays to dismiss the complaint with compensatory costs.
Points that would arise for consideration are:
1. Whether the complainant is a consumer?
2. Whether the complaint is maintainable?
3. Whether there is deficiency in service on the part of opp.party?
4. Reliefs and costs.
For the complainantPW.1 is examined. Exts. P1 and P2 series were marked
No oral or documentary evidence was adduced for the opp.party
POINTS:
The contention of the opp.parties is that the complaint is not maintainable before this Forum as the complainant is not a consumer within the meaning of Sec.2[1][d] of Consumer Protection Act. It is argued by the learned counsel for the opp.parties that the complainant herself has admitted that she is depending on the income derived from the vehicle for her livelihood which was being driven by engaging a driver. It is not disputed that the vehicle is a commercial vehicle. Since the complainant is not driving the vehicle herself but ply the vehicle engaging a driver, it cannot be said that she is a consumer coming within the explanation to section 2[1][d] of the Consumer Protection Act which protect only a person who is using the vehicle for commercial purpose by way of self employment. In the light of the admission that the complainant is using the vehicle and deriving profit engaging a driver she is not entitled to the benefit of explanation to sec. 2[1] [d] of Consumer Protection Act 1986
It is further argued by the learned counsel for the opp.party that there is absolutely no mention of any deficiency in service on the part of the opp.party in n the complaint and in the absence of any averments regarding deficiency in service, this complaint do not constitute a complaint as provided under the Act and it is not maintainable. There is force in that contention. As argued by the learned counsel for the opp.party there is no pleading regarding deficiency in service on the part of the opp.party. The only prayer is for an injunction restraining the opp.party from seizing the vehicle till disposal of this complaint. On that ground also the complaint is not maintainable
The opp.party has in fact made clear that they have no intention to re possess the vehicle forcibly from the custody of the complainant till the disposal of this complaint. The 2nd prayer is to allow additional instalments for repayment of the loan amount. The loan amount is covered under an agreement and this Forum cannot interfere with terms and conditions of the agreement. So that prayer is also not allowable by this Forum. Above all there is no averments of any deficiency in service. For all that has been discussed above we find that the complaint is not maintainable and that there is no deficiency in service on the part of the opp.parties. Point found accordingly.
In the result the complaint is disposed making it clear that the opp.parties shall not seize the vehicle otherwise than by due process of law. No costs..
Dated this the 13th day of December, 2010.
I n d e x
List of witnesses for the complainant
PW.1. – Sindhu Raj
List of documents for the complainant
P1. – Receipts
P2. – Receipts dt. 18.9.2008
