O R D E R

Adv.Ravi Susha, Member.

The complainant is the owner of a TATA Safari Dicor EX model passenger car vide registration No.KL 02 Z 9925. This car was registered as a tourist taxi. The car was purchased by the complainant for eaking a livelihood out of it. The complainant got delivery of the car on 06/01/07 and it stood hypothecated to the HDFC bank Kollam, represented by the 2^nd opposite party. The 1^st opposite party is the chairman of the 2^nd opposite party and the 3^rd opposite party is dealing with the loan accounts of the 1^st and 2^nd opposite parties. The opposite parties 1 to 3 are jointly and severally liable on behalf of the HDFC bank.

As per the terms and conditions of the hypothecation, the complainant was to pay an amount of Rs.14,000/- monthly during starting from 07/12/2006 which is spread over a period ending  on the date of 07/05/2011. The amount financed by the 2^nd opposite party was Rs.5,71,000/-. The complainant was regularly remitting

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the installments and even on 09/09/08 he remitted the installment amount of Rs.14,000/- into his loan account. The total installments thus paid by the complainant on his loan account till 09/09/08 was Rs.2,80,000/-.

On 27/10/2008, the goondas of the opposite parties with the help of the police illegally and by using force, seized the vehicle from the custody of the complainant stating that there was pending installments of 2 months on the loan account. The complainant immediately contacted the 2nd opposite party and informed them that the loan account will be regularized at the earliest. The complainant immediately arranged the pending dues to regularize the account but the 2^nd and 3^rd opposite parties did not allow the complainant to remit the installments and directed the complainant to close the account immediately together with the interest, penal interest and other charges as directed by them upon the loan account till 07/05/2011 or else they threated to dispose off the vehicle. The act of Seizing the vehicle from the custody of the complainant is highly illegal and is against law and practice, and

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against the guidelines issued by the RBI from time to time and violations of the various judgments rendered by the Hon’ble Supreme Court in this regard.

The act of the opposite parties has resulted in gross deficiency of service t o the complainant and it amounts to sheer unfair trade Practice on the part of them. Hence the complaint is entitled to receive an amount Rs.10,00,000/- for causing deficiency in service, unfair trade practice, loss of livelihood, causing mental agony, pain and sufferings and if the opposite parties 1 to 3 fails to return his vehicle, they may be directed to pay an amount of Rs.6,00,000/- being the investment made by the complainant upon the vehicle, apart of the amount of Rs.10,00,000/- claimed and for causing deficiency of service, unfair trade practice, loss of earning and for causing mental agony, pain and sufferings thus totaling to a claim of compensation of Rs.16,00,000/-.

Opposite parties filed 1 to 3 version contenting that the averment that the car was purchased by t he complainant for making a livelihood out of it is false and hence denied. The

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complainant is doing real estate business and he also owns may showrooms at Pallimukku junction which are rented out. The complainant had sufficient means and earnings even before the purchase of the said vehicle for leading a wealthy life. The averment that the complainant was regularly remitting the installments is false and hence denied. The complainant was a chronic defaulter the complainant committed gross default in remitting the payments regularly and promptly in accordance with the terms of the agreement. None of the post dated cheques issued by the complainant for the payment of installments were cleared. All the payments so far made by the complainant were after the due dates and that too after the collection staffs frequent visit to the complainants house after the due dates. The averment that the complainant remitted Rs.14,000/- on 09.09.08 is true. At the time of remitting the said installment the complainant had defaulted 4 installments and as such an amount of Rs.62,648/- was due in the complainant’s account as installment due and other penal charges and more importantly, the bank had by exercising the right

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conferred upon it through clause 11.17 of the said agreement had recalled the loan.

The opposite parties never employed goondas to seize the said vehicle from the custody of the complainant. After the issuance of the above said notice the complainant had concealed the said vehicle and was attempting to transfer the vehicle to strangers without making the payment due to the bank whileso on 27.10.08 the executives of the bank happened to see the vehicle parked at kaankathumukku in the Alappuzha-Kollam highway without anybody inside it. Immediately the Bank authorities filed a petition before the West police station circle Inspector seeking assistance to enforce the Bank’s right to repossess the vehicle under clause 14.2 of the said agreement had filed a petition before the West Police, Kollam. The Police persons duly appointed by the Circle Inspector then went to the spot wherein the car was parked and contacted the complainant over mobile phone, and the complainant himself came to the spot and handed over the key of the vehicle to the police. Thereafter the vehicle was handed over to the bank by the police.

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The opposite parties have every right to take back the hypothecated asset if there is default in the repayment as per the agreement. The opposite parties had exercised the said right through the due process of law. The complainant never approached the opposite parties for a settlement after the repossession of the vehicle . On 28.10.08 itself the opposite party had issued a registered notice to the complainant calling upon him to pay an amount of  Rs.4,83,822/- on or before 03.11.08 and thereby close the liability failing which the vehicle will be sold by the bank.

The opposite parties had not done anything violating the guidelines of R.B.I and had not violated any guidelines issued by the Hon’ble Supreme Court. The opposite parties had not violated any law on the other hand the complainant had committed breach trust and cheating against the bank. There is no deficiency in service or unfair trade practice from the part of the opposite parties.

4^th opposite party filed separate version contenting that there is no service rendered by the 4^th opposite party for hire or reward

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and hence the service rendered by the 4^th opposite party will not come within the scope and ambit of section 2(1)  (o) of the Consumer Protection Act and the petitioner is not a consumer as defined in Section 2(1) (d) of the same Act. The 4^th opposite party is doing a statutory duty cast up on the State of Kerala and the Regional Transport Authority is a department of the Government and Registration Vehicle plying across India is a statutory duty. Hence the complaint is not maintainable before this Forum and it is to be dismissed with the cost of the 4^th opposite party.

Points :-

1.   Whether the complainant is maintainable or not.

2.   Whether there is deficiency in service on the side of opposite parties.

3.   Relief and cost.

There is no disputes that the complainant is the owner of Tata Safari Dicor EX model Passenger Car vide Reg.No.KL-02 Z 9925 which is hypothecated with the 2^nd opposite party and also the said car is registered as tourist tax. Opposite parties 1 to 3’s contentions

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that as stated in the complainant that the car was purchased by the complainant for making a livelihood is false. According to opposite parties the complainant is doing real estate business and also he owns many shop room which are rented out. Opposite parties also

denied the averment of the complainant that the he was regularly remitting the installments. The compliant was a chronic defaulter committed gross default in remitting the payments in accordance with the terms of the agreement. According to the complainant he was regulary remitting the installment up to 09/09/08 with regard to that opposite parties 1 to 3 contended that at the time of remitting the installment on 09/09/08, the complainant had defaulted 4 installments. According to the complainant on 27.10.2008 the goondas of the opposite parties with the help of the police illegally and by using force seized the vehicle from the custody of the complainant. The said contention is also denied by the opposite parties. That after committing default in payment of the installments, the complainant tried to transfer the vehicle to strangers without making the payment to the opposite parties. Then they filed petition before the police station and police authorities

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seize the vehicle from the complainant and handed over to the opposite parties. Even after repeated request both by written and orally to the complainant to close the liability release the vehicle the complainant did not even cared to approach the opposite parties.

According to them as per agreement they have every right to take back the hypothecated asset if there is default in the payment. They had exercised the said right through the due process of law.

According to the opposite party the complaint is not a consumer within the meaning of Sec. 2(1) d of the Consumer Protection Act 1986. Here it is not disputed that the complaint has availed a loan of Rs.5.71000/- from 2^nd opposite party. Complainant’s contention that the tourist taxi car was purchased by the complainant for seeking a livelihood. There is no dispute that the complaint is the registered owner of the vehicle.

Section 2 (1) (d) defines consumer “ means any person who buys any goods for a consideration which  has been paid or promised or partly paid and partly promised or under any system of

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deferred payment and include any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approved of such person

but does not include a person who obtains such goods for resale or for any commercial purpose or (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 service for consideration paid or promises or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the first mentioned person.

Explanation:-   For the purpose of sub-clause (1) “ commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by  mean of self – employment.

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It is argued by the opposite party 1 to 3 that complainant is not a consumer and according to opposite party the tourist car was purchased for commercial purpose and not for earning a livelihood by self-employment. It has come in evidence that the complainant            

has many shop at Pallimukku Junction which are rented out and the tourist car was driven by one of his relative Islamudeen. Complainant also deposed that he has not badge for denying the tourist vehicle. It is obvious from the complainant’s evidence that he was not denying the tourist car for the purpose of earning livelihood by means of self employment. It is obvious that the purchased the tourist taxi for commercial activity with a view to earn large profits and such he cannot be said to be a consumer within the meaning of Section 2 (1) (d) of Consumer Protection Act 1986. Therefore he cannot be regarded as a consumer entitled to seek any relief under the provisions at this Act and this complainant is not maintainable before the Forum point found accordingly.

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The next point to be decided is that whether the car has been seized illegally from the custody of the complainant by the goonda as hired by the  bank with the help of the police. From the evidence it has come out that at the time of seizing there was four installment dues ie; about Rs.79000/- with the interest and penal

interest. The complainant also admits that the vehicle was seized by the policemen. As per the condition in the agreement the opposite parties have every eight to take back the hypothecated asset if there is default in the repayment without a complainant, before the police authorities. Normally without a complaint police never seize a vehicle. As per clause 17. 2 (3) of the requirement the opposite party have right to sell the hypothecated vehicle and as per clause 18 of the agreement the net proceeds of the sale shall be applied by the bank at its absolute discretion in the manner if it thinks fit. Ent.D4 shows that the opposite parties had issued registered notice to the complainant to close the liability.

        From the available evidence we find that there is no deficiency in service on the side of opposite parties and the case is not

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maintainable as per sec.2 (d) (1) of Consumer Protection Act. More over the temporary injunction granted against the 4th opposite party is vacated.

In the result the complaint fails and is dismissed without cost.

                                Dated this the 29^th day of December 2010.

Adv.Ravi Susha               :Sd/-

Vijayakumar                    :Sd/-

INDEX

List of witnesses for the complainant

PW1                             - Salim

List of documents for the complainant

P1                                - RC Copy

P2                                - Order Form

P3                                - Installment receipts (18 in nos.)

P4                                - Sale letter

P5                                - Bank letter

List of witnesses for the opposite party

DW1                             - Niran Viswananth

List of documents for the opposite party

D1                                - Attested copy of power of attorney

D2                                - Loan Agreement

D3                                - Copy of loan recall letter dtd: 02.09.08.

D4                                - Copy of pre sale letter

D5                                - Copy of post sale letter dtd: 02.12.08.

D6                         - Certified account statement

// Forwarded by Order //

                                                                                       Senior Superintendent