SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s12 & 13 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging a deficiency in service against the Ops.
2. The case of the complainant, in short, is that he, being an educated unemployed and in order to maintain his livelihood, applied for a loan to purchase one passenger carrying auto before the OP and the OP, performing all formalities, sanctioned a sum of Rs.1,37,000/- on 27.2.2010 which was to be recovered in 35 consecutive instalments i.e. from 27.2.2010 to 25.12.2012. Thereafter, the OP-company delivered said auto in his favour. At the time of signing the agreement, the OP has not supplied any copy of the agreement nor given any opportunity to go through the terms and conditions of the agreement. Accordingly, the complainant used to pay his instalments regularly, but in the month of March, 2012 he became ill for which he could not pay his regular instalments to the OP. But the OP, on 23.5.2012, without any information seized the vehicle in question from his premises. Thus, the complainant paid all the back instalments along with fine amounting to Rs.23,850/- on 25.7.2012 obtaining a receipt thereof from the OP. At that time, the OP assured him to take back his vehicle later on. But after two days when the complainant had been to the OP to take back his vehicle, the OP claimed more money. Thereafter, the OP served a notice on the complainant on 12.12.2012 stating therein to sell the vehicle in auction. The above acts of the OP puts the complainant into unnecessary harassment and mental agony. That apart, the complainant has also sustained huge financial loss only due to the carelessness and negligence on the part of the OP. Hence, the complainant was constrained to file the present case with the prayers stated therein.
To substantiate his case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of customer copy of information of assets.
- Photocopy of letter of OP to complainant for taking over possession of vehicle.
- Photocopy of repayment schedule.
- Photocopy of money receipts.
- Photocopy of registration certificate.
- Photocopy of delivery challan.
3. On receipt of notice, OP made his appearance and filed written version. In his written version, although admitted the fact of purchase of vehicle in question by the complainant from him, emphatically challenged that the complainant has no cause of action to file the case and the case is not maintainable. OP has stated, inter alia, that the complainant is a defaulter for the initial tenure of the loan and he himself surrendered his vehicle before the OP on 23.5.2013. Thereafter, OP-company served notice on the complainant to clear up the default instalments along with charges for delayed payments and then the vehicle can be released in his favour. This OP has further taken the stand that this Commission lacks jurisdiction to entertain the dispute between the parties since there exist an arbitration clause in the hire purchase agreement executed between the parties and the arbitration proceeding shall be held in Mumbai. With the aforesaid facts & circumstances, it is prayed on behalf of the OP to dismiss the case with cost. In support of his stand, the OP has not relied upon any documentary evidence.
4. In view of the above averments of parties, the points for determination in this case are as follows:-
(i) Whether the complainant is a Consumer?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.Ps?
(v) Whether the complainant is entitled to get the relief, as sought for?
F I N D I N G S
5. The OP has submitted that the complainant does not fall within the meaning of consumer. On perusal of the pleadings of both the parties and the documents produced on behalf of the OP, it is held that the complainant is a bonafide consumer as defined U/s 2.1(d) of the Act.
6. For the sake of convenience and for better appreciation of the case, the Point No. ii, iii & iv are taken up together. The complainant has filed the present case claiming compensation along with other expenses on the ground that he had purchased one Auto on 27.2.2010 from OP-company on hypothecation amounting to Rs.1,37,000/- which was registered vide Regd. No. OR-01Q-3554 and it was agreed upon between the parties that the complainant would repay the total amount within 35 consecutive instalments. Annexure-6 shows that the aforesaid vehicle in question was delivered to the complainant.
7. In his complaint, complainant has stated that the OP fixed 35 instalments from 27.2.2010 to 25.12.2012 and he paid the instalments regularly up to March, 2012 and thereafter he became ill and has not paid his regular instalments and on 23.5.2012, the OP has seized the vehicle in question from his premises and on 25.7.2012 he paid all the back instalments and fine of Rs.23,850/- and the OP given receipt to him, but did not release the vehicle in his favour. To substantiate the above claim, the complainant has not filed a single document to show that he has regularly paid the instalments up to March, 2012 and on 25.7.2012 he paid all the back instalments and fine of Rs.23,850/-.
8. In the above premises, on perusal of Annexure-1, it came to light that the OP-company has already repossess the vehicle in question of the complainant on 23.5.2012. Annexure-2, the letter dated 12.12.2012 issued by the OP in favour of the complainant, speaks itself that the OP has taken possession of the vehicle as the complainant did not pay the monthly instalments and became defaulter. It is seen that after 12.12.2012, the complainant has not filed any document to prove that he paid the back instalments with fine.
9 On perusal of the case record, it is made out that on 1.7.2013, while the interim petition of the complainant was disposed of, the OP was directed to release the vehicle in favour of the complainant on receiving Rs.16,225/- i.e. 50% out of the total outstanding amount of Rs.32,450/- as on 31.5.2013 within a period of 10 days. But surprisingly, it is seen from the case record that the complainant has not complied with the aforesaid direction issued by this Commission.
10. In the present case, the complainant has not assigned any reason how the OP is violated his substantive right which forced him for remedy before this Commission. Cause of action should be clearly stated by the complainant and the burden of proof also lies upon him to prove his cause of action beyond all reasonable doubt. The cause of action is the heart of the complaint, without which a complaint can be dismissed.
11. From the above discussions made in the foregoing paragraphs, this Commission is of the considered opinion that although the complainant is a consumer, but he has no cause of action to file the present case and the same is not maintainable. Hence, deficiency in service on the part of the O.P does not arise. Consequently, the complainant is not entitled to the reliefs, as claimed in the complaint petition.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is dismissed on contest against the O.P, but in the facts and circumstances, no order as to costs.
Pronounced in the open court of this Commission, this the 9th day of April, 2024 under signature & seal of the commission.
