The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Sriram Transport Finance Company Ltd. having its registered Office at Chennai, O.P No.2 is the Sriram Transport Finance Company Ltd., Bhubaneswar and O.P No.3 is the Branch Manager, Sriram Transport Finance Company Ltd., Balasore Branch, Balasore.

                    2. The case of the Complainant in brief is that the Complainant had borrowed one Truck vide Regd. No.OR-11K-9545 under loan-cum-hypothecation agreement on 13.03.2012 and was paying monthly instalment regularly. But, due to illness of his father on 18.03.2013 followed by major operation, the Complainant could not repay the monthly instalment dues, where the Complainant had spent huge amount for treatment of his father and could not repay the rest instalments due to weak financial condition. The said vehicle is not plying rather kept in the garage for repair. The Company through its agents and local goondas threatened the Complainant on 12.07.2014 to seize the aforesaid vehicle, causing harassment to the Complainant since the Complainant maintains his family members out of income of said Truck. The Complainant has prayed for compensation towards mental agony and litigation cost.

                    3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, jurisdiction, Consumer as well as its cause of action. The O.Ps have further submitted that the relationship between the Complainant and the O.Ps is that of ‘borrower’ and ‘lender’. So the Complainant does not fall within the definition of “Consumer”, as such no Consumer dispute arises. The Complainant has suppressed some material facts, so the O.Ps hereby dispute all the averments in the complaint, since these are not supported by documents. Moreover, loan agreement contains the clause of Arbitration, where all the disputes shall be referred to the sole arbitrator and the said vehicle is a heavy commercial one. As per Section-2(d) (1) (ii), Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment. The words “uses them by himself”, “exclusively for the purpose of earning livelihood” and “by means of self employment” make the intention of legislature abundantly clear that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. As required under law, the Complainant has not prima facie established the existence of any such fact that he was/is not in a position to maintain livelihood and that the truck was his only source of income. The fundamental maxim is that the plaintiffs in equity most come with perfect propriety of conduct, or with clean hands. The Complainant has himself stated in the complaint petition that he could not pay regular installments due to illness of his father from 08.03.2012, which cannot be believed because the account statement annexed herewith would go to show that during that period, he has paid good amount of installments. Thus, extending financial help to a needy person and subsequent demand for recovery cannot be constructed as deficiency of service.  

                    4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) Whether the Complainant is a Consumer under the provision of C.P Act ?

(iii) Whether there is any cause of action to file this case ?

(iv) To what relief the Complainant is entitled for ?

                    5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. But, strangely enough the Complainant did not take part in hearing as he remained absent at the time of hearing of this case. However, it was remanded case from State C.D.R Commission, Odisha, Cuttack. So, there is no argument on behalf of the Complainant. However, his pleading in this case is mentioned earlier. On the other hand, it has been argued on behalf of the O.Ps that the Complainant is not a Consumer as there is a relationship between the Complainant and the O.Ps is that of ‘borrower’ and ‘lender’ and there is a clause of arbitration. There is also no deficiency of service on the part of the O.Ps as extending financial help to a needy person and subsequent demand for recovery cannot be constructed as deficiency of service. It has been also argued that the Complainant has also taken a false plea regarding non-payment of loan amount for illness of his father. According to the Complainant, his father was ill, so he failed to repay the loan amount due, for which the O.Ps through their agents and local goondas threatened the Complainant on 12.07.2014 to seize the vehicle. But, no such substantial evidence is available in the case record. On the other hand, the record shows that on 13.04.2013, the Complainant has paid Rs.25,000/- (Rupees Twenty five thousand) only and on 22.04.2013, he has paid Rs.10,000/- (Rupees Ten thousand) only, which is contrary to the plea of the Complainant regarding his financial problem and failed to pay the loan instalments. Regarding arbitration clause, it is a settled principle that even if there is an arbitration clause, this Forum has no jurisdiction to entertain the case until the final award has been passed. The authority reported in Civil Appeal No.6347 of 2012 in the case of M/s. Micro Hotel P. Ltd. (Vrs.) M/s. Hotel Torrento Limited & Ors., wherein it has been held by the Hon’ble Supreme Court of India that if the repayments are not received as per the scheduled time frame, it will disturb the equilibrium of the financial arrangements of the Corporations. They do not have at their disposal unlimited funds. They have to cater to the needs of the intended borrowers with the available finance. Non-payment of the installment by a defaulter may stand on the way of a deserving borrower getting financial assistance. Similarly the authority reported in 2015(4) CPR-148 (N.C) in the case of Sunny & Ors. (Vrs.) Rajesh Tripathy, wherein it has been held by the Hon’ble National C.D.R Commission, New Delhi that financing and advancement of loan does not fall within purview of facility in connection with banking, transport etc. as mentioned in Section-2(o) of C.P Act and in such circumstances, Complainant does not fall within purview of Consumer. Further, the authority reported in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara (Vrs.) Magma Leasing Ltd., where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that under a hire-purchase transaction, the financer does not render any service within the meaning of Consumer Protection Act, 1986 and the Petitioner is, thus, not a Consumer.

                    6. So, in the circumstances, on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above authorities as discussed earlier, now this Forum come to the conclusion that the Complainant is not a Consumer under provision of Consumer Protection Act, 1986 and this Consumer case is not maintainable, for which the Complainant is not entitled for any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-        

                                                     O R D E R

                        The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without any cost.  

                        Pronounced in the open Forum on this day i.e. the 11th day of January, 2018 given under my Signature & Seal of the Forum.