Presented by Sri G.S.Pradhan, President. <br /> The case pertains to deficiency in service as envisaged under the provision of Consumer Protection Act-1986 and its brief fact is as follows:-<br /> <br /> The Complainant has purchased a LPT 2515 Model vehicle bearing Regd No. OR-05-S-8155 from the Opposite Party on hire purchase basis on Dt.16/05/2007 to earn his lively hood by playing the vehicle himself. As per the term and condition agreed between the Parties, the Complainant has repaid a sum of Rs. 1,18,000/-(Rupees one lac eighteen thousand)only from Dt. 26/07/2007 to Dt.04/09/2008 by drawing demand draft at Bargarh Banks. On Dt. 11/03/2008, while the vehicle was plying on road at Keonjhar loaded with iron ore the Opposite Party forcibly took away the vehicle with out any prior intimation and issued an inventory report to the Complainant. Thereafter, without any notice or intimation, the Opposite Party arbitrarily sold the vehicle in auction in a very low rate i.e. 4,00,000/-(Rupees four lac)only which opposed to the principle of natural justice. Further the Complainant contends that, with an ulterior motive the Opposite Party appointed an Arbitrator and manage to obtain an ex-parte order and claim a further Rs. 2,04,805.32/-(Rupees two lac four thousand eight hundred and thirty two paise)only and Rs. 53,233.09/-(Rupees fifty three thousand two hundred thirty three and nine paise)only as over due charges. For such arbitrary act of the Opposite Party the Complainant suffers humiliation and harassment causing financial loss and mental agony.<br /> <br /> Alleging deficiency in service by the Opposite Parties the Complainant claims Rs.2,00,000/-(Rupees two lac)only for the cost of the iron ore, Rs.2,00,000/-(Rupees two lac)only as damages mental agony and loss of reputation Rs.2,000/-(Rupees two lac)only as litigation expenses with 8%(eight percent) per pendentelite future interest.<br /> <br /> In its version the Opposite Party denied to have cause any deficiency in service towards the Complainant and also denied all other allegation made by the Complainant. The Opposite Party contend that, the Complainant is a borrower, availing a loan by way of Hypothetication agreement bearing No. 5000103649 Dt.21/06/2007 to purchase a vehicle for commercial purpose and as per the term and condition of the agreement the Complainant has to repay the equal monthly installments of Rs. 2,300/-(Rupees two thousand three hundred)only on 21st of every month. As the vehicle used for commercial purpose, by the Complainant, the present dispute is not maintainable under the Consumer Protection Act-1986.<br /> <br /> The Opposite Party contend that, the Complainant is a habitual defaulter in payment of installment regularly for which the Opposite Party has issued demand notices frequently to the Complainant. Despite repeated requests, the Complainant deliberately failed and neglected to regularizes the loan and hence the Opposite Party on Dt.11/03/2008 took possession of the vehicle peacefully complying all the legal procedure. After repossession of the vehicle, the Opposite Party has issued pre-sale notice to the Complainant, but he did not come forward to deposit the outstanding amount. So after giving maximum opportunities to the Complainant, the vehicle was sold on an auction to Mr. Girija Shanka for a consideration value of Rs. 4,00,000/-(Rupees four lac)only on Dt. 26/03/2009. As the amount accrued out of sale was not sufficient to liquidate the said loan account, and as per the terms and condition of the agreement, the matter has been referred to the Sole Arbitrator and the Arbitrator after following the due procedure of the Act, pleased to pass an award in favour of the Opposite Party and the copy of said award has been sent by the Arbitrator to both the Parties.<br /> <br /> The Opposite Party contend that, this Hon'ble Forum has not jurisdiction to pass any order upon the proceeding of Learned Arbitrator, hence this complaint is not maintainable.<br /> <br /> Further the Opposite Party contend that, the Complainant is a defaulted borrower of the Opposite Party/financer. So due to default in repayment of the agreed installments, the vehicle has been repossessed by the Opposite Party and disposed of after issuing of pre-sale notice and the accrued amount has been adjusted to the loan account, hence there is no any deficiency in service by the Opposite Party towards the Complainant.<br /> <br /> The Opposite Party prays for dismissal of the case with cost and direct the Complainant to repay the pending outstanding against the said loan account as per award passed by the Learned Arbitrator.<br /> <br /> Perused the complaint petition, version of Opposite Party and the copy of documents filed by the Parties in respective of their case and find as follows:-<br /> <br /> The Opposite Party being a financed company and the Complainant availing of its service by purchasing the vehicle bearing Regd No. LPT 2515/OR-05-S-8155 on hire purchase basis is a consumer of Opposite Party and further the Complainant himself for earning his livelihood of his family, driving the vehicle himself and managing his family out of the said income. So the vehicle is not use for commercial purposes and the dispute is maintainable under the Consumer Protection Act-1986.<br /> Further, the terms and conditions of the agreement executed by the Parties to refer any dispute arisen between the Parties cannot take away the right of the complaint to agitate the matter in the consumer Forum, neither does it oust the jurisdiction of the Consumer Law Agencies to try the same.<br /> <br /> It is not disputed by the Parties that, the Complainant has purchased the vehicle from the Opposite Party on hire purchase basis and as per the term of agreement between the Parties, the Complainant has to repay the loan amount on equal monthly installment. It is also not disputed that, for non payment of some installment, the Opposite Party took possession of the vehicle from the possession of the Complainant and sold the vehicle, in an auction for a consideration of Rs.4,00,000/-(Rupees four lac)only to one. The only grievance that propelled the Complainant to knock the door of the Forum seeking remedy thereof is that, instead of resorting the means as prescribed by law the Opposite Party has forcibly took away the loaded vehicle while it was running at Keonjhar. The Opposite Party claim that, repeated demand notices were issued to Complainant for regularization of the loan account prior to repossession and resold of the vehicle. As per the hire purchase agreement, the Opposite Party are required to issue notices prior to confiscation/repossession of the vehicle but no evidence is adduced by the Opposite Party to prove its case. The financer/Opposite Party can not take repossession of the vehicle for which the loan is advanced. It can take repossession of the vehicle in case, where the borrower may have committed default in payment of installment through proper procedure recognized by law instead of taking resort to strong arm tactics. Further the Opposite party has sold the vehicle in an auction for a very low rate with out any prior notice or giving an opportunity to the Complainant to sell the same with the best price available to him is amounts to unfair trade practice and deficiency in service on the part of the Opposite Party towards the Complainant.<br /> <br /> Further it is evident from the copy of inventory list of repossessed vehicle issued by the Opposite Party that, the vehicle was loaded with iron ore which was not returned to the Complainant after taking repossession of the vehicle by the Opposite Party. The Complainant claims that the value of the loaded iron ore was for Rs. 4,00,000/-(Rupees four lac)only which is not challenged by the Opposite Party.<br /> The Complainant has cited rulings reported in 2007 (36) O.C.R. Page 815 and 2009 N.C.J. Page 260 N.C to prove his case.<br /> <br /> In view of above discussion, the Opposite Party by taking away the loaded LPT vehicle from the possession of the Complainant and sold the vehicle in an auction at unjustifiably low price, with out issuing any prior notice/pre-sale notice to the Complainant, before repossession and resale of the vehicle has committed grave deficiency in service towards the Complainant.<br /> <br /> In the circumstances of the case, the Forum concludes that the Hire Purchase Agreement executed between the Parties stands terminated and Opposite Party shall not demand any further amount arising out of that said loan agreement bearing No. 5000103649 Dt.21/06/2007. The Opposite Party is directed to pay Rs.2,00,000/-(Rupees two lac)only towards the cost of the iron ore and Rs.10,000/-(Rupees ten thousand)only towards damages and cost of the case to the Complainant with in 30(thirty) days hence, failing which 18%(eighteen percent) interest per annum shall be charge on the total amount till payment.<br /> <br /> Complaint allowed and disposed of accordingly.<br />