Sri Utpal Kumar Bhattacharya, Member

Instant complaint u/s 17(1)(a)(i) of the C.P Act, 1986 has been filed by the Complainant alleging the OPs of crux deficiency in rendering services and adopting unfair trade practices against him.

Briefly stated, the facts relevant with the instant complaint for disposal of the case were that the Complainant, allegedly an un-employed youth, intended to purchase a bus for earning livelihood by way of self-employment. Accordingly, he purchased one Tata Make Chassis from Bhandari Auto Mobiles under Registration No. NL—01G-6451, Engine No. 01E64100721, Chassis No. MAT 700012—A3F-10944 at a total consideration of Rs. 29,94,584/-. The Complainant made a down payment of Rs. 2,14,584/- to the Opposite Parties. The rest amount of Rs. 27,80,000/-, financed by the Opposite Parties, was repayable at an EMI of Rs. 68,137/- within the period from 11.03.2011 to 11.06.2015.

The Complainant had to spend an amount of Rs. 9,63,206/-, head wise break up of expenditure of which was detailed at para 4 of the complaint, for making the said vehicle road worthy. The Complainant who maintained so long a good track record of repayment of loan, became defaulter in payment of 3 EMIs which he could not pay allegedly because of some compelling circumstances suddenly cropped up due to illness of some of the members of his family.

The Complainant’s fair intention of repayment of defaulting EMIs was not considered by the OPs. The OPs offered to the Complainant through its two letters both dated 15.03.2012 the opportunity of full and final settlement to close the subject loan by paying Rs. 1,18,289/- and Rs. 4,500/- respectively. What was peculiar, the OPs, in spite of payment of the said two amounts being made by the Complainant, repossessed the vehicle from the parking yard of Bankura District applying coercive measures, handing over of the copy of the inventory of items of the lifted vehicles to the khalasi namely Omkar Yadav.

The Complainant  observed in the activities of the OPs a serious deficiency in rendering services and resorted to this Commission filing the instant Complaint Case with a view to having his grievances legally addressed with the claim of refund amount to Rs. 17,14,275/-, being the cumulative expenditure of Rs.2,14,584/- as down payment made for booking the vehicle, Rs.9,60,206/- for making the vehicle roadworthy and Rs.5,36,485/- being the cumulative amount of instalments paid with an interest @ 18% p.a. on the entire amount of Rs.17,14,275/-. The Complainant also claimed a compensation and litigation cost of Rs. 20,00,000/- and Rs. 20,000/- respectively.

Heard the Ld. Advocates appearing on behalf of both sides. The Ld. Advocate appearing on behalf of the Complainant, sticking to the lines narrated in the complaint, repeated the same story with the prayer for passing an order towards refund with compensation and cost as prayed for in the Complaint petition.

The Ld. Advocate appearing on behalf of the OPs, per contra, submitted that the OP was proprietor of Akash Road Carrier which is a commercial organization and the vehicles he used for commercial purpose.

Referring to running page 49 of the written statement of the OPs, the Ld. Advocate submitted further that the page was related to vehicle Registration No. 0R14Q6925 of Chassis No.447207KSZ317662 and Engine No. 70K62613211. Similarly, he went on to refer to running page No. 52 of the same written statement which appeared to be related to vehicle Registration No. 0R14P3151, Chassi No. 429025KTZ750343 and Engine No. B591452060J62507317. As submitted, both the vehicles, different ones from the subject vehicle, were under the ownership of the same Harish Singh, the proprietor of the Complainant organization. From this, as contended, it was sufficiently evident that Harish Singh the proprietor of the Complainant organization was the owner of more number of vehicles which he used for commercial purpose for deriving profit. As continued, the averment that the Complainant made to the effect that he purchased the subject vehicle for earning his livelihood by way of self-employment, appeared to be a proven false and the complaint should be dismissed for the grounds that the Complainant did not approach the Commission with clean hands and the issue was related to commercial purpose and thus beyond the authority of the Consumer Forum to adjudicate.

As contended, the vehicle was not repossessed by the OPs forcively. The Complainant was supposed to repay the total amount of Rs. 35,43,125/-, taken as loan, in 52 EMIs. The Complainant stopped repayment when 37 instalments were still due to him. Referring to running pages 32, 34, 35 to 42 of the written statement filed by the OPs, the Ld. Advocate maintained that every step including the request to the Complainant for payment of dues followed by reminders till issuing of the presale notice of the vehicle through public auction were duly followed before repossessing and disposal of the subject vehicle.

The Ld. Advocate, drawing the notice of the Bench to the running pages 44 and 47, went on to continue that an arbitration proceeding was initiated prior to the filing of the instant Complaint Case. The Complainant even did not respond to the notice issued in his name in respect of the said Complaint Case. As submitted, this also should be kept in view while adjudication the issue.

With the above submission, the Ld. Advocate prayed for the complaint to be dismissed setting aside the impugned judgment and order.

Perused the papers on record. Considered submissions of the Ld. Advocates appearing on behalf of both sides. Ld. Advocate appearing on behalf of the OPs, claiming the complaint to be related to a commercial issue, has, in fact, challenged the maintainability of the case. The Bench, before going into any further discussion on other points of submissions, considers it wise to decide on maintainability point first.

The Complainant, as it appeared, used to run a proprietorship business under the name and style ‘Akash Road Carrier’. It further appeared that the Complainant was owning more than one vehicle which he used to apply hiring the services of the professional drivers.

The circumstance narrated above brings into light the fact that the averment that the Complainant has made in the complaint petition towards his purchasing the subject vehicle for earning his livelihood by way of self-employment was furthest from the truth as he used to run a transport business as proprietor of a commercial firm for earning profit and was owning number of vehicles, sometimes in his name and sometimes in the name of his commercial firm. Since the point raised by the OPs challenging the maintainability of the complaint, reached the root of the issue, we are of the considered view that the complaint lacks the merit for being considered as maintainable as Complainant himself does not come within the meaning of consumer as envisaged under Section 2(1) (d) of the Consumer Protection Act, 1986.

We don’t want to lengthen our discussion on other points of issue raised at the time of submissions by the parties in view of the above.

Hence,

ORDERED

that the complaint be and same stands dismissed. No order as to costs. The Complainant, however, is given liberty to approach the appropriate Forum for having his grievances addressed and in that case the Complainant may seek relief in terms of the observation of the Hon’ble Apex Court in Laxmi Engineering Works—Vs—PSG Industrial Institute reported in II (1995) CPJ 1 (SC) :1995 3 SCC 583 for the purpose of exclusion of time spent in pursuing its case before this Commission.