Shri Ram Babu Jha
Nonglyer,
Upper Shillong, Shillong-793005
East Khasi Hills,Meghalaya
…..Appellant/opposite party
-Vs-
1. The Managing Director
Indusind Bank Ltd
2401, Gen. Thimmayya Road
(Cantt.) Pune-411001
2. The Branch Manager
Indusind bank Ltd.
C/o Kamber Medical Centre
Keating Road, Shillong-793001
..…Respondents
Date of hearing : 17.08.2013
Date of judgment: 14.09.2013
JUDGMENT & ORDER
Per Mr. Justice P K Musahary, President.
1. This appeal is filed under Section 17 of the Consumer Protection Act,1986 directed against the order dated 25.08.2008 rendered by the learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong (D.F in short). In Consumer Case No. 52/07 discussing the compliant of the present Appellant.
2. The facts of this case in short, relevant for the purpose of disposal of this case, are that, the Appellant bought and possessed EICHER truck on hire-purchase system on execution of an agreement with the Respondent/Opposite Party on certain terms and conditions for securing the loan amount of Rs.7,00,000/- and the Appellant paid margin money of Rs.1,10,000/- and agreed to pay Rs.21,000/- per month towards repayment of the loan amount with interest. The truck so bought on hire-purchase system was registered in the Appellant’s name and used for commercial purpose after obtaining a National Permit. The truck in question was seized by the Opposite Party No.3 sometime in September 2006 due to non-payment of some installments. It was released on payment of some amount in October 2007. The truck was again seized by the Opposite party No.3 on 16.06.07 for default in payment of installments for the months of April and May, 2007. The appellant offered Rs 1,20,000/- for release of the truck but the Opposite party No.3 refused to accept it and release the truck and demanded an additional amount of Rs.20,000/- as pulling charge. The truck was then sold to a third person on 27.06.07 at a lower price without giving opportunity to clear the outstanding installment causing mental agony, harassment, loss of income in business. The Appellant claims payment of Rs.8,14,000/- in total on the following counts:-
(i) Current market value of the truck Rs.5,82,000.00
( as per the insured value)
(ii) Loss of net business income @ Rs.1,20,000.00
Rs.30, 000/- w.e.f. June 2007
– Sept 2007
(iii) Compensation on account Rs.1,00,000.00
of mental Agony and
harassment
(iv)Amount incurred on Rs.5,000.00
correspondences
& personal visits
(v) Lawyer’s fee, typing cost, Xerox etc Rs.7,000.00
Rs.8,14,000.00
3. The Opposite Parties contested the claim by filing a joint written statement. They raised the usual question of maintainability, locus standi, limitation, estoppel, waiver acquiescence etc. The Opposite parties had clearly pleaded that the vehicle in question was repossessed only on 10.07.07 when the Appellent/ Complainant failed to pay six consecutive monthly installments.
4. We have heard Mr. M Sharma, learned counsel for the Appellant. None appeared for the Respondent without any steps.
5. The learned D.F framed the following issues below:-
(i) Whether the Complainant is a Consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986?
(ii) Whether there is negligence or deficiency in service by the Opposite Party?
(iii) Whether the Complainant is entitled to any compensation?
(iv) Any relief entitled to by the Complainant?
6. While discussing issue No. (i), the learned DF came to a finding that
“It is on record that the Complainant had taken loan from the Opposite party for purchased of a truck (EICHER). The Complainant had registered the vehicle as ML 05 E 2216 and a National Permit was obtained from the Secretary, State Transport Authority, Meghalaya. The truck was used for transportation of goods to Dimapur, Imphal and Aizawl as per the statement of the Complainant on records. There is no doubt that the truck was used for commercial purposes. However, the issue before this Forum is to determine as to whether the said truck was used by the Complainant to earn his livelihood by means of self employment.
The Complainant in the complaint petition stated that ’he is engaged in transportation business and have earned good reputation’. It is therefore evident that the Complainant is already in the business before he purchased the truck ML 05 E 2216, financed by the Opposite party. He had purchased the truck ML 05 E 2216 with the loan from the Opposite party to expand his business and not to earn his livelihood by means of self employment. Further, the Complainant had engaged other persons, that is, a driver and a handyman for running the said truck. There is no evidence placed before the Forum to proof that the truck was used by the Complainant to earn his livelihood by means of self employment. The only argument placed before the Forum by the Complainant ‘that he is a consumer’ was that he had taken loan from the Opposite party. However the loan from the Opposite Party is for purchasing a truck which had been used by the Complainant for commercial purpose and the argument of the Complainant will not sustain. The Forum is therefore of the opinion that the Complainant has failed to proof that he was using the truck ML 05 E 2216 to earn his livelihood by means of self employment and he cannot therefore be treated as a consumer as defined in Section 2(d) of the Consumer Protection Act, 1986. The issue is decided in the negative and against the Complainant”.
7. Mr. M. Sharma, learned counsel for the Appellant streneuously argued that the Appellant/Complainant is a consumer within the meaning of Section 2(1) (d) of the Consumer protection Act, 1986 inasmuch as he has been using the vehicle in question for self employment and not for any commercial purposes. According to him, there are numerous cases in support of his contention. He has cited the following cases:-
1) AIR 2012 SC 509 – Citicorp. Maruti Finance Ltd. Vrs. Vijaya Laxmi
2) (2007) 3 CPR 191 (WC) – Citicorp. Maruti Finance Ltd. Vrs. Vijaya Laxmi
3) (2007) 2 SCC 711 – ICICI Bank Ltd. Vrs. Prakash Kaur & Others
4) AIR 2003 (Punjab) 98 – Tarun Bhargava Vrs State of Haryana & Another.
5) (2008) 3 CPR 158 (HP) – M/s Automobiles Pvt. Ltd. & Another Vrs. Bhagwan Dass Jassal & Ors.
6) (2008) 3 CPR 45 (SC) - Tata Finance Ltd. Vrs. Francis Soeiro.
7) (2010) 1 CPR 119 (HP) 118 – Smti Saroj Chandhoke Vrs. Shri Ganga Ram Hospital & Another
8) (2010) 1 CPR 253 (Kerala) – The Vice Chairman, ING Vysya Bank, Rural Banking Vrs. Prasad M.Cheriyan.
9) (1994) AIR 343 (Bombay) – Dena Bank, Ahmednagar Vrs. Prakash Birbhan Kataria & Others.
10)10.(1995) 3 SCC 583 Laxmi Engineering Works Vrs. PGS Industrial Institute.
11)(1995) AIR SC 1428 – B.P. Jeevan Reddy & Mrs. Sujata Vrs. Manohar, JJ.
12)(2009) Digest Vol.1 Pg. 728 - Consumer Education & Research Society & Others Vrs. Ahmedabad Municipal Corp. & Others.
13)(2009) Digest Vol.1 Pg. 691 – Diwakar Goiram Porkhayat Vrs. National Insurance Corp. Ltd.
8. We have read the aforesaid judgments relied upon by the Appellant’s counsel but we find none of them dealt with the question involved in the present case. What has been decided, broadly, is that the financier or the banking authority cannot re-possess the vehicle purchased on hire-purchase system or purchased by taking loan from any financial institution by use of force. There may be default in payment of installment, yet the vehicle cannot be seized or re-possessed by the financiers without giving any notice and opportunity to the loanee and without resorting to legal and due procedure. In other words, the purchaser of the vehicle should not be made to suffer for the illegal action of the financier. In our considered view, the judgments rendered in the above mentioned cases would not be applicable to the present case in asmuchas the pleaded case of the Appellant/Complainant is that he is “engaged in transportation business and have earned good reputation within a short period of his business in Shillong city”.
(i) We have found that the learned DF has considered the issue No.(i) in the right perspective applying the provision under Section 2(1) (d) of the Consumer Protection Act, 1986 which defines the term “Consumer”. Because of the admitted position that the Appellant/Complainant is engaged in transportation business as stated in paragraph 3 of the complaint petition and that the truck in question has been used for commercial purposes, in our considered view, the benefits provided in the Explanation to said Section could not be extended for the simple reason that there is nothing on record that being a person engaged in transportation business, he is not having several trucks/vehicles for running his business. In fact in his complaint petition, he has nowhere stated that he has no other vehicle/truck except the truck in question. No attempt has been made by the Appellant to show or prove that the Appellant was earning from the said truck and his family is solely dependent on the small earning from the said truck. The Appellant also made no attempt to show that the truck was used exclusively for the purpose of earning his livelihood by means of self employment. This being the position, it can safely be held that the Complainant is not a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and, therefore not entitled to relief sought for in his complaint. The Appellant’s case is hit by clause (1)(d) of Section 2 of the Consumer Protection Act as he purchased the truck for commercial purpose to improve his transportation business and not for self employment. The Hon’ble National Commission in the case of Western India State Motors, Vrs, Sobhag Mal Meena, reported in 1993 (1) CLT 182(NC), held that plying a taxi for hire is clearly a commercial purpose and purchaser of such vehicle, specifically for commercial purpose, is not a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
9. In the aforesaid facts and circumstances, the complainant cannot seek remedy under the Consumer Protection Act. His remedy lies in ordinary Civil Court which he may approach, if so advised, and in such case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for a suit, in accordance with the judgement of the Hon’ble Supreme Court Laxmi Engineering Works vrs P. S. G Industrial Institute reported in AIR 1995 SC 1428. There is no infirmity or illegality, either in facts or law, in the impugned order of the learned District Forum requiring interference of this Commission in Appeal.
10.There is no merit in this appeal and it accordingly stands dismissed. No order as to cost.
11.Return the LCR along with a copy of this judgment and order.
