29.01.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred by the OPs assailing the judgment and order dt. 21.5.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Bankura in Complaint Case No. 44 of 2012, directing the OPs to pay to the Complainant Rs. 50,000/- as compensation for loss of business and Rs. 5,000/- as cost within 10 days from the date of the order, failing which interest @ 9% p.a. shall accrue on the said amount. The OPs were also directed to not charge any amount on the Complainant for the period from 10.7.2012 to 31.5.2013 and to supply one copy of the Agreement dt. 26.11.2010 to the Complainant. The OPs were further directed to return the re-possessed vehicle to the Complainant within 7 days from the date of the payment by the Complainant by 7.6.2013 of Rs. 32,424/- representing the outstanding dues upto 18th instalment.
The facts, leading to the present controversy, are, in short, that the Respondent/Complainant obtained loan of Rs. 2,20,000/- from the Appellants/OPs against Loan-cum-Hypothecation Agreement for purchase of one LMV Van of TATA-make (Registration No. WB-68H-6324) with the condition of repayment of the same by 47 instalments of EMI of Rs. 6,735/- each for the transportation purpose for ‘maintenance of the family’. But after repayment of Rs. 1,75,466/-, that too not at the rate of EMI, the Respondent/Complainant started defaulting in repayment of the EMIs and other related dues. Following such default the Appellants/OPs issued a Default Notice dt. 24.4.2012 to the Respondent/Complainant asking him to repay the outstanding dues within April, 2012, in response to which the Respondent/Complainant repaid only Rs. 4,500/- out of Rs. 35,000/- as was due on the said date of the Notice, but could not repay the balance amount due to illness. Then the Appellants/OPs re-possessed the vehicle on 10.7.2012 after handing over the Seizure Receipt to the driver concerned. After such re-possession the Appellants/OPs further requested the Respondent/Complainant, by their letter dt. 18.7.2012, for liquidating the outstanding dues of Rs. 67,375/- , as stood outstanding on that date, within 7 days from the date of receipt of the said Notice, but the Respondent/Complainant did not respond to. Rather, the Respondent/Complainant filed the Complaint concerned before the Ld. District Forum, which passed the impugned judgment and order in the manner aforesaid. Aggrieved by such order the Ops have preferred the instant Appeal.
The Ld. Advocate for the Appellants/OPs in the very beginning submits that the Ld. District Forum committed error in law in entertaining the Complaint ignoring the fact that the vehicle in question was purchased for ‘transportation business’ as was averred in Paragraph-2 of the Complaint but without any averment to the effect that the transportation-business in question was for the purpose of ‘self-employment’ to bring the case within the purview of Explanation as appended to Section 2(1)(d) of the Consumer Protection Act, 1986 and hence, the case was beyond the jurisdiction of the Consumer Fora, the Complaint being not a ‘Consumer’ under the Act.
The Ld. Advocate further submits that re-possession of the vehicle in question is within the terms and conditions of the Loan-cum-Hypothecation Agreement in question, Clause 6(b) of which authorizes the Appellants/Ops for re-possession of the hypothecated assets in case of default by the borrower in re-payment of the loan amount. In this connection, the Ld. Advocate has relied on the following decisions of the Hon’ble National Commission.
- Ram Pal Singh Vs. General Manager, Sri Ram Transport & Ors., reported in 2013 (1) CPR 351 (NC);
- Surendra Kumar Sahoo Vs. Indusind Bank Ltd., reported in IV (2012) CPJ 322 (NC).
wherein it was held that the financier, as were the Appellants/OPs herein, has legal right to re-possess the hypothecated vehicle in case of default by the borrower in repayment of the loan in question.
The Ld. Advocate also submits that the re-possession of the vehicle was done lawfully after handing over the proper Seizure Receipt to the driver concerned and without applying any force as the Respondent/Complainant alleged without any support of documentary evidence, let alone the copy of General Diary with the concerned police station.
The Ld. Advocate finally submits that in view of the submission so put forward, the instant Appeal should be allowed, the impugned judgment and order be set aside and the Complaint be dismissed.
The Ld. Advocate for the Respondent/Complainant, resisting the aforesaid argument of the Appellants/OPs, submits that the transport business in question was the only source of earning livelihood of the family of the Respondent/ Complainant and hence, the case concerned comes within the jurisdiction of the Consumer Fora.
The Ld. Advocate further submits that the Respondent/Complainant has already repaid Rs. 1,75,466/- out of the total amount of Rs. 2,20,000/- till the month preceding the month of re-possession although no payment-schedule was handed over by the Appellants/OPs, implying thereby that the Respondent/ Complainant was not a wilful defaulter and that the default in payment of EMIs as alleged was beyond the control of the Respondent/Complainant as the Respondent/ Complainant fell ill meanwhile.
The Ld. Advocate finally submits that despite repayment of substantial amount of loan, the re-possession by force of the vehicle in question without allowing sufficient time to repay the outstanding amount of loan constitutes gross deficiency in service on the part of the Appellants/OPs and hence, the instant Appeal should be dismissed and the impugned judgment and order be sustained.
We have heard both the sides, considered their rival submissions and perused the materials on records.
Clause 6(b) of the ‘Loan-cum-Hypothecation Agreement’, duly signed by the Respondent/Complainant, his guarantor and the representative of the Appellants/OPs, as available on records, demonstrates that the Appellants/OPs have right to re-possess the asset, as is the vehicle in the present case, even without serving notice to the borrower in the event of borrower’s committing any act of default, as has taken place in the case on hand. It is also revealed from the Default-Notice dt. 24.4.2012 issued by the Appellants/Ops to the Respondent/Complainant that the Appellants/OPs issued Notice upon the Respondent/Complainant asking for repayment of the outstanding loan amount before re-possession on 10.7.2012 despite the Loan-cum-Hypothecation Agreement containing no pre-condition for issuance of Notice before re-possession for default in payment of the loan as mentioned hereinbefore.
Although in the Petition of Complaint there is an averment to the effect of ‘transportation business’, but there is no averment in the Petition of Complaint to the effect that the transportation business in question was for the purpose of ‘self-employment’ as required for the Complaint in question to come within the definition of ‘Consumer’ under the Consumer Protection Act, 1986.
Also, in the materials on records there is no documentary evidence in support of the allegation by the Respondent/Complainant about the forceful re-possession of the vehicle in question.
It is well-settled principle of law that under Hire-purchase Agreement it is the financier who is the owner of the vehicle and the person who takes the loan retains the vehicle as a bailee/trustee and, therefore, taking possession of the vehicle on the ground of non-payment of instalments of loan as per terms and conditions of the Agreement is a legal right of the financier, i.e. the Appellants/OPs herein. In this connection, reliance is placed on a decision of the Hon’ble Supreme Court in Surya Pal Singh Vs. Siddha Vinayak Motors, reported in III 2012 CPJ 4 (SC), which was followed by the Hon’ble National Commission in Ram Pal Singh Vs. General Manager, Sri Ram Transport, and Surendra Kumar Sahoo Vs. Indusind Bank Ltd. (supra) as relied upon by the Ld. Advocate for the Appellants/OPs.
On the above facts and evidence on records and also respectfully following the decisions of the Hon’ble Supreme Court and the Hon’ble National Commission, as referred to hereinbefore, we are unable to agree with the conclusion of the Ld. District Forum in the impugned judgment and order, which appears to have been passed without considering the settled principle of law in this matter and the evidence on records.
Consequently, the Appeal is allowed. The impugned judgment and order is set aside and the Complaint is dismissed. No order as to costs.
