Karnataka

Bagalkot

CC/32/2016

Revayya S/o Gangadhar Hosamath - Complainant(s)

Versus

The Manager,The Indusind Bank ., - Opp.Party(s)

B K Patil

09 Jun 2017

ORDER

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) seeking order to Ops to handover vehicle in favour of complainant, Rs.1,00,000/- towards compensation, mental agony and Rs.20,000/- towards cost of this litigation.

2.    The brief fact of the case are as follows:

The complainant has purchased the vehicle for transport purpose and complainant has availed the loan from OPNo.1 through the OP No.3 and purchased one vehicle of Ashok Leyland 3116 and after purchase of said vehicle, the R.C. Book has been issued as KA 29, A-6197 and with an agreement of payment monthly installment of EMI’s regularly. The complainant further stated that due to his financial problems not paid installment amount. On 02.02.2015 complainant vehicle went to Mangalore to unload the cement bags after the unloading, the other agencies has seized the said vehicle without intimating either to the owner or to the driver of the said vehicle. Thereafter, complainant registred to OP to return back his vehicle and requested to Ops that to refinance or to grant the enhanced loan so that the outstanding loan amount can be adjusted in the bank itself and after adjusting the vehicle can be released, but Ops have not responded, complainant. The complainant stated that complainant is fully depending upon the vehicle’s carrying and due the seizes of vehicle, the complainant is incurring the heavy loss of daily Rs.5,000/- to Rs.10,000/-. Hence, the Hon’ble Forum be pleased to direct the Ops to pay Rs.1,00,000/- as mental agony to the complainant. The complainant has incurred the loss of Rs.5,00,000/- to Rs.6,00,000/- and the complainant prays the Hon’ble Forum in this regard he had filed a Complaint in CC No.86/2015 before this Forum and the said complaint was returned back on the point of jurisdiction. Now the complainant has served the legal notice to OP No.3. Hence, Forum be pleased to admit the said Complaint on the jurisdiction point.

3.      After receipt of notice, OP appeared through his counsel and filed objection denied the entire contents of the Complaint are false and vexatious and deserves to be dismissed u/s 26 of the Act.  The Hon’ble Forum is not having territorial jurisdiction to try and decide the matter as the complainant has availed loan from the Indusind Bank, Bangalore and the loan account of the complainant was there in Belagavi branch. Hence, the complainant can file this Complaint either in Bangalore or Belagavi. Simply by making Bagalkot branch as partly jurisdiction cannot be dragged. There is no jurisdiction as well as cause of action to file this Complaint before the Forum. Hence, purely on jurisdictional point itself the present Complaint deserves to be dismissed.

4.      The complainant admits that he has purchased the vehicle for transport purpose and due to off season he failed to pay EMI’s. It shows that the vehicle was using purely for commercial purposes and the Hon’be Forum is not having jurisdiction to try and decide the matter related to a commercial vehicle. Hence, the Complaint needs to be dismissed.

5.      Ops also submitted that many times the Bank authorities have personally visited complainant and asked him to pay the installment as well as overdue amount. But the complainant neither positively approached the bank nor made the payment and the Bank authorities have issued several notices regarding payment of pending/unpaid installments, asking the complainant to pay the due amount at that time and asked to handover the vehicle to the Bank if payment of arrears is not possible. But the complainant neither paid the dues nor did handover the vehicle to the Bank. He completely and deliberately neglected the requests of the Bank and committed breach of contract.   

6.      OP No.2 has issued notice to complainant intimating the fact of repossession and asked the complainant to pay Rs.16,06,000/- as on 13.02.2015 towards full and final settlement and further intimated that if within 1 days from the date of notice the complainant has to make payment of the settlement amount otherwise the vehicle, which was repossessed will be sold at public auction as per the terms and conditions contained in the loan agreement without further notice and the bank will realized he amount towards the outstanding amount.

7.      Ops further states that the National Consumer Commission in many cases clarified that the vehicle which is hypothecated, is property of the institution, who’s hypothecation is made. Unless the hypothecation is cancelled, purchaser cannot get any right over that vehicle. Hence, the OP Bank has full right over the said vehicle. That there is no cause of action to file the present Complaint arose at any time against the OP. Further, the complainant is not entitled to any relief/claim as prayed for against Ops. Hence, OP prayed that this Forum be pleased to dismiss the present Complaint.     

8.      To prove the case of the complainant, the complainant himself examined as PW1 and he got marked the documents as per EX P1 to P3 and closed their side of evidence. The OP himself examined as RW-1 and has got marked documents as per EX R1 to R4 and closed their side of evidence.

9.      On the basis of the above pleadings, the following points of determinations are as follows:

1. Whether complainant is a consumer?
2. Whether the Ops have proved the complainant’s vehicle has using commercial purpose?
3. Whether the complainant proves that there is deficiency in service on the part of the Ops?
4. Whether this Complaint has jurisdiction to entertain the Complaint?
5. What order?

        10.    Our findings on the above points are as under:

          Point No.1:-         In the negative,

          Point No.2:-         In the affirmative,

        Point No.3:-       In the negative,

          Point No.4:-         In the negative,

         Point No.5:          As per the final order for following.

 

-: R E A S O N S :-

 

          11.    POINT NO.1 and 2 :- The complainant in his Complaint and his evidence itself admits that he had purchased the vehicle for transport purpose and due to off season, he failed to pay EMI’s it means vehicle was using for commercial purposes. When the goods or vehicle are bought for resale or for any commercial purposes, as the complainant has using the said vehicle for commercial purpose. Hence, complainant is not a consumer as he bought this vehicle for transport purpose. To support this case, decision of 2014 (2) CPR 691 NC, the important points are as hereunder:

 

      “Commercial users cannot consumer Complaint these pertain to the amendment Act, 62 of 2002 of C.P. Act 1986 which was bought in force w.e.f. 15.03.2003 the earlier explanation was the inserted by Act 50 of 1993, there was remarkable change in definition of consumer as it stood at the time of filing this complainant”.

          Accordingly, he cannot get the benefit of C.P. Act, 1986. Hence, we answer the Point No.1 and 2 in negative.

          12.    POINT NO.3: The complainant admitted that the loan agreement was entered between the complainant and OP the vehicle was seized at Mangalore to unload the cement bags after unloading the other agencies vehicle was seized without intimating either to the vehicle owner or driver.

          13.    To prove the Written Statement, the RW1 has reiterated in his evidence, legal notice to the customer and guarantor and final notice to the borrower and guarantor after repossession marked as EX R1 to R3. Further, it is submitted that the loan agreement was entered between the complainant and the OP, when he fails to produced documents, OP shows any witness showing that the vehicle was seized other agencies without intimate believing his version with respect to other agencies seizing of vehicle is not justifiable one. Looking to the documents filed by both the parties, it appears that the vehicle in question was purchased by complainant after obtaining financial assistance from the OP. One Loan-cum-Hypothecation Agreement was executed between the complainant and Ops and it is also established that the complainant had defaulted in making payment of regular installments. Therefore, the Ops are entitled to repossess the vehicle. Hence, there is no deficiency in service on part of Ops. Accordingly, it is dismissed as not maintainable.

          14.   POINT NO.4:  In this Complaint, both Ops are reside at different places. Op No.1 is resides at Bangalore and OP No.2 reside at Belagavi. The complainant has availed loan from the Indusind Bank, Bangalore and loan account of the complainant was there in Belagavi Branch. In CC No.86/2015 ordered on 28.10.2015 contents of Sec. 11 of C.P. Act, 1986 and rejected the Complaint. Now in this Complaint, the complainant has made OP No.3 as party, simply by giving a notice which is not at all related to OP No.3 and invoked the jurisdiction. On analyzing the Complaint is height of above provision. It is crystal and clear that the Ops are residing Bangalore and Belagavi and the cause of action occurred there only. Forum has no territorial jurisdiction to entertain the Complaint and the District Forum observed the above said point of consideration Section 11 (1) (2) is not attracted in this Complaint for jurisdiction purpose. Accordingly, it is dismissed as not maintainable.                       

          15.  On the basis of the above findings, we proceed to pass the following:

 

:: ORDER ::

 

1. The complaint is dismissed without cost.
2. The Complaint of the complainant is directed to approach the proper Forum.  

    3) Send a copy of this Order to both parties free of cost.  

 

                        

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 09^th day of June, 2017)

 

(Smt.Sharada.K)         President.

(Smt.S. C. Hadli)               Member.                 Lady Member.

(Sri.Shravankumar.D.Kadi             Member.