SRI G.K. RATH, PRESIDENT …                   The substance of case is that, the complainant being an unemployed for the purpose of his livelihood had purchased an Auto Rickshaw bearing Regd.no.OD-24A- 2520 availing loan from the OP.1 by hypothecating a loan agreement vide No.ORBUUK 00299 on dt.30.06.2014 for Rs.1,57,000/-. The repayment period was 30.06.14 to 01.06.17 but the OP.s handed over him loan statement account on dt.10.02.16 wherein specified two entries on dt.16.7.16 for Rs.41,000/- and on dt.03.09.16 for Rs.25000/-. He contends that, at the time of loan agreement the OP.s took his signatures on their unfilled blank loan agreement papers, as it was blank he could not able to know the rate of interest of the said loan as well as the guarantors were also signed their signatures under compulsion. So on 21.12.14 & dt.15.05.16 he persuaded letters to the OP.s seeking for loan sanction letter and loan agreement papers along with related papers but for no action made by the OP.s. Rather in his absence the OP.s repossess the vehicle through musclemen illegally from his possession and make it sell through auction without intimating the complainant. He further contends that how the OP.s has reflected the loan entries of dt.16.7.16 & 03.09.16 to loan statement dt.16.02.16 which is arbitrary and unilateral. So the complainant time and again approached the OP.s for settlement of his dispute but for no actions for which action he sustained heavy losses which cannot be evaluated in terms of money. So he further contends that the OP.s have reflected in their loan statement that the complainant has repaid Rs.1,82,800/- as on 16.02.16 and he averred from the sources that the OP.s has given the seizure vehicle on lease basis to somebody else who plying the vehicle at Jeypore, dist of Koraput. Hence there is deficiency in service by the OP.s, so he prayed to direct the OP.s to issue N.O.C in favour of complainant, besides to allow Rs.2,00,000/- as compensation and Rs.5,000/- for cost of litigation.

2.         The counsel for OP.s filed his counter wherein he specified that the allegation leveled in the complaint petition is not maintainable, false, frivolous and liable to be dismissed. He also contends that the complainant is not a consumer under the OP.s and the forum has no jurisdiction to entertain the same. Further the complainant using the vehicle for commercial purpose hence he ceased to be a consumer. However as on 20.3.17 the complainant has to repay an amount of Rs.1,09,362/- along with interest. He further relies the decision of Hon'ble National Commission reported in 2013 C.J. page-18 and decisions reported in 2007, II, C.P.J, page-92 (NC), wherein it is held that "repossession of vehicle by the OP.s in case of default in repayment of loan amount and in absence of payment of installments and due amount if possession of the vehicle was taken or surrendered by the complainant and sold in auction, the OP.s have not committed any deficiency in service." Hence in the instant case the OP.s have acted as per provisions, so there is no deficiency in service committed by them, hence he prayed to dismiss the case with costs against the complainant.

3.         The A/A for both the parties have filed copy of certain documents as per their list. Case heard from both sides and perused the records.

4.         It reveals from the side of complainant that, the Complainant had availed loan of Rs. 1,57,000/- on 30.06.2014 and was to be repaid along with prescribed interest within dt.01.06.2017 to the OP.s. The OP is an N.B.F.C. Company, selling loans to their prospective clients for valuable consideration of interest chargeable on such loans. Hence it is a financial service, and for any deficiencies in rendering such service, the C.P.Act shall not lose its jurisdiction to adjudicate the matter.

5.         The counsel for the OP argued that, the vehicle in question being used for commercial purpose, the Complaint cannot be entertained U/S 12 of the C.P.Act, 1986, hence the consumer forum is barred from adjudicating the dispute.

6.         The counsel further submits that the Complainant is an educated and unemployed youth, in want of livelihood he had intended to procure the vehicle for his self employment, hence the purpose he had availed the loan cannot be called as commercial as provisions envisaged in Sec. 2 (1) d (ii) of C.P.Act 1986.

7.         Considering the complaint, counter & arguments, of the Parties, this forum restricted its adjudications to the following questions:

i)            Whether the complainant is a consumer under the OP.s?

ii)           Is this forum ousted of the jurisdiction as envisaged in Sec.11 (2) of the Act?

iii)     Is there any deficiency in service on the part of the OP.s in regard to the present transaction?

iv)      Whether there any remedies available to the complainant or the OP.s in the present situation?

Answers to the issues:

8.         Prima facie, the agreement executed between the parties, in the present case is not in hire purchase agreement, but a loan agreement with hypothecation of vehicles. In hire purchase agreement the vehicle remains in the name of the financing agency and the leasee only enjoys the possession and entitled interest for the use of that vehicles in question, till he continues to abide by conditions laid down in the agreement. But in the present case, the agreement is a loan agreement, and the vehicle in question, i.e. from out of the loan advance of the OP is hypothecated  and as admitted by both the parties is registered in the name of the complainant, hence the Complainant is the lawful owner of the alleged vehicle and a consumer under the OP.s.

9.         The learned counsel for the complainant submitted that the OP.s is an N.B.F.C company, selling loans for a valuable consideration i.e. interest. The OP.s are providing services of financing their identified customers, as the present complainant.

            Sec. 2(d) (ii) defines a consumer means any person who hires of any services for a consideration…..

            Sec.2 (O) of the act defines ‘service’ means service of any description which is made available to potential uses and includes, but not limited to the provisions of facilities in connection with banking, financing, insurance, transport, procuring……

            Hence, the OPs are NBFC Company availing of financing services to their customers and the present complainant availing that service for a valuable consideration, hence the Complainant is a consumer under the Act.

10.       To the contentions of the OP that the vehicle availed under the loan is used for commercial purpose, the Complainant submits that he is an educated and unemployed and to earn his livelihood he has resorted to the vehicle plying against the loan and thus the service cannot be called commercial.

11.       As we have discussed earlier, Primarily the Complainant has availed a loan of Rs.1,57,000/- to purchase an Auto Rickshaw on 30.06.2014 to ply for his livelihood  from the OP, promising to repay the loan within dt.01.06.2017 and he has to repay the loan in total of Rs.2,45,662/- along with other hidden additional charges. The statement of account reflects that the complainant was not that much defaulter as averred by the OP.s. The OP.s averred in their counter that the complainant was a chronic defaulter and has to repay Rs.1,09,362/- as on dt.20.03.2017 but too prior they repossessed the vehicle in absence of  complainant and sold the same on dt.02.09.2016 far before 06 months to one Sri Manoj Kumar Parida, resident of Panigrahi Nagar of Berhampur for a sum of Rs.25,000/- only.

12.       In our view the OP Company in his arbitrary and high handedness has deceived the present complainant acting contrary to his interest and in contrary to the directives of the R.B.I. guidelines, to the laws of the land & public policy, hence has practiced unfair trade practice to the prejudice to the interest, benefit, comfort and standard of business of the Complainant. The OP.s placed their legal notices after auction of the vehicle but fails to file any documents/intimation/notice prior to the repossess the vehicle. Hence from the pros and cons of the entire transaction we found clear deficiency in service on the part of OP.s. The higher ups of OP.s being necessary parties in the present dispute also fails to guide their subordinate to follow legal entity hence found guilty of deficiency in service and the complainant is entitled for relief.

                                                                        ORDER

i.          The dues demanded by opposite parties are hereby quashed and they are directed not to demand rest dues from the complainant against the so called loan/ vehicle, inter alia, to pay Rs.20,000/- (Twenty thousand) as compensation and Rs.5000/- (Five thousand) towards the cost of litigation to the complainant.   

ii.         All the above directions shall be complied with in 30 days of this order, failing which, the total sum will bear 12% interest per annum till its realization. Pronounced on this the 29th day of Jan' 2018.

MEMBER                          MEMBER                                    PRESIDENT

Memo No_________/DF                  Dt……………………

                                                                                             PRESIDENT,DCDRF,

                                                                                                NABARANGPUR