This Complaint coming up before us for hearing on                     16-05-11 in the presence of Sri Y.V. Ramesh Babu, advocate for the complainant and of Sri S.A. Khadar, advocate for opposite parties                        1 and 2, upon perusing the material on record after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint U/S 12 of Consumer Protection Act, 1986 seeking payment of Rs.54, 000/- together with interest @24% p.a., from May, 2008 towards of loss of earnings; Rs.30, 000/- towards value of vehicle together with interest @24% p.a. from May, 2008, Rs.25, 000/- towards repairs spent by him, Rs.10, 000/- towards suffering physical and mental and Rs.1, 000/- towards costs.

2.  In brief the averments of the complaint are these:

                The complainant purchased Bajaj Goods carriage vehicle bearing No.AP- 7W- 7216 with the financial assistance from the 1^st opposite party.   The complainant has to pay Rs.1, 06,140/- (inclusive of interest) @Rs.4, 430/- pm.   On 27-03-08 the complainant paid Rs.15, 000/- to the 1^st opposite party under proper receipt.  Two days later the complainant got his vehicle repaired by spending Rs.25, 500/-.  On 27-05-08 the personnel of the 1^st opposite party forcibly necked down the driver of the said vehicle at Yadlapadu while transporting goods without prior intimation and consent of the complainant.   When the   1^st opposite party took the said vehicle by force it was in good condition.   Several parties approached the complainant to purchase the said vehicle for Rs.70, 000/- to Rs.75, 000/-.  The complainant was shocked to receive notice from the 1^st opposite party on 01-06-09 to the effect that the said vehicle was auctioned at Rs.12,104/- and demanded Rs.30,520/- towards remaining debt.  The 1^st opposite party did not intimate the complainant regarding auction.  The 1^st opposite party kept the vehicle with it for 13 months and used it for commercial purposes.  The complainant gave a suitable reply.  The above acts of the opposite parties amounted to deficiency of service and unfair trade practice.  The complainant used to earn Rs.3, 000/- per month after making the payment of installment amount and maintenance of the vehicle.  The attitude of the opposite parties made the complainant to suffer both mentally and physically and estimated the damages at Rs.10, 000/-.   The complaint therefore be allowed.

3.      The contention of the opposite parties in brief is hereunder:

        The complainant is not a consumer under the purview of the Consumer Protection Act and this Forum has no locus standi or jurisdiction to entertain.   The complainant purchased goods carriage with the financial assistance of the 1^st opposite party.   The 1^st opposite party sanctioned Rs.1, 06,140/- to be repaid by the complainant in 24 monthly installments @Rs.4, 430/- for 23 installments and Rs.4, 250/- for 24^th installment.  The complainant executed loan cum hypothecation agreement along with guarantor.   The complainant is a defaulter in payment of installments and paid Rs.75, 514/- only and failed to pay the remaining amount.   As per hypothecation agreement the opposite party took possession of the vehicle and then issued a notice on 21-05-08 informing the complainant about his indebtedness in a sum of Rs.22, 460/- by        14-04-08 and required the complainant to pay the amount within a week.  The complainant though received the notice kept quite without getting the vehicle released.   The complainant and his guarantors did not respond regarding the payment of balance amount. On               29-05-08 the opposite parties issued paper publication in Eenadu in a classified advertisement for the sale of the said auto.   On physical verification the said vehicle was assessed at Rs.11, 000/-.   The 1^st opposite party on 27-06-08 issued a sale intimation letter under certificate of posting that the said vehicle was going to be sold for Rs.12, 104/-.   The complainant has to pay Rs.30, 520/- towards the said loan.   The opposite parties filed an arbitration case No.45/09 before the sole arbitrator Sri Y. Sanakara Narayana Murthy ( Retired Judicial Magistrate, Ponnur).  The complainant appeared before the said arbitrator and filed this case before this Forum alleging deficiency in service.  The complainant suppressed all the facts and approached this Forum with a malafide intention.   The opposite parties did not commit any deficiency of service. Rest of the allegations contra mentioned in the complaint are all false and are invented to suit his case.  The complaint therefore be dismissed.

4.     Exs.A-1 to A-6 on behalf of complainant and Exs.B-1 to B-5 on behalf of opposite parties were marked.

5.     Now the point that arose for consideration in this complaint are these:

1. Whether the complainant is a consumer under the purview of Consumer Protection Act?
2. Whether the Consumer Forum has no jurisdiction to entertain the complaint?
3. Whether the 1^st opposite party gave intimation/notice to the complainant before seizing the vehicle?
4. Whether the 1^st opposite party gave intimation/notice to the complainant before auctioning the vehicle?
5. Whether the opposite parties committed deficiency of service?
6. Whether the complainant is entitled to compensation and if so to what amount?
7. To what relief?

6.    POINTS 1&2:-  The opposite parties in para 3 of their affidavit contended that the complainant is not a consumer under the purview of Consumer Protection Act and the jurisdiction of the Forum to entertain the complaint.  The complainant purchasing the vehicle under hire purchase agreement from the opposite parties on 20-04-06 under Ex.B-1 and agreeing to repay the loan amount in 24 monthly installments are not in dispute.   Schedule of Ex.B-1 revealed that the last installment payable was on 20-04-08. 

7.     To show that the complainant is not a consumer the opposite parties filed xerox copy of identity card issued by Depot Manager, APSRTC, Chilakaluripet (Ex.B-5).   Ex.B-5 revealed that Ch. P.A. Rao is working as conductor in APSRTC at Chilakaluripet depot with staff NO.E.392280.   The complainant did not mention his occupation in long cause title of the complaint for the reasons best known to him.   It is not the case of the complainant even after version that he is not working as conductor in APSRTC. The complainant therefore obtained loan for purchase of the vehicle AP-7W-7216 for earning profits i.e., commercial purpose.  Section 2 (d) Clause-II of Consumer Protection Act ‘excludes a person who hires or avails of any service for any commercial purpose’. The said contention of the opposite parties is having considerable force.  Under those circumstances, we opine that the complainant is not a consumer under the purview of CP Act and as such this Forum has no jurisdiction to entertain the complaint.    Hence, these points are answered against the complainant.

8.    POINTS. 3 to 6:-   In view of above findings, the decisions relied on by the complainant reported in Tata Motors Limited vs. Indrasen Choubey and ors. (2009 (2) CPR 238 NC), Tata Finance Limited vs. Francies Soeiro (2008 (3) CPR 45 (NC) and K. Habibunnisa vs. Sriram Transport Finance Limited (2009 (4) CPR 49; relied on by the opposite parties reported in Omprakash Sastry vs. Ashok Leyland Finance Limited and another (2006 (1) CPJ 614), Sheela Kumari vs. Tata Engineering and Locomotive company and others                                    (2007 (2) CPJ 92 (NC) and  Parameswari vs. V.S.T. Service Station and others (2010 (2) CPJ 45 (NC) in our considered opinion need not be gone into.   In view of the aforementioned discussions, these points are answered accordingly.

9.  POINT No.7:-   In view of findings on points 1 and 2, in the result the complaint is dismissed without costs.

Typed to my dictation by junior stenographer, corrected by me and pronounced in the open Forum, dated this the 3rd day of June, 2011.          

Sd/-xxx                                                                                             Sd/-xxx

MEMBER                                                                                        PRESIDENT

APPENDIX OF EVIDENCE

  DOCUMENTS MARKED

For Complainant:     

For opposite parties:  

                                                                                                      Sd/-XXX,

                                                                                           PRESIDENT