The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Collection Manager, HERO FINCORP LTD., Sahadevkhunta, Balasore and O.P No.2 is the General Manager, HERO FINCORP LTD., Basant Lok, Vasant Vihar, New Delhi.
2. Factual matrix of the dispute is that the Complainant had purchased a “Pleasure” from Neelam Motors Pvt. Ltd., Balasore on 25.09.2014 being financed by O.Ps and the Complainant handed over 24 numbers of cheque before O.P No.1, which the O.P No.1 deposit the said cheque regularly for repayment of loan amount. But, on 17.03.2016, one agent of O.P No.1 Sri Tapan Mahalik came to the Complainant and informed that balance is insufficient for cheque and collected Rs.2,200/- (Rupees Two Thousand two hundred) only vide Receipt No.1687414, book No.65466, dt.17.03.2016. Thereafter, the O.P No.1 had deposited cheque on 19.03.2016 and a sum of Rs.2,174/- (Rupees Two Thousand one hundred seventy four) only is deducted vide cheque No.106417 of Odisha Gramya Bank, which the Complainant brought to the knowledge of O.P No.1, but O.P No.1 did not pay any heed to it. The Complainant was not a defaulter, there by such type of activities by O.P No.1 being mentally shocked, intimated the same to O.P No.2 through Advocate notice. Lastly on 19.09.2016, the Complainant along with his father had been to O.P No.1 and narrated the above facts, but O.P No.1 avoided, causing mental agony and harassment to the Complainant by the O.Ps. The Complainant has prayed for compensation imposing double amount in a month and for mental agony and litigation cost.
3. Written version filed by the O.Ps through their Advocate, where they have denied on the point of maintainability, Consumer as well as its cause of action. The O.Ps have further submitted that the Complainant had approached the O.Ps for a Loan of Rs.41,000/- (Rupees Forty one Thousand) only from the O.Ps and due verification and scrutiny of documents, the O.Ps sanctioned the above mentioned loan amount and the Complainant and the O.Ps entered into a Loan-cum-Hypothecation Agreement No.BSRTWL0010000118256 (hereinafter referred to as “the said Agreement”) for purchasing a Hero Honda Pleasure Motor Cycle (hereinafter referred to as “the said vehicle”) bearing Regd. No.OD-01E-9392 and had agreed upon all the terms and conditions of the said Agreement, inter-alia agreeing to repay the loan in 24 instalments amounting to Rs.2,174/- (Rupees Two Thousand one hundred seventy four) only starting from 08.11.2014 to 08.10.2016. Moreover, exercise of rights under Loan-cum-Hypothecation agreement cannot be construed as unfair trade practices and any act of the O.Ps in terms of said agreement cannot be termed as unfair trade practice or deficiency of service and as per Law laid down, the Complainant does not fall within the definition of Consumer and the relationship between the Complainant and the O.Ps is that of borrower and the lender. As such no Consumer dispute arises. Any dispute and/ or difference and/ or claims arising under this agreement or any matter incidental thereto shall be subjected to New Delhi jurisdiction and the lender shall have all the legal remedies including Arbitration and Conciliation Act, 1996 and rules there under or any statutory amendments thereof. Choosing of the legal remedies will be the sole discretion of the lender. The present Complainant is guilty of suppression of facts and malicious misrepresentation as he nowhere cared to inform this Hon’ble Forum that he is at default for not complying with his responsibilities and duties prescribed under the Law and agreed to by the loan agreement and he has approached this Forum with non-sustainable prayer basing upon a non-existent claim. The O.Ps have further submitted that in case of Hypothecated vehicle the law is well settled that the ownership lies with the Financer till the last E.M.I is paid. Therefore, the O.Ps have all right to repossess the vehicle and sale it to secure its outstanding dues against the borrower, the O.Ps can exercise the right of repossession by virtue of the Agreement and same cannot construed as deficiency-in-services or unfair trade practice. Moreover, the repayment period of the above said loan was till 08.10.2016, but as on date there is an outstanding of Rs.13,044/- (Rupees Thirteen Thousand forty four) only towards unpaid instalments and Rs.5,324.73 ps. (Rupees Five Thousand three hundred twenty four and seventy three paisa) only towards late payment/ other charges.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In view of the above averments of both the Parties in order to substantiate their claim, they have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that after payment of Rs.2,200/- (Rupees Two Thousand two hundred) only to the agent of the O.P No.1 on his request due to insufficient balance in the account of the Complainant for cheque encashment, another sum of Rs.2,174/- (Rupees Two Thousand one hundred seventy four) only was deducted vide cheque No.106417 of Odisha Gramya Bank and when it was brought to the notice of the O.Ps, they did not pay any heed to it. The Complainant was not a defaulter, there by such action of O.Ps causes mental agony and harassment, for which the Complainant took the shelter of this Forum praying for compensation for mental agony and litigation cost. On the other hand, it has been argued on behalf of the O.Ps that the Complainant has availed loan of Rs.41,000/- (Rupees Forty one Thousand) only from the O.Ps for purchase of a Hero Honda Pleasure Motor Cycle and it was hypothecated and accordingly, 24 instalments to be paid @ Rs.2,174/- (Rupees Two Thousand one hundred seventy four) only per month starting from 08.11.2014 to 08.10.2016. So, the Complainant is not a Consumer and furthermore, there is outstanding of Rs.13,044/- (Rupees Thirteen Thousand forty four) only towards unpaid instalments and Rs.5,324.73 ps. (Rupees Five Thousand three hundred twenty four and seventy three paisa) only towards late payment/ other charges. So, this dispute does not come under purview of Consumer dispute. In support of their argument, the Advocate for O.Ps have relied upon the Authority of Hon’ble State C.D.R Commission, Odisha, Cuttack in Consumer Case No.43/2010 in the case of Sushanta Kumar Acharya (Vrs.) Magma Financial Corporation Ltd., where in it has been held that while Finance Company-O.Ps is claiming more and the Complainant is stating that he is to pay the lesser amount, this being purely an accounts dispute between the Parties, so the Consumer Fora or the State Commission cannot decide this case. Furthermore, the Authority reported in III (2006) CPJ-247 (N.C) in the case of Ram Deshlahara (Vrs.) Magma Leasing Ltd., where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that under a hire-purchase transaction, the financier does not render any service within the meaning of Consumer Protection Act, 1986 and the Petitioner is, thus, not a Consumer. Again, the Authority reported in 2015 (4) CPR-148 (N.C) in the case of Sunny & Ors. (Vrs.) Rajesh Tripathi, where in it has been held by the Hon’ble National C.D.R Commission, New Delhi that Financing and advancement of loan does not fall within purview of facility in connection with banking, transport etc. as mentioned in Section-2(o) of C.P Act, 1986 and in such circumstances, Complainant does not fall within purview of Consumer.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principles laid down by the above Authorities as discussed earlier, this Forum come to the conclusion that the Complainant is not a Consumer under the O.Ps, for which he is not entitled to get any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without any cost.
Pronounced in the open Forum on this day i.e. the 25th day of September, 2017 given under my Signature & Seal of the Forum.
