Punjab

Tarn Taran

RBT/CC/17/424

Roshan - Complainant(s)

Versus

ShriramTransport Finance Co. - Opp.Party(s)

Rajesh Bhatia

26 May 2022

ORDER

 

Shri Roshan son of Sh. Munshi, aged about 40 years resident of V.P.O Kale Ghanupur, near Tower, Chheharta, Amritsar 98143-64299.

                                                                             …Complainant

                                                Versus

Shriram Transport Finance Company Ltd. Through its Manager/ Authorised Officer, 100 Feet Road, Amritsar.

                                                                             …Opposite Party

 

Complaint Under Section 12 and 13 of the Consumer Protection Act.

Quorum:               Sh. Charanjit Singh, President

Ms. NidhiVerma, Member

For Complainant                     Sh. Rajesh Bhatia Advocate

For Opposite Party                           Sh. Munish Menon Advocate

 

PER:

Charanjit Singh, President;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section  12 and 13 against the opposite party on the allegations that the complainant is a self employed person and is owner of truck bearing registration No. PB04-K-9604. The entire family of the complainant is dependant upon the earning of the complainant on the basis of aforesaid truck. The aforesaid second hand truck was purchased by the complainant from its previous owner for more than Rs. 4,00,000/- and for the purchase of the aforesaid truck, the complainant had obtained a loan of Rs. 1,73,890/- from the opposite party in the year 2011 and rest of the amount as paid by the complainant from his own pocket. Insurance and other charges of the said truck were also borne by the complainant. After the purchase of the said truck, the complainant had been using said truck to earn his livelihood and he had been paying the installments of the said truck to the opposite party honestly till 15.7.2015 and till then he had already paid approximately 3,00,000/- to the opposite party through various installments against proper receipts. In the year 2016, the opposite party took the custody of the said truck from the complainant illegally and forcibly without any kind of prior notice. The complainant immediately approached the opposite party and requested to release the said truck in his favour but the opposite party started demanding Rs. 1,00,000/- in one stroke to release the truck in question in favour of the complainant. The complainant requested the opposite party that he is not liable to pay such huge amount to them, as he has already made major part of the loan and he further requested the opposite party to provide true and correct statement of account of his loan, but they refused to provide the same. Rather they told the complainant that they will sell the truck in question and after selling the said truck and adjusting the remaining loan amount, the rest of the sale proceed shall be refunded to the complainant, but till date neither the truck in question has been handed over to the complainant nor the remaining sale proceed has been refunded to him. Moreover, the truck in question is till lying with them but they are not handing over the same to the complainant. The opposite party had obtained four blank signed cheques of the complainant, drawn on Oriental Bank of Commerce, for security purposes and at the time of taking the forcible custody of the truck in question, the opposite party had agreed to hand over the said cheques to the complainant, but till date the said cheques have also not been handed over to the complainant. The truck in question is in illegal custody of the opposite party till date and they are continuously threatening to alienate the same in an illegal manner. The aforesaid facts speak in volume that there is gross deficiency in service on the part of the opposite party. The complainant is suffering a great financial loss, mental tension, pain, agony, harassment due to the illegal damages and deficiency in service on account of opposite party. The complainant is permanently suffering from great financial crises due to illegal detention of the said truck by the opposite party and as such he is entitled to be compensated by the opposite party. The complainant has prayed the following reliefs:-

(a)     The opposite party may kindly be restrained from alienating the truck bearing No. PB04-K-9604 in any manner whatsoever.

(b)     The opposite party may kindly be directed to provide the true and correct statement of account of loan of the complainant and all the loan documents.

(c)      The opposite party may kindly be directed to hand over four blank signed cheques of the complainant which are drawn on Oriental Bank of Commerce.

(d)     The compensation and litigation expenses to the tune of Rs. 10,000/- may kindly be awarded to the complainant.

3        After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version and contested the complaint by taking preliminary objections that no cause of action has arisen to the complainant to file the present complaint. As such, the present complaint is liable to be dismissed. The complainant approached the opposite party for financial assistance or the purchase of commercial vehicle TATA SE 1612 FBT, which was approved by the opposite party vide loan agreement No. AMRITO502270001 for the amount or Rs. 2,85,000/-. At the time of availing said financial assistance executed Loan cum hypothecation agreement on 28.2.2015 and agreed to pay back the said amount of Rs. 2,85,000/- in equal installments alongwith interest in 47 installments commencing from 5.4.2015 payable till 5.2.20219, the total interest amount being Rs. 2,21,947/- and the same was payable by the complainant in the monthly installments as per the schedule agreed to by the complainant at the time of execution of loan documents and copy of which was also given to the complainant. Accordingly, on account of the said financial assistance the complainant purchased said vehicle which was registered with the transport authorities with registration No. PB04-K-9604 and as per the said agreement the same was hypothecated with the opposite party. The complainant also availed other financial assistance from the opposite party from time to time to meet expenses in respect to the said vehicle as shown in the account statement attached. The complainant never maintained the financial discipline regarding all the finance facilities and never made the payments of the installments to the opposite party as per the schedule but the payments were made by him as per his sweet will which will be evident from the account statement and several times committed default in the timely payment of installments and several times committed default in the timely payment of installments and several time requests had been made to the complainant to make the payment of the defaulting amount but to no effect. The lapse on the part of the complainant in maintaining the financial discipline and the demands raised by the opposite party will be evident from the account statement. The complainant was called upon several times to comply with the terms and conditions of the agreements he had executed with the opposite party. As per terms and conditions of the hypothecation agreement dated 28.2.2015 the complainant was liable to pay the installments for the repayment of the loan amount as per the schedule. As per terms and conditions of the said agreement the opposite party was at liberty to inspect view and examine the state and condition of the vehicle(s) and its documents. Since the complainant had failed to make the payment of the installments in the stipulated time and hence has committed default which amounts to violation of terms and conditions of the said agreements, as such, he is also liable to pay penal interest on the defaulted amount from time to time. On account of continuous default on the part of the complainant and since the complainant was unable to clear the defaulting amount, the complainant surrendered the vehicle in question voluntarily and also gave his consent to sale the same for the recovery of defaulting amount. The said vehicle was sold by the opposite party on 10.2.2017 for the sum of Rs. 95,000/-. Since the present complaint has become infructuous, the present complaint is liable to be dismissed.  The complainant does not fall within the definition of consumer as defined in Consumer protection Act, 1986 as amended up to date. The finance facility is being availed by the complainant for purchasing vehicle in question to be used for commercial purpose. The complainant is running a business of Transport Company. Moreover the conduct of the complainant will be evident from the fact that the complainant is defaulter in payment of the installments and has failed to adhere to the terms and conditions of the loan agreement. As such, since the complainant has not come to this Commission with clean hands and also does not fall within the definition of consumer, the present complaint is liable to be dismissed. On merits, it was pleaded that the complainant cannot take plea of earning his livelihood from the vehicle in question since the complainant is running a transport company and owns several trucks and the same are being used for commercial purpose. Mere perusal of the account statement will reveal that the complainant has paid only four times to the opposite party and that too not according to the schedule payment. It is the complainant who on account of his inability to make the payment of installments to the opposite party surrendered the said vehicle to the opposite party voluntarily and also gave his consent for its sale for the recovery of defaulting amount. Consequently, the said vehicle was sold by the opposite party for the sum of Rs. 95,000/- on 10.2.2017. The opposite party had provided true and correct statement of account of his loan to the complainant and requested him to make the payment of the defaulting amount but he complainant never bothered to pay the same hence causing financial loss to the opposite party. As per terms and conditions of the hypothecation agreement the vehicle was surrendered by the borrower to the opposite party and in case of his failure to clear outstanding loan amount, the opposite party sells the financed vehicle with the consent of the borrower and adjust the amount realized in the loan account and if the realized amount is short of the outstanding amount than the balance amount is liable to be paid by the borrower. In the present case also since the complainant has failed to clear outstanding loan amount and has not maintained the financial discipline as will be evident from the statement of account the opposite party is taking action as per terms and conditions of the hypothecation agreement that the complainant had executed in favour of the opposite party. Since no such cheques were ever obtained by the opposite party from the complainant as alleged the question of returning the same does not arise. The opposite party denied the other contents of the complaint and prayed for dismissal of the same.  

4        To prove his case, the complainant has tendered in evidence his affidavit Ex. C-1 and closed the evidence. On the other hands, Ld. Counsel for the opposite party tendered n evidence affidavit of Sh. Harsh Kapoor branch Manager Ex. OP1/1, Harsh Kapoor Ex. OP1/A, copy of account statement Ex. OP1 and closed the evidence.

5        We have heard the Ld. counsel for the parties and have gone through the record on the file.

6        Ld. counsel for the complainant contended that the complainant is a self employed person and is owner of truck bearing registration No. PB04-K-9604. The entire family of the complainant is dependant upon the earning of the complainant on the basis of aforesaid truck. The aforesaid second hand truck was purchased by the complainant from its previous owner for more than Rs. 4,00,000/- and for the purchase of the aforesaid truck, the complainant had obtained a loan of Rs. 1,73,890/- from the opposite party in the year 2011 and rest of the amount as paid by the complainant from his own pocket. Insurance and other charges of the said truck were also borne by the complainant. He further contended that after the purchase of the said truck, the complainant had been using said truck to earn his livelihood and he had been paying the installments of the said truck to the opposite party honestly till 15.7.2015 and till then he had already paid approximately 3,00,000/- to the opposite party through various installments against proper receipts. In the year 2016, the opposite party took the custody of the said truck from the complainant illegally and forcibly without any kind of prior notice. He further contended that the complainant immediately approached the opposite party and requested to release the said truck in his favour but the opposite party started demanding Rs. 1,00,000/- in one stroke to release the truck in question in favour of the complainant. The complainant requested the opposite party that he is not liable to pay such huge amount to them, as he has already made major part of the loan and he further requested the opposite party to provide true and correct statement of account of his loan, but they refused to provide the same. Rather they told the complainant that they will sell the truck in question and after selling the said truck and adjusting the remaining loan amount, the rest of the sale proceed shall be refunded to the complainant, but till date neither the truck in question has been handed over to the complainant nor the remaining sale proceed has been refunded to him. Moreover, the truck in question is till lying with them but they are not handing over the same to the complainant. The opposite party had obtained four blank signed cheques of the complainant, drawn on Oriental Bank of Commerce, for security purposes and at the time of taking the forcible custody of the truck in question, the opposite party had agreed to hand over the said cheques to the complainant, but till date the said cheques have also not been handed over to the complainant. He further contended that the truck in question is in illegal custody of the opposite party till date and they are continuously threatening to alienate the same in an illegal manner and prayed that the present complaint may be allowed. On the other hands, Ld. counsel for the opposite party contended that the complainant approached the opposite party for financial assistance or the purchase of commercial vehicle TATA SE 1612 FBT, which was approved by the opposite party vide loan agreement No. AMRITO502270001 for the amount or Rs. 2,85,000/-. He further contended that at the time of availing said financial assistance executed Loan cum hypothecation agreement on 28.2.2015 and agreed to pay back the said amount of Rs. 2,85,000/- in equal installments alongwith interest in 47 installments commencing from 5.4.2015 payable till 5.2.20219, the total interest amount being Rs. 2,21,947/- and the same was payable by the complainant in the monthly installments as per the schedule agreed to by the complainant at the time of execution of loan documents and copy of which was also given to the complainant. Accordingly, on account of the said financial assistance the complainant purchased said vehicle which was registered with the transport authorities with registration No. PB04-K-9604 and as per the said agreement the same was hypothecated with the opposite party. He further contended that the complainant also availed other financial assistance from the opposite party from time to time to meet expenses in respect to the said vehicle as shown in the account statement attached. The complainant never maintained the financial discipline regarding all the finance facilities and never made the payments of the installments to the opposite party as per the schedule but the payments were made by him as per his sweet will which will be evident from the account statement and several times committed default in the timely payment of installments and several times committed default in the timely payment of installments and several time requests had been made to the complainant to make the payment of the defaulting amount but to no effect. The lapse on the part of the complainant in maintaining the financial discipline and the demands raised by the opposite party will be evident from the account statement. He further contended that the complainant was called upon several times to comply with the terms and conditions of the agreements he had executed with the opposite party. As per terms and conditions of the hypothecation agreement dated 28.2.2015 the complainant was liable to pay the installments for the repayment of the loan amount as per the schedule. As per terms and conditions of the said agreement the opposite party was at liberty to inspect view and examine the state and condition of the vehicle(s) and its documents. Since the complainant had failed to make the payment of the installments in the stipulated time and hence has committed default which amounts to violation of terms and conditions of the said agreements, as such, he is also liable to pay penal interest on the defaulted amount from time to time. On account of continuous default on the part of the complainant and since the complainant was unable to clear the defaulting amount, the complainant surrendered the vehicle in question voluntarily and also gave his consent to sell the same for the recovery of defaulting amount. The said vehicle was sold by the opposite party on 10.2.2017 for the sum of Rs. 95,000/-. Since the present complaint has become infructuous, the present complaint is liable to be dismissed.  The complainant does not fall within the definition of consumer as defined in Consumer protection Act, 1986 as amended up to date. The finance facility is being availed by the complainant for purchasing vehicle in question to be used for commercial purpose. The complainant is running a business of Transport Company. Moreover the conduct of the complainant will be evident from the fact that the complainant is defaulter in payment of the installments and has failed to adhere to the terms and conditions of the loan agreement. As such, since the complainant has not come to this Commission with clean hands and also does not fall within the definition of consumer, the present complaint is liable to be dismissed. On merits, it was pleaded that the complainant cannot take plea of earning his livelihood from the vehicle in question since the complainant is running a transport company and owns several trucks and the same are being used for commercial purpose. Mere perusal of the account statement will reveal that the complainant has paid only four times to the opposite party and that too not according to the schedule payment. It is the complainant who on account of his inability to make the payment of installments to the opposite party surrendered the said vehicle to the opposite party voluntarily and also gave his consent for its sale for the recovery of defaulting amount. Consequently, the said vehicle was sold by the opposite party for the sum of Rs. 95,000/- on 10.2.2017. The opposite party had provided true and correct statement of account of his loan to the complainant and requested him to make the payment of the defaulting amount but he complainant never bothered to pay the same hence causing financial loss to the opposite party. As per terms and conditions of the hypothecation agreement the vehicle was surrendered by the borrower to the opposite party and in case of his failure to clear outstanding loan amount, the opposite party sells the financed vehicle with the consent of the borrower and adjust the amount realized in the loan account and if the realized amount is short of the outstanding amount than the balance amount is liable to be paid by the borrower. In the present case also since the complainant has failed to clear outstanding loan amount and has not maintained the financial discipline as will be evident from the statement of account the opposite party is taking action as per terms and conditions of the hypothecation agreement that the complainant had executed in favour of the opposite party.  Ld. counsel for the opposite party contended that the present complaint is not maintainable as the matter involved in the present complaint is regarding hire purchase.  

7        From the appreciation of the facts and circumstances of the case, the point involved in the present case is that the vehicle in question is financed with the opposite parties from whom the complainant has got sanctioned a loan and a hire purchase agreement was executed between complainant and opposite parties, as such, the complainant is not a consumer of the opposite party. Reliance in this connection has been placed upon Tata Motors Finance Ltd. And Anr. Vs. Vikas Nanda & Ors. 2011(2) CPC 217 of the Hon’ble Haryana State Consumer Disputes Redressal Commission wherein it has been held that as the vehicle was purchased under a hire purchase agreement, complainant was not a consumer . Further reliance has been placed upon Parmeswari W/o Ramakrishnana Vs. The General Manager, V.S.T. Service Station, The Branch Manager, Tata Finance Limited and the United India Insurance Company 2010(2) CPC 164 (NC) of the Hon’ble National Commission wherein it has been held that in the case of Hire purchase agreement, the complainant does not become a consumer and therefore, the complaint is not maintainable.

8        In view of the above discussion, we do not find any merit and substance in the complaint and the same is hereby dismissed with no order as to costs. Copy of order will be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

26.05.2022