The case record is posted today for hearing. Neither the complainant nor his Advocate is present and no step is taken on his behalf. Learned counsel for the O.Ps are also absent. On repeated calls, none respond on behalf of both the parties. As it appears from the case record, the complainant was absent since long. Due to the long absence of the complainant, the hearing of this case impaired. It is seen from the case record that the O.Ps were appeared and filed their written version. Thus, taking into consideration the long absence of both the parties, this Commission is constrained to pass order considering the merit of the case.
On perusal of the complaint petition, it is seen that the complainant had purchased one vehicle bearing Registration No. OR-01L-7847, being financed by the O.Ps for the purpose of earning her livelihood. There was agreement between the complainant and the O.Ps for repayment of the loan amount. On 30.8.2008 the O.Ps had taken the vehicle in question into their possession forcibly while his family members were on tour to Puri.
O.Ps have stated that the complainant does not fall within the definition of consumer and the relationship between the parties is that of borrower and lender. Thus, the case of the complainant is not maintainable. That apart, the vehicle in question was purchased by the complainant taking loan from the O.Ps and as per the agreement, he did not repay the outstanding loan amount intentionally. Thus, the vehicle in question was taken to their possession and sold it and the sale proceeds were credited to the loan account of the complainant. Still then, the complainant is liable to pay the balance dues.
Upon careful perusal of the pleadings of both the parties, this Commission is of the considered opinion that the vehicle in question was purchased by the complainant by entering into a loan-cum-hypothecation-cum-guarantee agreement executed between the parties for a sum of Rs.4,35,000/- which was to be repaid in 59 instalments, but the complainant defaulted in payment of the instalments for which the vehicle was repossessed and the sale proceeds were credited to the loan account of the complainant, but he is liable to pay the balance dues. In 2015(4) CPR-148 (N.C) in the case of Sunny & Others -V- Rajesh Tripathy, Hon’ble National C.D.R Commission, New Delhi have been pleased to observe 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, 1986 and in such circumstances, complainant does not fall within purview of consumer. Further, the Hon’ble National C.D.R Commission, New Delhi in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara -vs.- Magma Leasing Ltd. have been pleased to observe that under a hire purchase transaction, the financer does not render any service within the meaning of C.P. Act and the petitioner is thus, not a consumer. Moreover, O.Ps have the right to recover their dues and any demand for payment of dues cannot be treated as threatening. Further, exercising legitimate right to recover the dues by a financer cannot be treated as deficiency of service or unfair trade practice. Under the hire purchase agreement, it is the financer, 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 financer.
In the above facts and circumstances of the case and taking into consideration of the observations of the Hon’ble National C.D.R Commission, New Delhi, this Commission is of the considered opinion that the complainant is not a consumer. Therefore, the present case is not maintainable and the complainant has no cause of action to file the case. Consequently, the case of the complainant deserves no consideration and liable to be dismissed.
Accordingly, the case of the complainant is dismissed on merit.
