Punjab

Fatehgarh Sahib

CC/24/2017

Devinder Singh - Complainant(s)

Versus

Tata Motors. Ltd. - Opp.Party(s)

26 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

Consumer Complaint  No. 24 of 2017

                                                     Date of institution : 05.04.2017                                                            Date of decision    : 26.07.2018

Devinder Singh son of Sh. Sant Singh, resident of House No.258, Village Brass, Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

1. Tata Motor Limited, Near Jyoti Sarup Gurudwara Sahib, Chandigarh Road, Village Attewali, Tehsil and District Fatehgarh Sahib, now Dada Motors Private Limited/Tata Motors Limited, Near Khanna Petrol Pump, Near village Tarkhan Majra, G.T.Road, Sirhind, Tehsil and District Fatehgarh Sahib through Subhash Chand Branch Manager.
2. Indusind Bank Ltd., Branch at House No.444, Post Office Road, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib through its Manager.

 …..Opposite Parties

Complaint under Sections 12 to 14 of the Consumer Protection Act.                

Quorum

Sh. Ajit Pal Singh Rajput, President                                        Sh. Inder Jit, Member

 

 

Present :        Sh. G.S.Sandhu, Adv. Cl. for complainant.

                      Ms. Nirlep Kaur, Adv.Cl. for OP No.1.

                      Sh. Lalit Gupta, Adv.Cl. for OP No.2.

ORDER

 

By Ajit Pal Singh Rajput, President

 

                      Complainant, Devinder Singh son of Sh. Sant Singh, resident of House No.258, Village Brass, Tehsil and District Fatehgarh Sahib, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.           The complainant purchased a Tata ACE bearing Temporary Registration No.PB-10EU(T)-4885 Model 2014, bearing Chassis No. MAT445082EVN51648, Engine No.2551DI60LVYSB9767 from OP No.1 on 26.12.2014 for a sum of Rs.3,95,984/- plus Rs.400/- for temporary number plus Rs.1,000/- for dilid card plus Rs.12,900/- for R.C. plus Rs.10,000/- for insurance plus Rs.4500/- for P.F and as such total amount becomes Rs.4,24,784/-.   The complainant paid Rs.68,784/- as down payment and Rs.3,56,000/- was taken as loan from OP No.2 through Hire Purchaser Agreement against Hypothecation of the vehicle. At the time of purchase of said vehicle, OP No.1 completed all the formalities and also took the signatures of the complainant on some blank papers. The said loan amount was to be repaid within four years through 47 installments of Rs.10,452/- each. The complainant is regularly depositing the installments of the loan and accordingly he has deposited a total sum of Rs.2,84,660/- with OP No.2.  But OP No.2 sent a notice dated 10.02.2017 to the complainant regarding the illegal demand of Rs. 60,462/-.  Thereafter on 07.03.2017, the employees of OP No.2 along with their henchmen had taken away the vehicle in question from the complainant forcibly and illegally and without any right or authority.  It is further stated that the original documents i.e. R.C. and Insurance Cover note etc. are in possession of the OPs since the date of purchase of vehicle.  The OPs failed to hand over the original R.C. and Insurance Cover note to the complainant despite paying the amount for preparation of said documents by the complainant to the OPs.  The complainant so many times requested OP No.2 to handover the possession of the vehicle in question to the complainant but it did not listen to the genuine requests of the complainant and totally refused to hand over the said vehicle. The act and conduct of the OPs amounts to deficiency in service on their part. Hence, this complaint for giving directions to the OPs to hand over the possession of the vehicle in question to the complainant and further to pay Rs.1,00,000/- as compensation for mental agony and harassment suffered by the complainant at the hands of the OPs.
3. The complaint is contested by the OPs. In reply to complaint, OP No.1 raised certain preliminary objections, inter alia, that the present complaint is absolutely false, frivolous and vexatious having no reality at all and the same is liable to be dismissed with costs; the complainant has not approached this Forum with clean hands; no cause of action has ever been accrued to the complainant to file the present complaint and this Forum has no jurisdiction to try and decide the present complaint as the same does not fall within the ambit of Consumer Disputes. As regards the facts of the complaint, OP No.1 stated that the complainant purchased the vehicle on 26.12.2014 for a sum of Rs.3,95,984/- and Rs.1400/- were paid for delight card and temporary number of the vehicle. The loan was taken by the complainant from OP No.2 and all the formalities of loan were completed by the complainant himself and OP No.1 has no role to play in the loan taken by the complainant.  It is further stated that the complainant has already taken the original invoice, form No.21 and insurance of the vehicle from OP No.1 as he was himself preparing the registration certificate of the vehicle. There is no deficiency in service on the part of OP No.1. After denying the other averments made in the complaint, OP No1 prayed for dismissal of the complaint qua it.
4. In reply to complaint OP No.2 also raised certain preliminary objections, inter alia, that the complainant does not come into the purview of definition of Consumer as per law; the complainant is estopped by his own act and conduct to file the present complaint; this Forum has got no jurisdiction to try and decide the present complaint and the complainant has no locus standi  and cause of action to file the present complaint. As regards the facts of the complaint, OP No. 2 stated that the complainant intentionally and willfully makes a default in depositing the instalments as per the loan agreement due to which an amount of Rs.60,462.98 became overdue towards the complainant and OP No.2 so many times requested the complainant to deposit the overdue amount but he failed to deposit the same. Thereafter, OP No.2 issued notice dated 10.02.2017 to the complainant and his guarantor Bahadur Singh and requested them to make payment of overdue amount but they failed to deposit the overdue amount. Thereafter, on 07.03.2017 the complainant with his free Will and without any pressure surrendered the vehicle in question and handed over the peaceful possession of the same to the employees of OP No.2 by saying that he is not in a position to deposit the instalment. At that time, the complainant also put his signatures on letter of surrender and on the repossession inventory list as a token of his willingness/consent to surrender the vehicle in question.  It is further stated that after taking peaceful possession of the above said vehicle from complainant, OP No.2 again sent a notice dated 09.03.2017 to the complainant and his guarantor by which they were called up on to make the payment of Rs.2,63,985/- as settlement amount as on 09.03.2017 within stipulated period and to take the possession of the said vehicle but despite the service of notice, they neither deposited the amount nor gave any reply to notice.  Thereafter, before selling the vehicle, OP No.2 again sent pre-sale notice dated 24.03.2017 to the complainant and his guarantor but they failed to deposit the amount as demanded by OP No.2. Therefore, the vehicle in question was sold by OP No.2 and the sale proceeds were adjusted against the loan account of the complainant and even after adjustment of sale proceeds, huge amount is still due towards the complainant. Hence, there is no deficiency in service on the part of OP No.2. After denying the other averments made in the complaint, OP No.2 prayed for dismissal of the complaint.
5. In order to prove his case, the complainant tendered in evidence copy of documents Ex. C-1 to C-29, his affidavit Ex. C-30, copy of application to SSP Fatehgarh Sahib Ex. C-31 and closed the evidence. In rebuttal  OP No.1 tendered in evidence affidavit of Inder Mohan Pal Singh Ex. OP1/1, true copies of documents i.e. statement of account Ex. OP1/2, bill Ex. OP1/3 and closed the evidence.  OP No. 2 tendered in evidence affidavit of Vishal Hans, Legal Manager Ex. OP2/1, true copies of documents i.e. Special Power of attorney Ex. OP2/2, loan agreement Ex. OP2/3, notice dated 10.02.2017 Ex. OP2/4, postal receipts Ex. OP2/5 to OP2/6, repossession inventory list Ex. OP2/7, letter of surrender dated 07.03.2017 Ex. OP2/8, notice after repossession dated 09.03.2017 Ex. OP2/9, postal receipts Ex. OP2/10 to OP2/11, pre-sale notice dated 24.03.2017 Ex. OP2/12, postal receipt Ex. OP2/13 & OP2/14 and closed the evidence.
6.  The learned counsel for the OPs has vehemently contended that before deciding the present complaint on merits, his preliminary objection may be decided first. Learned counsel has stated that the complainant is not a consumer as per Section 2(1)(d)(ii) of the Consumer Protection Act,1986, as  complainant had purchased the vehicle/mini truck in question for the purpose of carrying of goods. Learned counsel also pleaded that it is clearly evident from the documents placed on record by the complainant that the vehicle/mini truck in question can only be utilized for commercial purpose. Learned counsel also submitted that in the pleadings, complainant has no where stated that the said vehicle/mini truck was being used for earning his livelihood by way of self employment. Learned counsel argued that the complainant has alleged in his pleadings that it is also a case of forgery of signatures on certain documents placed on record. He further argued that as regard to the allegations of forgery of signatures, the said dispute can only be adjudicated by elaborate evidence and by getting the signatures verified from the handwriting expert and not in a summary manner.
7.  On the other hand, the learned counsel for the complainant has submitted that it is totally wrong to say that the said vehicle/mini truck was purchased for commercial purpose. He vehemently contented that the complainant had been using the said vehicle for self-employment to earn his livelihood, thus the complainant falls within the definition of Section 2(1)(d) of the Act. Learned counsel further contended that as regard to forgery of signatures, the complainant will seek his remedy before the appropriate court. Learned counsel argued that it was the OP to prove that the complainant was using the said vehicle/mini truck in question for commercial purpose and the OP failed to place any document on record to prove the same. Learned  counsel relied upon the following case laws titled as Branch Manager,Shriram Transport Finance Co. Ltd. Vs. Mahesh Sahani Lakshipur Math, College in 2016(4) C.P.R.514 and Citicorp. Maruti Finance Ltd. Vs. S.Vijayalaxmi in 2012 AIR(SCW)251.
8.  After hearing the contentions of the learned  counsel for the parties and going through the record, we find force in the submissions of the learned counsel for the OPs. We are of the considerate view that the complainant has failed to prove on record that he had purchased the said commercial vehicle/mini truck for earning his livelihood by self-employment. The complainant has no where pleaded in his pleadings nor placed on record any material document that establishes that the said vehicle/mini truck was being used for self-employment to earn his livelihood. The case law relied upon by the learned counsel for the complainant is not applicable to the facts and circumstances of the present case.
9.  We are of the view that the complaint of the complainant does not fall within the preview of Section 2(1)(d)(ii) of the Act which reads as:
   • (ii)        hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;”Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”
10. Accordingly, in view of our aforesaid discussions, we are of the opinion that complainant is not a consumer as it is a admitted fact that vehicle in question is commercial vehicle, hence there is no need to go into the merits of the present case. The present complaint is disposed of with a direction to the complainant to approach the Civil Court as the complainant is not a consumer as per Section 2(d) of the Act and there are allegations of forgery of signatures of the complainant which cannot be adjudicated in a summary manner. The time spent for pursuing the present complaint before this Forum be excluded for the purpose of limitation in terms of the order of Hon’ble Supreme Court, in case titled as Laxmi Engineering works Vs P.S.G Industrial Institute(1995)3 SCC 583. All the original and necessary documents placed on record before this Forum be also returned to the complainant. Parties to bear the costs.

11.       The arguments on the complaint were heard on 17.07.2018 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 26.07.2018

(A.P.S.Rajput)          

     President

 

(Inder Jit)          

   Member