The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is M/s. Hinduja Leyland (F) Ltd., Represented through its Regional Manager, BJB Nagar, Bhubaneswar, O.P No.2 is the Branch Manager, M/s. Hinduja Leyland (F) Ltd., Nuasahi, Balasore and O.P No.3 is the R.T.O, Balasore.

                    2. The case of the Complainant in brief is that the Complainant in order to maintain his livelihood, had availed a loan of Rs.14,00,000/- (Rupees Fourteen lacs) only from O.Ps-Company on dtd.30.06.2015 for purchasing a truck bearing Regd. No. OD-O1H-9151 for transport business at LPG bottling plant on the basis of an agreement executed with Indian Oil Corporation. The Complainant has a transport business namely M/s. Mayadhar Panda Transport at Saraswatipur, Balasore. The loan amount with financial charges is to be repaid @ Rs.38,516/- (Rupees Thirty eight thousand five hundred sixteen) only by the Complainant from August-2015 vide contract No.ORBABA00068 and the Complainant paid monthly installments up to June-2016 and on cancellation of agreement by the LPG bottling plant on 11.06.2016, the Complainant failed to repay the monthly installments. Accordingly, the O.Ps issued notice to the Complainant on 04.05.2017 for seizure of the vehicle and deputed recovery agent of O.Ps-Company to take forceful possession of the aforesaid vehicle and threatening for auction sale of the same vehicle. Since 1st July, 2016 till date, the Complainant has been running to the O.Ps to get back the vehicle on payment of arrear dues as he had spent lakhs of rupees to bring the vehicle for plying condition. The O.Ps finally on 16.03.18 informed to the Complainant not to return the vehicle, rather the same would be sold on auction sale, causing irreparable loss to the Complainant. Cause of action to file this case arose on 09.06.2017 and on 16.03.2018. The Complainant has prayed for getting back his vehicle on payment of arrear and not to auction the said vehicle along with compensation. Neither the Complainant nor his Advocate was present at the time of hearing of this case.

                     3. Written Version filed by the O.Ps No.1 and 2 denying on the point of maintainability, Consumer as well as its cause of action. The O.Ps No.1 and 2 have further submitted that the Complainant failed to pay regular installments to the O.Ps No.1 and 2 and by suppressing the fact of keeping a huge amount of loan unpaid, the Complainant has made false allegation of illegal and forceful repossession of his vehicle. The Complainant was a habitual defaulter in payment of installments. The O.P No.1 and 2 have suffered huge loss in this transaction. When a huge amount of loan remained outstanding against the Complainant, the O.Ps No.1 and 2 vide their letter dtd.04.05.2017, 09.06.2017 and Advocate notice dtd.25.10.2017 demanded the Complainant to clear up the outstanding dues and also made him aware that in default of payment, the vehicle would be seized and sold as per terms and conditions of the loan agreement. But, there was no response on the part of the Complainant, for which finding no other way, the O.Ps No.1 and 2 peacefully repossessed the vehicle on 12.11.2017 drawing inventory. Even after repossession of the vehicle, the Complainant did not pay the outstanding due and took no interest in getting the vehicle released. Thereafter, the O.Ps No.1 and 2 issued one notice to the Complainant on dtd.28.12.2017 asking him to pay the settlement amount of Rs.14,37,483/- (Rupees Fourteen lacs thirty seven thousand four hundred eighty three) only and to take back his vehicle and was also made aware that unless the Complainant pay the amount, the vehicle would be sold and the sale proceeds would be appropriated to his loan account and that in case of any shortfall, that would be recovered from the Complainant. But, the Complainant did not care to the notice and slept over the matter, for which the vehicle was put to public auction and the same was sold to the highest bidder Md. Imtiyaz Khan for Rs.6,95,000/- (Rupees Six lacs ninety five thousand) only, who sworn an affidavit before Sri Sisir Baran Dey, Notary Public, Balalsore to the effect that he would bear the burden of P.F, Insurance, Road Tax and other taxes relating to the vehicle and the O.Ps-Company would not be liable for the same. Then, the O.Ps No.1 and 2 duly intimated the O.P No.3 regarding such seizure and sale of the vehicle. The prayer of the Complainant seeking direction of the Forum not to auction the sale of the vehicle is not sustainable as the vehicle has already been auctioned and sold prior to filing of this case. As there being no deficiency of service, unfair trade practice etc. attributable to this O.Ps No.1 and 2, the Complainant is not entitled to any relief as claimed by him and this case is liable to be dismissed on merit.

                    4. Though sufficient opportunities were given to the O.P No.3, but he has neither appeared nor filed his written version in this case. The O.P No.3 is set ex-parte.

                    5. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether the Complainant is a Consumer as per C.P Act, 1986 ?

(iii) Whether there is any cause of action to file this case ?

(iv) To what relief the Complainant is entitled for ?

                    6. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate has participated in the hearing and remained absent on that day. However his pleading remains as it is. According to the pleading of the Complainant, due to non-payment of installment dues, the O.Ps No.1 and 2 forcibly took possession of the vehicle and threatened to sell by way of auction sale. Due to his financial stringency, the Complainant was failed to deposit the installments and admittedly, he is a defaulter. The Complainant has prayed to direct the O.Ps not to sale the vehicle by auction and return the same to him with compensation. The O.P.No.3 is set ex-parte as mentioned earlier. It has been argued on behalf of the O.Ps No.1 and 2 that huge amount is pending against the Complainant amounting to about Rs.14,37,483/- (Rupees Fourteen lacs thirty seven thousand four hundred eighty three) only as settled and when he intentionally failed to deposit the same, the O.Ps No.1 and 2 have issued proper notice to the Complainant on 04.05.2017, 09.06.2017 and 25.10.2017 vide Annuexure-A, B and C respectively. When there was no response from the side of the Complainant, the O.Ps No.1 and 2 repossessed the vehicle on 12.11.2017 by drawing proper inventory vide Annexure-D. After issuing notice to the Complainant on 28.12.2017 vide Annexure-E asking him for payment of Rs.14,37,483/- (Rupees Fourteen lacs thirty seven thousand four hundred eighty three) only, which is settled amount and failure to it, the O.P No.1 and 2 are duty bound to sell the vehicle on auction sale and the sale proceeds would be appropriated to his loan account and in case of any short fall, that would be recovered from the Complainant. However, the sale proceed was Rs.6,95,000/- (Rupees Six lacs ninety five thousand) only and one Md. Imtiyaz Khan purchased the vehicle. When the O.Ps No.1 and 2 adopted the practical procedure to sale the vehicle and when sale was prior to institution of the case, there is no deficiency of service on the part of the O.Ps No.1 and 2, for which the case of the Complainant is liable to be dismissed as argued. On perusal of the case record, it came to our notice that three other vehicles are in the name of the Complainant bearing Regd. No.OD-01H-9155, OD-01J-0021 and OD-01J-0151 as alleged. The Complainant is silent on this point by not adducing any congent evidence against it. So, we are bound to believe the allegation of O.Ps No.1 and 2 regarding the Complainant having more vehicles, which are/were used for commercial purposes. This vehicle in question was recovered and seized from the possession of one “Tebu Murmu”, who surrendered the vehicle to the O.Ps No.1 and 2 at the time of seizure. The Complainant is silent about the identity of Tebu Murmu, who may be driving the vehicle or plying the vehicle on behalf of the Complainant for any commercial gain. So, service availed by the Complainant from the O.Ps is not exclusively for the purpose of earning his livelihood by means of self  employment as per Section-2 (d) (ii) “explanation” of C.P Act, 1986. Moreover, in view of the authority reported in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara (Vrs.) Magma Leasing Ltd., where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that under a hire-purchase transaction, the financer does not render any service within the meaning of Consumer Protection Act, 1986 and the Petitioner/ Complainant is, thus, not a Consumer. Further, in view of the authority reported in Civil Appeal No.6347 of 2012 in the case of M/s. Micro Hotel P. Ltd. (Vrs.) M/s. Hotel Torrento Limited & Ors., wherein it has been held by the Hon’ble Supreme Court of India that if the repayments are not received as per the scheduled time frame, it will disturb the equilibrium of the financial arrangements of the Corporations. They do not have at their disposal unlimited funds. They have to cater to the needs of the intended borrowers with the available finance. Non-payment of the installment by a defaulter may stand on the way of a deserving borrower getting financial assistance.

                    7. So, in the circumstances, on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above authorities as discussed earlier, now this Forum come to the conclusion that the Complainant is not a Consumer as per C.P Act, 1986 and there is no deficiency of service on the part of the O.Ps, for which the Complainant is not entitled for any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-

                                                     O R D E R

                        The Consumer case is dismissed on contest against the O.Ps No.1 and 2 and on ex-parte against O.P No.3, but in the peculiar circumstances without cost.  

                        Pronounced in the open Forum on this day i.e. the 31st day of July, 2018 given under my Signature & Seal of the Forum.