The present complaint filed U/s 12 of the Consumer Protection Act' 1986 (for short, 'the Act') by the complainant Manpreet Singh  prays for the necessary directions to the opposite party to receive the not paid instalments  from him and to release his vehicle i.e. Truck immediately. Opposite party be further directed to pay Rs.1,00,000/- as compensation for mental agony, physical harassment and financial loss and deficiency in service on the part of the opposite parties alongwith Rs.5000/- as litigation expenses, in the interest of justice.

2.      The case of the complainant in brief is that he was totally unemployed, so for the purpose of earning his livelihood for him and his family members purchased a Truck make TATA 1613 No.PB-06-1487. He himself was plying the truck by way of self employment and the truck was financed by the opposite parties. He had been making payment of instalments with the opposite parties regularly upto January, 2015, but on account of financial crisis he could not deposit two instalments of loan amount. Although he approached the opposite parties and requested that he will make the payment of instalments with interest. The opposite parties took possession of his vehicle on 21.4.2015 forcibly and since then vehicle is in illegally custody of the opposite parties. He approached the opposite parties time and again and requested to receive the amount of loan instalments and to release the vehicle, but of no use. He also served a registered A.D. legal notice dated 19.5.2015 to the opposite parties through his counsel but the opposite party instead of complying with the notice gave a fabricated and fake reply on false and misleading facts. The opposite parties are liable to handover possession of the vehicle to him as he had paid instalments of loan from time to time except two instalments, which he is ready to pay with interest but the opposite parties with malafide intention and ulterior motive are not receiving the instalments from him. Hence this complaint.

 3.        Upon notice, the OPs appeared and filed their reply through their counsel taking the preliminary objections that the complainant does not fall within the definition of Consumer as provided under section 2 (i) of the Act and the complainant is guilty of making mis-statement and suppressed the actual facts, thus he has disentitled himself from claiming the relief sought in the present complaint; the complainant has no cause of action to file the present complaint. Thus the complaint is liable to be dismissed on this ground alone and even as per clause 27 of HPA dated 31.1.2014 all the disputes arise out between the parties will be referred to one of Arbitrator out of the panel of Arbitrations mentioned in the agreement. But instead of filing the same the complainant has unnecessarily filed the present complaint.  On merits, it was admitted that complainant was making payment. Whatever the payment was given by the complainant it has been duly entered into the account books of the opposite parties against receipt. Due to non payment of instalment a letter dated 25.3.2015 was sent to the complainant for making the payment of balance amount. The said letter which was sent to the guarantors was received back with the report of refusal. Actually, a notice dated 19.5.2015 has been received which was duly replied by counsel of the opposite parties. The opposite party has given the proper opportunity to complainant to clear the dues but he intentionally and deliberately failed to file response to the opposite party and ultimately the vehicle in question was sold on 7.5.2015 in public auction. It was absolutely wrong that opposite party having any malafide intention. Infact the opposite party time and again approached the complainant. Thus there is no deficiency in service on the part of the opposite parties. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

4.    Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C10 alongwith photographs Ex.C2 and Ex.C10 and closed the evidence. 

5.       Counsel for the opposite party tendered into evidence affidavit of Parminder Singh, Branch Mamager of opposite party Ex.OPW-1/A, alongwith other documents Ex.OP1 to Ex.OP12 and closed the evidence.

6.       We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents ignored to be produced by the contesting litigants while adjudicating the present complaint. We find that the complainant’s dispute comprises of two principal/prime allegations: i) forcible re-possession of the financed vehicle; and ii) improper appropriation of the loan repayments by the OP financers. We find that the OP financers were bestowed upon with the legal right to repossess the financed vehicle by virtue of the duly executed Hire Purchase Agreement (Ex.OP2) duly supported by the complainant’s Acknowledgement of Agreement (Ex.OP3); further, the complainant has failed to produce any cogent evidence of ‘forcible possession’ whereas the OP financers have duly produced the post-repossession intimation letter (Ex.OP4) of even date i.e., 25.03.2015 (with postal-receipts Ex.OP5 to OP7) and also the pre-auction notice (Ex.OP9) dated 13.04.2015 along with its dispatch receipts Ex.OP10 to OP12 and that successfully rebuts/disproves the complainant’s allegation of forcible (illegal) repossession of the financed vehicle. Regarding, the allegation of improper appropriation of loan ‘repayments’ the complainant (upon whom the ‘onus of proof’ lay heavily) could not/ did not produce any cogent evidence (amongst the produced documents Ex.C1 to C10) to prove the allegation of non-appropriation/improper appropriation of deposited installments (Ex.C6 to C9) in the loan account; and, in the absence of any documentary evidence the allegation as made out in the complaint/affidavit Ex.C1/legal noticeEx.C2 amounts to bald-statement only. Moreover, the issues pertaining to ‘settlement of accounts’ do fall outside the purview of the governing C P Act and as such the present complainant shall be free to approach the appropriate court of competent jurisdiction to seek the requisite relief.

7.       In the light of the all above, we ORDER for the dismissal of the present complaint but with an award of liberty to the complainant to approach any other appropriate court/Forum of his choice/advise to seek the requisite relief in accordance with law and as per the procedure prescribed in law. The parties are also directed to bear their own costs, here.

8.          Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

               (Naveen Puri)

                                                                                   President   

Announced:                                                        (Jagdeep Kaur)       

November,27 2015                                                  Member

*MK*