Order No. 47 Dt. 26.04.2018
Brief facts of the complaint case are that the complainant purchased one HCV Vehicle having Chases No.MAT448030 B7P53705 Engine No.BS91803111L84031958 from the Opp. Party no. 3 after due approval of advance from Opp. Party No. 2, Indusind Bank Limited, Malda Branch with a maximum advance limit of Rs. 1400000/-. The date of agreement of advance was duly executed on 29.12.2011 and after execution of agreement on 04.01.2012 the vehicle being No. WB59A7597 was delivered by the O P No. 3 to the complainant. On 04.02.2013 all on a sudden the O P No. 2 in presence of O. P. Nos. 3 and 4 forcefully lifted the vehicle and took re-possession of the vehicle. The complainant regularly paid installment amount of Rs. 42270/- to the O P No. 2 and never refused to pay installments. But O. P No. 2 tried to squeeze more money from the complainant and the complainant finding no other alternative had to defer payment in some occasions but he never refused to pay installments. The vehicle was duly insured with Pro O.P No. 4, Cholamandalam General Insurance Co. Ltd. The said vehicle was the only source of income of the complainant. Such forceful repossession of the vehicle No.WB59A7597 by the O.P. Nos. 1 and 2 caused acute mental agony to the complainant and livelihood of the complainant is at stake and the complainant is passing his days in starvation. Accordingly, the complainant has filed the instant case seeking return of the vehicle in good condition or in the alternative to refund the amount of Rs.1400000/- from O.P. Nos. 1 and 2 and Rs. 20000/- towards compensation from O.P. Nos. 1, 2 and 3 for harassment and mental agony caused to the complainant and cost of the litigation etc.
O.P. Nos. 1,2,3 and 4 entered appearance and contested the case by filing three separate written versions wherein the material averments made in the complaint have been denied and it has been contended inter alia that the instant case is not maintainable. It has been contended by O.P. Nos. 1 & 2. that the complainant is not a ‘Consumer’ as defined u/s. 2 (1)(d) of the Consumer Protection Act, 1986. It has been further stated by O.P. Nos. 1 and 2 that the complainant purchased the commercial vehicle being No. WB 59A/4556 after getting loan from the O.P. Nos. 1 and 2 vide Loan Contract No. WD002764H and entered into an agreement and as dispute arose the complainant approached to the Calcutta High Court and the Hon’ble High Court was pleased to pass an order directing the complainant to pay the dues on compromise on 27.01.2015. It has been denied by the O.P. Nos. 1 &2 that repossession in respect of Truck No. WB 59A/7597 was never made at any point of time by the O.P. Nos.1 and 2 and the alleged vehicle inventory list dt. 04.02.2013 is a fabricated document produced by the complainant for his wrongful gain. It has been further stated by the O.P. Nos. 1 and 2 that there is no material to substantiate the claim of the complainant and accordingly the case is liable to be dismissed.
The O.P. No.3 has submitted a separate written version wherein it has been stated that O.P. No. 3 is a dealer and had delivered the vehicle in question on 04.01.2012 along with all documents to the complainant and O.P. 3 has already got the consideration money of the vehicle partially from the down payment and the rest from the financer and its interest in the vehicle is over. It has been further stated by the O.P. No. 3 that the allegations brought by the complainant against the O.P. No.3 are totally false and baseless and the complainant has falsely implicated the O.P. No.3 without having any cogent reason and as such the instant case is liable to be dismissed with cost.
The Pro forma O.P. No. 4 has submitted a separate written version wherein it has been stated that the O.P. No. 4 is an Insurance Company and he admitted the insurance of the vehicle bearing No.WB 59A/7597. It has been stated by the O.P. No. 4 that there is no deficiency of service against Pro forma O.P. No.4 and he is not aware of forceful possession or re-possession of the vehicle by the O.P. Nos. 1 2 and 3. It has been further stated by O.P. No.4 that he has been wrongly implicated in this case and accordingly he prays for dismissal of the case against O.P. No.4 with cost.
Complainant has submitted examination in chief supported by Affidavit and complainant is cross-examined in full by the O.Ps. Complainant submitted certain documents i.e. Xerox Copy of Repossession of inventory and Xerox copy of certain receipts in respect of payment of installments to the O.P. No. 2 Indusind Bank. Complainant submitted written notes of argument.
O.P. Nos. 1 and 2 submitted the copy of writ application being W.P. No. 16019(W) of 2014 and order of Hon’ble High Court, Calcutta passed on 27.01.2015 and certain documents. O.P. Nos. 1 2 and O.P. No.3 and O.P. No. 4 submitted written notes of argument.
:POINTS FOR DECISION:
On the basis of pleadings of both parties the following points are fixed for determination:-
- Whether the complainant is a Consumer within the meaning u/s. 2(1)(d) of Consumer Protection Act, 1986?
- Whether there is any deficiency of service on the part of O.P. Nos. 1, 2 and 3?
- Whether the complainant is entitled to get relief/ reliefs as prayed for?
::DECISION WITH REASONS::
Point No. 01
This is the case of the complainant that he purchased one HCV vehicle having Chasis No. MAT448030B7P53705, Engine No. BS91803111L84031958 from O.P. No. 3 after due approval of advance from O.P. No. 2, Indusind Bank Ltd., Malda Branch with a maximum advance limit of Rs. 1400000/- and the date of agreement of advance was executed on 29.12.2011 and after execution of agreement on 04.01.2012 the vehicle being No. WB95A7595 was delivered by the O.P. No. 3 to the complainant. The further case of the complainant is that on 04/02/2013 all on a sudden the O.P. No.2 in presence of O.P. Nos. 3 & 4 forcefully lifted the vehicle and thus took re-possession of the vehicle in question.
It has been asserted by the complainant that he has regularly paid instalment amount of Rs. 42270/- to the O.P. No.2 but O.P. No. 2 tried to squeeze more money from the complainant and as such the complainant had to defer payment in some occasions but he never refused to pay instalments. The vehicle in question is the only source of income of the complainant and due to forceful repossession of the vehicle by the O.P. Nos. 1 and 2 livelihood of the complainant is at stake and the complainant is passing his days in starvation.
The O.P. Nos. 1 and 2 have contested the case by filing a written version wherein it has been categorically contended that the complainant is not a ‘Consumer’ within the purview u/s 2(1)(d) of Consumer Protection Act, 1986 and as such he is not entitled to seek any relief before this Forum. In support of their contention the O.P. Nos. 1 and 2 have submitted one writ application being No. 16019 of 2014 filed by the complainant before the Hon’ble High Court, Calcutta relating to the Vehicle No.WB59A 4566 against the O.P. Nos. 1 and 2 Indusind Bank Ltd. claiming that despite making payment for repayment of loan amount all on a sudden on 28.04.2014 the O.P. Bank forcibly took possession of the said vehicle. O.P. Nos. 1 and 2 also submitted the copy of the order of Hon’ble High Court, Calcutta wherefrom we find that the said writ petition was disposed of by the Hon’ble High Court, Calcutta on 27.01.2015 as both parties agreed to settle the matter. On perusal of the writ application as well as the order of Hon’ble High Court, Calcutta it is clear that beside the vehicle in question complainant has another vehicle bearing No.WB 59A 4556 in his possession which was used by the complainant for commercial purpose. But this fact was not disclosed by the complainant in his complaint petition. So it cannot be held by any stretch of imagination that the complainant is the owner of the only disputed vehicle or that the vehicle in question is the only vehicle which was used by the complainant for earning his livelihood by way of self employment rather we find that complainant has more than one vehicle / truck in his possession and he used the truck in question for commercial purpose. Complainant has not come before this Forum with clean hands rather he suppressed the material facts. So it cannot be held that the complainant is a ‘Consumer’ within the meaning u/s 2 (1)(d) of the Consumer Protection Act, 1986
In view of above discussion this Forum is of the view that the complainant is not a consumer. Thus Point No. 1 is decided against the complainant.
When the point no. 1 is decided against the complainant this Forum is of the view that the other points are not required to be discussed.
In the result the case fails.
Proper fee paid.
Hence ordered
that the D.F.C. Case No. 88/2014 be and the same is hereby dismissed on contest without cost against all the contesting O.Ps.
A copy of the order be given to both the parties free of cost.
