30.12.2015
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
The instant appeal under Section 15 of the C. P. Act, 1986 has been filed by the Appellant/O.P. challenging the judgment and order No. 21 dated 30.12.2013 passed by the Ld. District Forum, Hooghly in Consumer Complaint Case No. 27 of 2012 allowing the complaint on contest against the Appellant/O.P. with cost. The Appellant/O.P., in the impugned order, was directed to pay to the Respondent/Complainant :
- Rs.5,000/- as litigation cost.
- Rs.1,46,131/- towards reimbursement for repairing the vehicle in question.
- Rs.1,62,000/- for financial loss and damage sustained by the Respondent/Complainant within one month from the date of the impugned judgment and order, failing which interest @ 9% p.a. will accrue on the total amount of Rs.3,13,131/- till full realization.
The facts of the case, in short, are that the Respondent/Complainant entered into a hire purchase agreement with the Appellant/O.P. for purchasing a heavy goods vehicle of make and specification as detailed in para 2 of the complaint petition for carrying on her business.
The possession of the aforesaid vehicle, was handed over to the Respondent/Complainant by the Appellant/O.P. on condition that the Respondent/Complainant shall pay an amount of Rs.5,10,000/- for the purchase in periodical installment.
The Respondent/Complainant paid Rs.4,78,206/- through installments in favour of the Appellant/O.P. towards the purchase price. The vehicle which was insured against any type of loss or damage with Bajaj Allianz Company, met with an accident when repayment of an amount of Rs.31,794/- was yet to be made. The vehicle was repaired by the Respondent/Complainant of her own, but the insurance claim of Rs.1,46,131/-, settled by the said Insurance Company, was paid to the Appellant/O.P. and not to the Respondent/Complainant.
Repeated requests to reimburse the settled insurance compensation amount to the Respondent/Complainant were not heeded to by the Appellant/O.P. The Respondent/Complainant, because of his financial constraint failed to pay off the balance installments. This allegedly led the Appellant/O.P. to engage musclemen who apprehended the vehicle and seized the same while it was on its way to Siliguri from Polba, Hooghly loaded with detergent, being the commodity under transport.
The Appellant/O.P. did not release the vehicle on repeated requests from the Respondent/Complainant, even the letter of request dated 13.10.2011 of the Ld. Advocate on behalf of the Respondent/Complainant for release of the seized vehicle did not evoke the desired response from the Appellant/O.P.
The Respondent/Complainant, being aggrieved with such allegedly illegal seizure of the vehicle, filed before the Ld. District Forum the aforementioned complaint case which the impugned judgment and order relates to.
Heard the Ld. Advocates for both sides. The Ld. Advocate on behalf of the Appellant/O.P. submitted that the vehicle in question faced an accident. The insurance claim was received by the Appellant/O.P. Respondent/Complainant wanted to adjust the arrear installments against the claim settled by the Insurance Company. The Ld. Advocate, while referring to para 2 of the complaint and the vehicle (page 37), pointed out that the hire purchase agreement was related to the heavy goods vehicle and the complaint was devoid of any averment towards the vehicle being used for earning livelihood by means of self-employment by the Respondent/Complainant.
The vehicle in question was repossessed from Berhampore, Murshidabad because of the Respondent/Complainant being defaulter in repayment of the outstanding loan amount. The place of occurrence being in the District of Murshidabad, the D.C.D.R.F., Hooghly, as the Ld. Advocate contended, was barred to try the case for its not having the territorial jurisdiction. Moreover, the vehicle, “a heavy one”, as the Ld. Advocate further contended, being loaded with detergent to be transported to Siliguri from Polba, Hooghly, the commercial use of the same was indicated. Further, use of musclemen for repossessing the vehicle, as alleged, also did not stand to reason as no FIR was lodged by the Respondent/Complainant with the police station to that effect.
The Ld. Advocate drew the notice of the Bench to page 13, para 3 of the impugned order which recorded a Civil Suit bearing No. 8 of 2012 pending before the Civil Judge, Senior Division, 1st Court, Hooghly on the instant issue. The Ld. Advocate went on to cite the observation of Hon’ble National Commission in the following cases.
- 2014(4) CPR 357 (NC) [M/s. Novous Abasan Private Ltd. – vs. – Dakshineswar Saptarshi Welfare Society, & Anr. – where the Hon’ble National Commission observed that the complaint pending before the State Commission should remain stayed during pendency of the civil suit.
- 2014(3) CPR 443 (NC) [Rajeev Bhatia – vs. – Indusind Bank Ltd. & Ors. – where the Hon’ble National Commission dismissed the revision petition recording therein non-availability of any evidence towards engaging of Goondas for repossessing the vehicle.
The Hon’ble National Commission in the same order referred to the observation of the Hon’ble Apex Court reported in Suryapal Singh – vs. – Siddha Vinayak Motors & Anr. reported in III (2012) CPJ 4 (SC) wherein the Hon’ble Apex Court was pleased to hold “under the Hire Purchase Agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee/trustee, therefore, taking possession of the vehicle on the ground of non-payment of instalment has always been upheld to be a legal right of the financier”.
- 2013(1) CPR 351 (NC) [Ram Pal Singh – vs. – General Manager, Sri Ram Transport] – where the Hon’ble National Commission dismissed the revision petition observing that financier can repossess vehicle in case of default in repayment of loan amount.
- 2013 (2) CPR 448 (NC) [Suresh Baban Gadekar – vs. – ICICI Bank & Ors.] – where the Hon’ble National Commission observed that complaint will not be maintainable in respect of vehicle which is being used for commercial purpose.
The Ld. Advocate, in the circumstances, narrated above, and also in view of the above observations of the Hon’ble National Commission, prayed for setting aside the impugned judgment and order.
The Ld. Advocate for the Respondent/Complainant submitted that the point of using heavy vehicle in question for commercial purpose was not agitated earlier. So, this new point cannot be considered at this appellate stage. It was pointed out that the vehicle being seized at Berhampore, Murshidabad point which is located enroute Polba, Hooghly and Siliguri, it was clear that the cause of action originated at Hooghly which is very well under the territorial jurisdiction of the Ld. District Forum, Hooghly. It was also pointed out that the vehicle was loaded with detergent to be transported to the destination at Siliguri.
The Ld. Advocate continued that the vehicle which was allegedly seized unlawfully under duress by the musclemen engaged by the Appellant/O.P., since not released in spite of repeated requests both verbally and by way of legal communication through Ld. Advocate of the Respondent/Complainant, the business of the Respondent/Complainant faced serious setback and the Respondent/Complainant had to suffer immense loss due to such deficiency in service and unlawful trade practice done upon him by the Appellant/O.P.
The non-application of force for unlawful seizing of vehicle and non-engagement of musclemen for forceful recovery or seizing of vehicle, as has been contended in the instant argument by the Appellant/O.P., was never averred by the Appellant/O.P. in course of hearing of the complaint before the Ld. District Forum, not even in the W. V. submitted by the Appellant/O.P.
The Ld. advocate went on to say that the Appellant/O.P. wilfully skipped the step of calling upon borrower to pay the outstanding dues as provided under 6(a) at running page 63 and resorted to the provision of 6(b) in the said running page towards repossessing the vehicle. The Appellant/O.P., as the Ld. Advocate contended, did not respond to the Advocate’s Notice, but unlawfully seized the vehicle under duress resulting in serious setback to the business which eventually put the Respondent/Complainant in monetary loss leading to mental agony and harassment.
The Ld. Advocate prayed for returning the vehicle in addition to what has been ordered by the Ld. District Forum and concluded saying that the Appellant/O.P. is entitled to get EMIs only.
Perused the papers on record. It reveals that the Appellant/O.P. has its recorded address in the district of Hooghly.
The vital point of maintainability of the complaint skipped the notice of the Ld. District Forum. The Respondent/Complainant in its complaint, at para 2, running page 21 admitted that the heavy goods vehicle of 6 cylinders, manufactured by Ashok Leyland Limited registered with the Motor Vehicle Registering Authority of 24 Parganas (North) at Barasat under No. WB-25B-9344, was used for carrying her business.
Perused the record issued by the State Transport Authority, West Bengal under Sl. No. 021877 dated 09.04.2010 issued in respect of the above-mentioned vehicle wherein the type of the vehicle was seen to be recorded as “heavy goods vehicle” which are normally used for carrying on transport business.
Further, the vehicle at the time of its alleged seizure or repossession, was carrying detergent which was to deliver to any commercial establishment at Siliguri. This also reveals that the vehicle used to be utilized for carrying on transport business for commercial purpose. Moreover, on careful perusal of the complaint, it reveals that the complaint was devoid of any averment as to the use of the vehicle for earning livelihood by means of self-employment to fall within the exclusionary explanation appended to Section 2(1)(d) of the C. P. Act, 1986. Therefore, we are unable to consider the claim of the use of the vehicle for non-commercial purpose as well as being a consumer of the Respondent/Complainant favourably under Section 2(1)(d) of the C. P. Act, 1986, as explained.
It is no point that the use of vehicle for commercial purposes cannot be mentioned at the time of appeal hearing since the matter relates to the law point. We place our reliance on the settled fact that the matter relating to law point can be heard at any stage of hearing by any trial court or forum to ensure that it does not exceed its jurisdiction. In this context, we may place our reliance to the decision of the Hon’ble Apex Court reported in 2013 (3) CPR 514 (SC) [Dr. Jagmittar Sain Bhagat – vs. – Dir. Health Services, Haryana & Ors.] observed “law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter”.
In view of above, we are of the view that the instant case does not come under the purview of the C. P. Act, 1986.
In view of our such conclusion in the instant case, we refrain ourselves from offering any view on other issues relating to the case.
Hence, ordered that the appeal is allowed on contest. Impugned judgment and order is set aside and the complaint is dismissed. We make no order as to cost.
