(Delivered on 19/01/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is field  by the original opposite party(for short O.P.) which  is hereinafter referred as  appellant, feeling aggrieved  by the order dated 02/04/2009 passed by the  District Consumer Forum, Nagpur  in consumer complaint  No. 646/2008,  by which  following direction has been given.

            The appellant shall return  the  seized  vehicle  bearing registration No. MH-29/M-569 within  period of  five  days   from the date of receipt of the copy of  the said order and shall pay to the original complainant /respondent  herein  compensation of  Rs. 2,000/- for physical and mental  harassment  and litigation cost  of Rs. 1000/-.

2.         We have heard  advocates  of both parties  appearing in this appeal and perused  the entire record of appeal.

3.         The facts which are not  disputed  in brief  are as under.

            The respondent  herein  had obtained  loan of Rs. 10,90,000/- from the  appellant –financer and thereby purchased  the truck in dispute.  However, as he was in arrears of  some  of the instalments , the appellant  seized that vehicle  from him. It is alleged by the respondent herein  that the vehicle  was seized  on 31/07/2008 by the  appellant  without giving  an notice or prior  intimation to him and this  constitute  deficiency in service  on the part of the appellant.  He also alleged that  he and his  family members  are dependent  on the  income of the said  vehicle and as  it is seized  by the appellant  they  are  facing  physical and  mental harassment.  Thus making  allegations accordingly, he filed  consumer  complaint  before the District Consumer Forum  below seeking direction  to the  appellant  to  return the seized  vehicle/truck  to him and to pay him compensation  at the rate of Rs. 3000/- per day with effect from 31/07/2008 till the possession of the truck is  handed over to him  and  also to pay him further  compensation of Rs. 50,000/- for physical and mental harassment   and litigation cost of  Rs. 25,000/-.

4.         The said  complaint was resisted by the O.P./appellant herein  by filing  reply /written version  before the District Consumer Forum. The defence  raised by the O.P./appellant in reply is that  as the respondent  purchased  the vehicle  purely for commercial purpose  and he has got more vehicle  apart from   the present vehicle and as  he  is earning  profit from the vehicle,  he is not  a consumer  and thus complaint before  the District Consumer Forum, is not maintainable.  Moreover, the District Consumer Forum has no territorial jurisdiction to entertain  and decide the complaint as Court at Mumbai  is  only having  jurisdiction  in view of the terms and conditions  of the agreement entered  into both the parties. Moreover, the dispute  is to be  resolved  by appointing  an arbitrator  as per agreement and hence,  on these count also complaint  is not maintainable.  Moreover, the  truck was purchased from Aurangabad City and complainant resided at Bhadravati and therefore,  the District Consumer Forum below  has   no territorial jurisdiction. The dealer of the vehicle  namely Vasan Automotive  Pvt. Ltd., Aurangabad  is not joined   as a  party to  the complaint as required. The vehicle has been seized  in accordance  with law. It is also submitted that  the  appellant  has not  adopted  unfair trade practice  or rendered deficient  service  to the respondent, as the respondent  committed  default  in payment of installment of finance,  the vehicle  has been seized  as per terms  and conditions  of the agreement.  Hence, the O.P./appellant had  prayed that  complaint may be dismissed.

5.         The Forum below after hearing  both the parties  and considering  evidence  brought  on record  held  under impugned  order that  the  appellant seized  the vehicle without  giving  prior  notice  to the respondent though  the notice  was required  as per  clause No. 18 of the agreement and therefore, seizure  of the vehicle  is not  in accordance with  terms and conditions of the agreement.  The Forum also  held in the impugned order that  the vehicle  was purchased  by the respondent  for maintaining  his livelihood by means of self employment and therefore, he is a consumer and  that  the  complaint  falls within   the  territorial jurisdiction of the Forum as the  appellant   carries  its  business  at Nagpur.  Therefore,  the Forum directed the appellant  to return the vehicle to respondent  and to pay compensation  of Rs. 2000/- and  litigation cost or Rs. 1000/- to the  respondent .

6.         As observed above,  the  original O.P. filed  this  appeal against the said  order.

7.         The learned advocate of the appellant  made  same submission  as made before the District Consumer Forum by the appellant. She also relied on the decision in the case of  Jaleshwar Shah Vs. Cholamandalam Investment & Finance Co. Ltd.  decided by the Hon’ble National Commission  in Revision  petition No. 778/2011 as per order dated 06/04/2017. The Hon’ble National  Commission  in that case  found that  number of cheques given by the  complainant  got  dishonoured  and that  there was no evidence  of forcible  repossession of the vehicle and that  impugned order  is based on sound logical reasoning, Therefore, there is no  illegality, irregularity  or jurisdictional error  in the order  passed by the State Commission by which appeal was allowed and  order  passed by the District Consumer Forum, in consumer complaint  is set aside.

            The learned advocate of the appellant  therefore, requested that  as the impugned order is  passed without appreciating  properly the above  defence  raised by the appellant  before it, the  impugned order may be set aside and complaint may be dismissed.

8.         On the other hand, the learned advocate of the respondent  supported the impugned order &  relied on the decisions  in the following cases.

i.          Tata Motors Ltd. Vs. Shivprasad Shreekrishna Varma, decided  by the Learned State Commission, Circuit Bench, Nagpur in first appeal No. A/09/361 as per order dated 11/04/2017.

ii.          Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi, III (2007) CPJ 161 (NC).

iii.         ABN Amro Bank Vs. Sangeet Srivastava, II (2007) CPJ 269 (NC).

Mahindra & Mahindra Limited Vs. Ranvijay Singh & others, III(2008) CPJ 216

            Thus, placing  reliance on the said decisions,  the learned advocate of the respondent submitted that there is no reason  to interfere in appeal with  impugned order. Hence, he requested that  appeal may be dismissed.

9.         We have perused  the entire record and proceedings of the appeal. The clause No. 18 of the agreement  entered into both the parties provides that  in case of default  committed by the borrower(respondent), the lender(appellant)  by notice in writing to the obligors  declare the  loan to be immediately due and payable  and forthwith recall the loan together with all interests and other  monies  payable  by the obligors  pursuant to this loan agreement and in default of such payment, enforce the charge created in terms of this loan agreement. Moreover, the lender shall be  entitled  to  all times to take possession, seize,  recover, appoint  a receiver/manager, remove the asset  from its place of standing  and also be entitled on such terms as may be deemed fit by the lender, without  the intervention of court or authority and sell the same.

10.       Thus, clause  No.18 of the agreement  binds the appellant to issue notice to the respondent  declaring  the amount due  from the respondent  and after service of notice to seize the vehicle and sell it. However, no prior  notice was  served to the respondent  by the appellant. No explanation  is given for not serving notice. Even  reply of the appellant  filed before the District Consumer Forum is also not clear to the effect that  prior  notice was  duly served to the respondent as required as per agreement. Therefore, there is violation  of the material conditions of the agreement  on the part of the appellant  and thus vehicle was seized  in violation of the above material  condition of the agreement and it constitutes  deficiency in service on the part of the appellant.

11.       Admittedly, there were some installments were dues from the respondent at the time of seizure of the vehicle . However, it is not exempt  from procure service of notice to the respondent  so that  he will be able to pay the amount as per  that notice and avoid the seizure of the vehicle.

12.       We also find that there is no evidence to show that the respondent  purchased  the  vehicle  purely  for commercial purpose i.e for earning  profit. He purchased  the vehicle  for maintaining livelihood  of  himself  and  his  family members by way of self employment. Hence, the  respondent  falls  within the definition  of consumer given in the section 2(I)((d) of the Consumer Protection Act, 1986.

13.       Moreover,  admittedly the  finance  was obtained  by the respondent  from the appellant  from its office of  Nagpur and therefore, the District Consumer Forum, Nagpur  has territorial jurisdiction  to entertain  and decide  the complaint.

14        So far as  condition about the existence of arbitration  clause  of agreement, it is well settled  law that  despite  of the clause  in the agreement  about arbitration , the District Consumer Forum has got  jurisdiction to decide the complaint  in as much as  the remedy  provided  by the Consumer Protection Act,1986 is in addition  to other remedy  available under any other  law for time being in force.  We also find that  aforesaid  decisions  relied by the appellant’s advocate  are not applicable  to the present case  since  in the present case we find that  the seizure of the  vehicle without  prior notice is in violation of the agreement and  there was no other  explanation  before the District Consumer Forum. Therefore,  the decision  of the said  cases are  of no assistance  to the appellant  in the  present  case. We are of  thus considered view that  the District Consumer Forum,  has  properly considered the  evidence brought on record and reached to correct  conclusion and there is no  reason to interfere with it   in this appeal. Hence,  it deserves to be dismissed.

ORDER

i.          The appeal is dismissed with cost of Rs. 5000/-.

ii.          The appellant shall pay said cost of Rs. 5000/- of appeal to the respondent  within one month from the date of receipt of copy  of the order.

iii.         Copy of order be furnished to both the parties, free of cost.