This complaint coming up before us for final hearing on                       28-08-14 in the presence of Sri G. Ravindra Prasad, advocate for the complainant and Sri B.S.R.K. Prasad, advocate for the opposite parties, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:- The complainant filed this complaint under section 12 of the Consumer Protection Act seeking  return of the vehicle AP 07 TB 9495; Rs.3,00,000/- as compensation for deficiency of service and for costs.

2.      The averments of the complaint in brief are these:

        The complainant purchased AP 07 TB 9495 with the financial assistance of the opposite parties.   The complainant has to discharge the loan amount of Rs.19,82,871/- in 57 monthly installments @Rs.47,495/- commencing from 01-09-11.   The complainant paid 25 installments by December, 2013.   Employees of the opposite parties namely M. Bharat Kumar, D. Prasad, Ch. L. Narayana used to come to Auto Nagar, Guntur and collect installment amounts from the complainant and other borrowers.   The complainant suffered loss due to lack of business in road transport, scams, locking in mining and coal mines and hike in diesel rates.   The complainant also incurred Rs.1,36,000/- for repair of engine, Rs.1,06,000/- for replacement of tyres and Rs.15,000/- for replacement of batteries in December, 2013.  Under those circumstances, the complainant could not pay three installment amounts to the opposite parties by December, 2013.    Six members belonging to the opposite party came in a car and high handedly stopped and seized the said vehicle on 29-01-14 near Tellapalem of Visakhapatnam district.   The opposite parties parked the said vehicle at Visakhapatnam yard.   The complainant paid Rs.50,000/- on 30-01-14 as demanded by the opposite parties with a hope of getting the said vehicle released.   The opposite parties seized the vehicle without issuing any notice.   Due to the said illegal and unlawful act of the opposite parties, the complainant suffered a lot.   The complainant and his brother M. Srinivasa Rao approached the opposite parties for rescheduling the balance amount who in turn refused.   Due to  illegal seizure of the said  vehicle the complainant suffered financial loss and mental agony.   The complainant on         04-02-14 got issued notice to the opposite parties.   The opposite parties neither returned the vehicle nor gave reply.     The opposite parties seizing the vehicle high handedly and forcibly amounted to deficiency in service.   The complaint therefore be allowed.

3.    The contention of the opposite parties in nutshell is hereunder:

        The complainant was in possession and owner of ten commercial vehicles and disclosed them in his loan application and as such the complainant is not a consumer within the purview of Consumer Protection Act.   The complainant in his agreement agreed to the jurisdiction of courts at Delhi and subject to arbitration clause.   The complaint is not maintainable on account of arbitration clause and agreement.   The arbitration clause negates adjudication of dispute by any other Forum/court.   The consumer Forum should not entertain any complaint or pass any order when the matter had already been seized by arbitral tribunal.   The complainant is a defaulter in payment of installments.   The opposite party on 30-10-13 issued notice to the complainant and his guarantors calling upon them to handover the possession of vehicle in question and to pay the outstanding amount of Rs.14,84,480.20 ps.   The opposite parties moved an application u/s 17 (1) of Arbitration & Conciliation Act, 1996 for appointment of receiver before the learned arbitrator for taking possession of the said vehicle.   The learned arbitrator allowed the said application and thereby appointed Sri MJV Ramana, Centre Manager of the opposite parties as receiver to take over possession of the vehicle in question.   To minimize the loss the opposite parties sold the vehicle after obtaining permission from the learned arbitrator.   The opposite parties have already initiated process of selling the vehicle and received a sum of Rs.1,50,000/- as token money from the successful bidder.  The complainant filed this complaint as a counter blast to arbitration proceedings.    The complaint therefore be dismissed.

4.  Exs.A-1 to A-5 on behalf of the complainant and Exs.B-1 to B-10 on behalf of the opposite parties were marked.     

5.   Now the points that arose for consideration in this complaint are:

      1. Whether this Forum has territorial jurisdiction to entertain the              complaint?

      2. Whether the complainant is a consumer within the purview of              the Consumer Protection Act?

      3. Whether the complaint is barred in view of arbitration clause? 

      4. Whether the opposite parties seized the vehicle without prior               notice to         the complainant and if so amounted to deficiency in                    service?

      5. Whether the complainant is entitled to compensation of                      Rs.3,00,000/-?

      6. To what relief?

6.   The admitted facts in this case are these. 

        i). The complainant purchased the vehicle AP 07 TB 9495 with               the financial assistance of the opposite parties.

        ii). The complainant has to discharge the loan of Rs.19,82,871/-                      in 57 monthly installments @Rs.47,495/-.

        iii).The complainant committed default in payment of                                            three installment amounts by December, 2013.

        iv). The opposite parties seized the vehicle at Tellapalem of                             Visakhapatnam district on 29-01-14.

7.     POINT No.1:-   The complainant filed this complaint on          03-03-14 showing the opposite parties as residents of Delhi and Vijayawada.  The registry on 10-03-14 raised the following defects requiring the complainant to rectify them on or before 25-03-14.  

“1. Postal address particulars i.e., door number and street name

                Of the complainant shall be mentioned in the cause title.

2. The complainant is seeking direction to the opposite   parties to reschedule the loan by extending two years time for   re-payment.  Explain how this Forum can grant such relief   u/s 14 of C.P.Act? (Deleted while rectifying the defect)

3. The complainant claims Rs.2750/- for running loss per day.  So the vehicle is running for commercial purpose.   Explain how the complainant is come within the definition of consumer u/s 2(10(d) of C.P.Act? (Deleted while rectifying the defect)

4. Territorial jurisdiction para to be mention in the complaint”.       

While answering the 4^th defect, the complainant mentioned that as agents of the opposite parties collected installment amounts at Guntur this Forum has got territorial jurisdiction u/s 11(2) of the Consumer Protection Act.

8.     The learned counsel for the complainant contended that the opposite party has not raised the aspect of territorial jurisdiction of this Forum to entertain the complaint.   On the other hand, the learned counsel for the opposite parties resisted the said contention that it is a question of law and even in the absence of such  pleading to that effect the Forum can decide it.

9.     Section 11 (2) of the Consumer Protection Act deals with territorial jurisdiction of consumer Fora and it reads as follows:

    “11. (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a)  the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)  any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) The cause of action, wholly or in part, arises. 

10.  The complainant obtained loan from the 2^nd opposite party at Vijayawada.   It is not the case of the complainant that the opposite parties have a branch office at Guntur.   To confer jurisdiction on this Forum the complainant while rectifying the 4^th defect mentioned that agents of opposite parties collected installment amounts at Guntur.

11.   Now this Forum has to see whether the opposite parties collecting installment amounts from the complainant at Guntur confers jurisdiction on this Forum or not. Ex.B-2 is copy of vehicle/hypothecation agreement entered in between the complainant and the opposite parties.   Clause B of Ex.B-2 deals with mode of payment.  In Clause B of Ex.B-2 it was mentioned that the installments are payable by the borrower (s) to the lender at New Delhi, at the address of lender mentioned in those agreement or to its order.   In view of the said clause the opposite parties collecting installments at Guntur through its agents as contended by the complainant is having considerable force that too in the absence of specific denial by the opposite parties.

12.      Mere collection of installment amounts in our considered opinion did not amount to part of cause of action and cannot confer jurisdiction on that Forum where installment amounts were collected as mode of payment of installment amounts generally is a convenience to any borrower(s).   But in view of the above clause mentioned in clause B of Ex.B-2 dealing with mode of payment it amounted to part of cause of action also rather than a matter of convenience.   We therefore answer this point against the opposite parties.

13. POINT No.2:-   The complainant did not mention his occupation either in long cause title or in his evidence affidavit filed on                  12-06-14.   The complainant in his evidence affidavit sought the relief of payment of Rs.93,500/- towards running loss for keeping the vehicle illegally in their hands and also continue to pay Rs.2750/- per day as running loss till delivery though scored off those reliefs in his complaint.  The said mistake it appears to have kept in due to copy and paste procedure being in practice.

14.   The opposite parties in para 3 of their version categorically mentioned that prior to finance of the vehicle in question from the opposite party the complainant was in possession and owner of ten commercial vehicles and the said fact had been disclosed by the complainant in the loan application form dated 28-06-11.  The opposite parties along with copy of vehicle loan cum hypothecation agreement (Ex.B-2), enclosed  copies of certificate of registration issued by Transport Department relating to the vehicles AP 13X 3293, AP 07Y 2455, AP 07 TB 9495 (subject vehicle).   In RC of vehicles        AP 13X 3293 and AP07 TB 9495 name of the registered owner mentioned was Tulasi Rama Krishna s/o Satyanarayana resident of  14-113, Vengalayapalem, Guntur-522005 and Moparthy Tulasi Rama Krishna s/o Satyanarayana, 14-113, Vengalayapalem, Guntur.   The opposite parties also filed copy of credit information report relating to the complainant maintained by Credit Information Bureau (India) Limited (CIBIL).  As seen from Ex.B-1 the said report related to Tulasi Rama Krishna Moparthy. Ex.B-1 revealed that the complainant obtained loan of Rs.6,50,000/- on 10-07-12; Rs.19,92,000/- on       17-01-12; Rs.8,50,000/- on 24-05-08; Rs.8,50,000/- on 10-05-08; Rs.12,20,000/- on 27-09-07 from undisclosed lenders.  In spite of such contention  by the opposite parties both in the version and affidavit the complainant did not chose to deny the same in his evidence affidavit filed on 12-06-14.   Further it is not the case of the complainant that he purchased the subject vehicle with the financial assistance of the opposite parties for eking out his livelihood by way of self employment.   Under those circumstances, the contention of the opposite parties that the complainant purchased the subject vehicle for commercial purpose remained unrebutted. 

15. Section 2(1)(c)(vi)(ii) of Consumer Protection Act defines consumer and it reads as follows:

(d)       "Consumer" means any person who—

(i)   ………………………………….

(ii)  hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

16.   In Economic Transport Organization vs. Charan Spinning Mills (P) Limited and another 2010 (II) CPR 181 (SC)(FB) = 2010 CTJ 361 (SC) it was held

                “Section 2 (1) (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’.   After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases.   But the said amendment will not apply to complaints filed before the amendment.”

17.   In Smt. Sushma Goel Vs Punjab National Bank, 2011 (2) C.P.R. 376 (NC) it was held that bank account maintained by a person/ organization for a commercial purpose falls out side the purview of Consumer Protection Act.

18.  In M/s.Nidhi Knitwears (P) Ltd. Through its Managing Directors versus the Manager, Bank of Maharashtra & another, 2014(2) CPR 676 (NC) a reference was made to the judgment of Supreme court in Civil Appeal No 5458/2013 where in it was held

          “This appeal filed is directed against order                dt.01-02-13 of the 2014(2) CPR (NC) National Consumer Disputes Redressal Commission New Delhi ( for short, the National Commission’) whereby the complaint filed by the appellant under Section 21 of the Consumer Protection Act, 1986 ( for short, the Act’) was dismissed as not maintainable.

        We have heard learned counsel for the appellant and carefully perused the record.  The averments contained in paragraphs 2(A), 2(G), 2(N), 2(Q) of the complaint and paragraphs 3 to 5 of affidavit filed by her sometime in October, 2012 clearly show that the complainant had taken the disputed site from Mr.Ashwani Bahl who, in turn, had purchased the site for business purpose.  It was neither the pleaded case of the appellant nor any evidence was produced by her before the National Commission to show that she had taken the site for earning livelihood.  The National took cognizance of all the facts and observed:

“6.   It is thus clear that the complainant purchasing the said plot for commercial purpose.  There is no pleading or any evidence to show that the shop purchased by her is exclusively for the purpose of her livelihood, by means of self-employment. 

7.     It must be borne in mind that the complainant has already paid more than Rs.2.00 crores.  The total cost of the shop is of about Rs.3.00 crores.  The complainant is silent about her occupation.  In her affidavit, in para nos.3, 4, 5& 6 for the first time, she mentioned:

“3. That the complainant had purchased the said commercial area being provided respondent for her end use with a view to open a showroom for interior designing in the said area.

4.   The complainant is working as a Interior Designer in the firm which is owned by her father in law i.e., Mr.Malik Chand Birla and her husband i.e., Mr. Anurag Birla under the name and style of “M/s.Origin Overseas (Queen 10 the Home Affairs)”.

5.     That with the view to provide a permanent place for the said boutique when the same was shut down in Hauz Khas, the complainant was forced to move to Gurgaon temporarily in the Grand Mall, GS-122, thereafter the complainant decided to purchase the instant area for her usage. 

6. XXX”.   

19.   The contents of Ex.B-1 and copies  of registration certificates of the vehicles AP13X 3293 and AP 07 TB 9495 leads us to draw an inference that the complainant hired the services of the opposite parties for commercial purpose and as such is not a consumer within the purview of Consumer Protection Act.   We therefore answer this point in favour of the opposite parties.

20.   POINTS 3 to 5:-   In view of our findings on point No.2, we are of the considered opinion that no finding need be given on these points.   We therefore answer these points accordingly.

21.  POINT No.6:-   In view of above findings, in the result the complaint is dismissed with costs of Rs.2,000/- (Rupees two thousand only).

     Dictated to Junior Stenographer, transcribed by her, corrected by me and pronounced in the open Forum dated this the 5^th day of September, 2014.

MEMBER                                      MEMBER                     PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:-

                                                                                          PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.