Case No. CC/ 108/2018

FINAL ORDER/JUDGMENT

Sudeb Mitra, President:-

            The epitome of the complaint case is that on the basis of the application no WMED/GAT/00154 filed by the complainant of this complaint Gurupada Pramanik, the West Bengal Transport Infrastructure Development Corporation Ltd. vide order dtd. 27.02.2016 granted the complainant a sum of Rs- One lakh as subsidy under ‘GATI DHARA’ scheme for purchasing Commercial Passenger/goods vehicle to enable his self-employment                                in the transport service sector.

            This appears that the complt. vide agreement no 5002051458 dtd. 14.06.2016 entered into an agreement with the O.P. of this case to get financial help from the O.P. to earn his livelihood and as a result the O.P. of this complaint provided the complainant a loan of Rs- 3,22,224/- on condition that the complt. shall repay the same within 46 monthly installments of Rs- 10,724/- within a span of time from 11.07.2016 to 11.05.2020, and it was also determined that the installment of Rs- 10,724/- per month must be made within 11^th day of each & every month of the loan repayment period as mentioned above.

            It is contended from the complt’s end that the complainant purchased a light goods vehicle(pick up van) bearing chases no MAT445064GZD17912, Engine no 2751D106DTYS46851 with the financial help of the sole O.P. and got that vehicle registered bearing no WB-33D/0482 in his favour, endorsed by the O.P. as financier.

            It is forthcoming from the complt’s contention that according agreement & schedule of payment of premium without any failure, the complt. went on making payment of installments per month within stipulated date to repay the loan, taken from his end from the O.P. and he continued this practice till 11.02.2018 and in that process made payment of 20 installments of Rs- 2,09,086.44/- paisa though the O.P. hadn’t ever served him the copy of loan agreement.

            The complt. contends by filing this complaint that on 23.09.2017, his pick up van met with an accident at Uluberia and sustained serious damages & the same was kept at Paraj Motor garage entailing the complt. to incur huge expenses for repairing that vehicle. That caused the complt. the financial constraints to pay up the monthly installment payment to neutralise the loan, as agreed with the O.P. who without consideration of the complt’s

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financial embarrassments, without giving any legal notice, repossessed the vehicle of the complainant and in response to complt’s repeated requests for return of the said vehicle, suggested the complt. to pay up installments due from him with next three months advance installment amount of such loan, within first week of June 2018. In second week of June 2018, when complt. made contact with the O.P. with certain amount for installment payment, the O.P. refused to return the vehicle repossessed by it from the complt. The letter sent from the complt’s lawyer yielded no fruitful result and in that process, the complt. sustained irreparable loss and finally the O.P. sold out the vehicle.

            Since the complt. sustained deficiency in service and suffered in irreparably at the arbitrary act of the O.P. who had destroyed the sole source of earning the livelihood of the complt., he has filed this complaint and prays for reliefs as reflected in the prayer portion of the complaint.

            The O.P. filed W.V., denied all the material particulars, contended inter-alia, that this complt. is not maintainable, it lacks cause of action and agitated that since the complt. is a borrower of loan from the O.P., so the complt. can’t be categorized as consumer as per C.P. Act of 1986, specially when complt. was utilizing the vehicle or commercial purpose.

            By filing W.V., the sole O.P. contended further that for obtaining financial assistance from the O.P. the complainant had entered into a “Loan cum Hypothecation cum Guarantee Agreement” with the O.P. on 14.06.2016 at Kharagpur, Paschim Medinipur, vide contact No.5002051458 dated-14.06.2016 with the disbursement date of such financial assistance to him on 14.06.2016, with first installment date on 11.07.2016 with maturity date on 11.05.2020 in respect of the vehicle, as mentioned above.

            It is the specific contention of the O.P. that as per that agreement mode of repayment of such loan of Rs-5,04,020.00/- was determined to be made by 46 installments of Rs-10,724/- and the 47^th installment i.e. is the last installment of repayment of loan was fixed as Rs- 10,716/- to be paid by 11^th day each English calendar month of 47 months.

            The O.P. files W.V. and contended that the complt. was a chronic defaulter of repaying loan by monthly installments and went on paying less than the monthly installments payments as stipulated & finally the O.P. reposed the vehicle on 08.08.2018. This is contended by the O.P. that as per Arbitration award dtd. 20.02.2018 where the complt. didn’t

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attend even getting scope, the O.P. reposed the said vehicle, prepared inventory on that score sent demand notice to the complainant 14.05.2018 after the Arbitration award was passed on 26.04.2018 giving liberty to dispose of the vehicle for realisation/satisfaction of loan. This is the specific contention of the O.P. that as per award of the O.P. sold out the vehicle on public auction on, after sending pre sale notice dtd. 14.05.2018 to the complt. By filing W.V. O.P. has prayed for the dismissal of this complaint.

On the basis of the contentions & counter contentions of both the contesting parties of this complaint, the following issues are framed as points for consideration to reach the conclusive decision of the crux of the problems, issues wise.

ISSUES / POINTS FOR DETERMINATION

1. Is the complainant a consumer as per scopes of Sec 2 (i) (d) ii of the C.P. Act of 1986?
2. Has this Commission/Forum jurisdiction to entertain the instant complaint, as per C.P. Act of 1986?
3. Has the O.P. any deficiency in service, as alleged by the complt. and are they liable in any way?
4. Whether the complainant is entitled to get the relief(s) as prayed for in this complaint?

DECISION WITH REASONS

Issues No. 1 & 2:-

            We at the very outset take up both these two issues for discussion since the result of the determination of the these two issues appear to be deciding factor for determining whether the rest of the issues framed in this complaint need to be discussed or not or deserve to be considered or not.

            The O.P. side is contending categorically that since the complt. had borrowed money/taken financial assistance from the O.P. so, he is a mere borrower & as he had borrowed money to purchase a pick up van to utilize the same for commercial purpose and not for sustenance of life, so he can’t be categorised as a consumer as per C.P. Act 1986.

            This is strongly resisted by the complainant by contending that it was not for commercial purpose but for survival of the complt. he had taken loan and obtained subsidy and it was the sole source of self-employment of the complainant who is therefore none but consumer as per Cl.II Sec.2(i)(d) of the C.P. Act 1986. 

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This is needless to reiterate that that complainant had borrowed money from the financial institute for the purpose of commencing a business by way of self-employment only. Therefore, the burden of proving the contrary shifts upon the O.P. exclusively and the O.P., here in this case, could not discharged the burden that for commercial purpose and not for self-employment or sustenance, the complt. had borrowed money from the O.P.

The O.P. has could not establish that the complt. had purchased the vehicle for giving it to hire/rent or for the resale to earn profit out of that.

In the premises, we feel inclined to hold that the complt. was a consumer of service rendered to the complt. by the O.P. and for that reason and on the basis of the scopes of Sec 2 (i)(d) Cl-ii of the C.P. Act 1986, complt. is consumer.

This appears from the available materials on record that the residence and office of the complt. and O.P. respectively are situated within the territorial jurisdiction of this Commission/Forum. Besides so far as the pecuniary jurisdiction of this Commission/Forum in concerned this complaint case is within the limit of pecuniary jurisdiction of this Commission as per scopes of Sec-11 of the C.P. Act 1986, Sec-24A of the C.P. Act is also not affecting this complaint having regard to the arisal of cause of action of this complaint (13.01.2017) and filing of this complaint on 18.9.2018 is concerned.

In this backdrop, it can be found that this Commission/Forum has jurisdiction to deal with this complaint. Accordingly, both these two issues are decided and disposed of in favour of the complainant.

Issues No. 3 & 4:-

We now take up both these two issues for discussion for the sake of convenience and brevity and to avoid prolixity and repetition.

It is forthcoming from the admitted existence of the “Loan cum Hypothecation cum Guarantee Agreement” entered into in between the complainant and O.P. side vide Contact No.5002051458 dt.14.6.2016 that against the amount of loan taken by the complt. from the O.P. to the tune of Rs.3,22,224/- it was determined that the borrower/Complt. shall have to repay the loan by 47 total monthly installments and it was further contracted in between the Complt. and the O.P. that the Complt. shall have to pay Rs.10,724/- per month from the first month of installment till 46^th month of installment of repayment of the loan taken by him

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from the O.P. and in the remaining last installment i.e. on the 47^th month of repayment of loan by installment, the complt. has to pay up Rs-10,716/-. It is pertinent to mention that it was also determine that the first installment date would be 11.07.2016 and first disbursement date would be 14.06.2016 and maturity date would be 11.05.2020.

The available documents produced by the O.P., in the absence of any cogent evidence to the contrary, revealed that the complt. could not comply with the agreement to repay the loan amount as stipulated in the agreement entered into by the complt. with the O.P., within the time stipulations and defaulted many a times to repay the loans installment wise.

It is also appearing from the loan agreement dated- 14.06.2016that there was Arbitration Clause in that agreement to settle the dispute of repayment of loan by installment. The O.P. availed itself on that scope but the complt. hadn’t and therefore on exparte hearing ‘Award’ was passed on 26^th April,2018 in favour of the O.P., to entitle the O.P. to take the possession of the complt’s said vehicle taken on loan  from the O.P. and the O.P. was further allowed with the aforestated award of the Arbitrator to sale/transpire the said vehicle for realisation/satisfaction of the loan amount due from the complainant towards the Complt., as the said loan agreement dt.14.06.2016 entered into by the contesting parties, so permitted.

This appears that the Complainant admittedly was given legal notice dt.14.05.2018 about the recovery of possession of the vehicle on 08.05.2018 by the O.P. and as per agreement since the complt. could not repay the loan and settle the A/C within the stipulated time so given in that notice, the O.P. side had sold out the vehicle.

This appears from the materials on record that the complainant did not challenge the Award dt.26.04.2018 before any appropriate legal Forum and could not protract it’s operation by adopting any legal step against it.

The complt. also failed to challenge the existence of such “ Loan cum Hypothecation cum Guarantee Agreement” entered into by him with the O.P. on 14.06.2016. The Complt. could not prove the A/C maintained for his loan repayment is incorrect and practically he had admitted to have failed to repay the loan, installment wise, as stipulated and agreed to be paid by him and thereby the complt. has miserably failed to substantiate his complaint with positive note.

In the premises, both the issues are decided against the complainant and are thus disposed of.                                                                                                                   Contd…7

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Hence it is…

 ORDERED

That the complaint case be & the same is dismissed on contest but without cost, against the O.P.

Let a plain copy of this order be supplied to the contesting parties of this complaint case, by hand/ by Regd. Post with A/D forthwith, free of cost, for information and necessary action, as per law & relevant rules.