SMT. RAVI SUSHA: PRESIDENT

The complaint   has been filed U/s 35 of Consumer Protection Act 2019 seeking to get an order directing opposite party to pay compensation of Rs.50,000/- to the complainant and cost of the proceedings.  Also to get declaration that the complainants are not liable to pay any amount to the opposite party in connection with vehicular loan agreement dated 30/09/2013.

            The    complainant’s case in brief, is that the 1^st complainant availed a vehicle loan from OP Company on 30/09/2013 through Kannur branch office.  2^nd complainant is the guarantor of the 1^st complainant in respect of the said loan transaction.  At the time of availing the said loan, the officials under the OP Company asked the complainants to sign several printed blank forms by way of security.  The loan amount was Rs.3,80,000/-, which was availed for the purpose of purchasing a 2^nd hand lorry, 2008 model Eicher 10.8 Truck, bearing registration No. KL 58 A 5560.  The OP without issuing any notice to the complainants forcefully reposed the said vehicle during 2019 and sold the same to the hench men of the officials of the OP company.  The 1^st complainant has repaid more than Rs.1,50,000/-.  The market value of subject vehicle was not less than Rs.2,00,000/- as on the date of illegal repossession of the same.  Complainant submitted that after the illegal repossession of the said vehicle 1^st petitioner contacted the officials of OP company at Kannur, it was informed that the complainants had not pay any amount in future and no further action is proposed to be taken in the said matter.  Recently complainants received notice regarding arbitration proceedings initiated by the OP at Coimbatore in respect of the impugned loan transaction vide Arbitration case No.368K2019.  In the claim statement filed before the arbitration tribunal also 24% interest is claimed and an exorbitant amount of Rs.7,60,232/-  is claimed as the amount due in the year 2019.  Complainant stated that there is grave deficiency of service on the part of the OP.  Therefore the complainant is entitled to get compensation from the OP.  Hence the complaint.

            OP filed version denying all the material averments of the complainant stating that the subject matter of dispute was already referred to the Honorable Arbitration Tribunal, Coimbatore and the complaints herein have already appeared before the said Hon’ble Arbitration Tribunal and submitted themselves to the Jurisdiction of the learned Arbitrator and filed their counter and also an application to decide the maintainability and contesting the matter.  It was repeatedly held, that as the proceedings under Arbitration and conciliation act are already going on, the proceedings under Consumer Protection Act, 1986 cannot proceed simultaneously.  It is submitted that the complainants herein are running business  for the transportation of stones and they are having vegetable whole sale shop and all the vehicle referred above were utilized for their business and commercial  activities.  Te present subject matter of this dispute, vehicle bearing registration No. KL 58-a-5560 was also utilized for the complainants’ business and commercial activities. Commercial activities are not covered under the Consumer Protection Act and liable to be dismissed in limine.  OP submitted that in or around third week of June 2016, the OP came to know that the complaints herein were compelled to close their Stone quarry at Kelakam due to Govt. regulation and the tall their vehicle were seized by the Police on the charge of illegal mining without proper licenser issued by the appropriate authorities.  The OP further came to know that the above said vehicle (Reg.No. KL 58 A 5560) was off the road for more than 2 years and parked near a workshop at Iritty.  On inspection the condition of the vehicle was bad all the valuable parts were removed in the vehicle and parked in scarp condition.  The matter was discussed with the complainants herein and complainants agreed to dispose-off the scrapped vehicle on their own for Rs.45,000/- and agreed to pay the remaining balance due  and outstanding .  Considering the relationship that was maintained by the OP with the complainant and considering the conditions of the hired vehicle, that the OP permitted the petitioner to dispose off the hired vehicle with conditions to pay the remaining amount due and payable.  The complainants herein sold the vehicle to third party purchaser identified by them and the OP received Rs.45,000/- from the said purchased and credited the same in the respective account.  After crediting the same the OP herein issued a demand recall notice 19/06/2019 demanding the remaining amount due and outstanding and the 1^st complainant herein received the same on 25/06/2019 and the 2^nd complainant received the same on 26/06/2019. Hence, prayed for the dismissal of complaint with compensatory cost.

            Complainant has filed his chief affidavit and documents.  He has been examined as Pw1 and marked the documents as Ext.A1 to A3.   Pw1 was subjected to cross examination for the OP.  On the side of OP no documentary and oral evidence is adduced.  After closing the evidence the learned counsel of complainant made argument.

            Here the 1^st pleading of the OP is that since the subject matter of dispute is pending before Arbitrator, the present complaint is not maintainable.

            With regard to said point Pw1 deposed that the arbitrator has not passed any award in the said case.  Though OP pleaded that an Arbitration Award was passed, no document in connection with the said pleading is not produced before us.  As per sec.100 of Consumer protection Act 2019, this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

            Hence pending of an Arbitration case does not bar a consumer to file and proceed a consumer case under Consumer protection Act 2019.  So the 1^st point is found in favour of the complainant.

            Another contention raised by the OP is that the complainant is not a consumer is defined under Consumer Protection Act.  The complainants are having stone quarry business and they used the vehicle for their business and commercial transaction.  Pw1 deposed that though he used the vehicle for commercial purpose, it was for his livelihood.  Here also OP failed to submit evidence before us that the complainants have other vehicles as stated in the version.  Hence as per sec. 7(ii)    of Consumer Protection Act 2019, ‘commercial purpose’ does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of              self-employment.  Moreover, the present complaint relates to the forcible possession of the hired vehicle and not with regard to purchase of the vehicle.

            So the complainants come under the definition of Consumer protection Act.

            OP further submitted that the OP further came to know that the above said vehicle (Reg.No. KL 58 A 5560) was off the road for more than 2 years and parked near a workshop at Iritty.  On inspection the condition of the vehicle was bad all the valuable parts were removed in the vehicle and parked in scarp condition.  The matter was discussed with the complainants herein and complainants agreed to dispose-off the scrapped vehicle on their own for Rs.45,000/- and agreed to pay the remaining balance due  and outstanding .  Considering the relationship that was maintained by the OP with the complainant and considering the conditions of the hired vehicle, that the OP permitted the petitioner to dispose off the hired vehicle with conditions to pay the remaining amount due and payable.  The complainants herein sold the vehicle to third party purchaser identified by them and the OP received Rs.45,000/- from the said purchased and credited the same in the respective account.  After crediting the same the OP herein issued a demand recall notice 19/06/2019 demanding the remaining amount due and outstanding and the 1^st complainant herein received the same on 25/06/2019 and the 2^nd complainant received the same on 26/06/2019.

            Here according to OP, question of forcible possession does not arise at all.

            We have considered the submissions so put forward on behalf of the OP and have gone through the materials on record available before us and find that, in this case, the complainants put forward a case that being the bonafide purchasers, they paid a substantial amount to more than Rs.1,50,000/- in favour of OP.  The OP on flimsy ground had taken forcible possession of the vehicle in question.  The OP has taken a plea to the effect that OP submitted that in or around third week of June 2016, the OP came to know that the complaints herein were compelled to close their Stone quarry at Kelakam due to Govt. regulation and the tall their vehicle were seized by the Police on the charge of illegal mining without proper licenser issued by the appropriate authorities.  Further, contended that the OP further came to know that the above said vehicle (Reg.No. KL 58 A 5560) was off the road for more than 2 years and parked near a workshop at Iritty.  On inspection the condition of the vehicle was bad all the valuable parts were removed in the vehicle and parked in scarp condition.  The matter was discussed with the complainants herein and complainants agreed to dispose-off the scrapped vehicle on their own for Rs.45,000/- and agreed to pay the remaining balance due  and outstanding .  Considering the relationship that was maintained by the OP with the complainant and considering the conditions of the hired vehicle, that the OP permitted the petitioner to dispose off the hired vehicle with conditions to pay the remaining amount due and payable.  The complainants herein sold the vehicle to third party purchaser identified by them and the OP received Rs.45,000/- from the said purchased and credited the same in the respective account.  After crediting the same the OP herein issued a demand recall notice 19/06/2019 demanding the remaining amount due and outstanding and the 1^st complainant herein received the same on 25/06/2019 and the 2^nd complainant received the same on 26/06/2019.  As such question of forcible taking back possession of the vehicle dose not arise a tall and the allegation made in respect of the repossession are false and denied.

            Here though the submission of OP that the vehicle was sold by the complainant to a third party purchaser and the OP received Rs.45,000/- from the said purchaser, and credited the same in the respective account, was denied by the complainant, OP has not submitted any proof for the said fact.  From the cross-examination of Pw1 it is evident that complainant has  paid Rs.1,70,000/- in the loan account.

            From the evidence, it is revealed that he vehicle was possessed by the OP without complying the legal formalities and sold it.

            The apex court in numerous decisions has clearly observed that forcible taking possession of vehicle is not permitted.  Here OPs failed to produce the sale value of the vehicle.

            Here complainant has stated that the loan amount was Rs.3,80,000/-.  The 1^st complainant has repaid more than Rs.1,50,000/-.  The market value of subject vehicle was not less than Rs.2,00,000/- as on the date of illegal repossession of the same.  Complainant alleged that after the illegal repossession of the said vehicle 1^st petitioner contacted the officials of OP, it was informed that the complainants had not pay any amount in future and no further action is proposed to be taken in the said matter.  During cross-examination also Pw1 deposed like it.  Here, it is to be noted that OP has not adduced any oral or documentary evidence.  OP has not entered into the witness box to tender their evidence for proving the contentions as stated in the version.  Mere contention raised in the version itself is not sufficient to prove their case.  Hence without adducing any evidence, we are constrained to believe the averment and allegation of the complainant.  Since complainant has repaid Rs.1,70,000/- and OP has forcibly taking possession of the vehicle and sold it We are of the view that complainants are not liable to pay any amount to the OP in connection with vehicular loan agreement dated 30/09/2013 between complainant and OP.  When forcibly taking possession of the vehicle is not permitted under the law, we are of the considered opinion the there is deficiency on the part of OP.  Hence OP has to pay compensation of Rs.15,000/-  to the complainant and Rs.10,000/- towards cost of the proceedings.

            In the result complaint is allowed in part.  The complainants are not liable to pay any further amount to the opposite party in connection with vehicular loan in this case.  Opposite party is directed to pay Rs.10,000/- towards compensation to the complainant for the deficiency in service on the part of opposite party and also pay Rs.5,000/- towards cost of proceedings.  Opposite party shall pay compensation and cost as ordered within one month from the date of receipt of the certified copy of this order.  Failing which Rs.10,000/-  carries interest @ 9% per annum from the date of order till realization.  Complainant is at liberty to execute the order as per provision of Consumer Protection Act 2019.

Exts.

A1-Notice regarding Arbitration proceedings

A2- Copy of claim statement

A3- Copy of loan agreement

Pw1-Complainant 1

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar