The Proprietor,M.G.B.Automobiles P.Ltd. V/S Maqbul S/o Khasim Sab - Consumer Court Case

Karnataka

Raichur

CC/09/15

Maqbul S/o Khasim Sab - Complainant(s)

Versus

The Proprietor,M.G.B.Automobiles P.Ltd. - Opp.Party(s)

T.M.Swamy

21 Dec 2009

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/09/15

Maqbul S/o Khasim Sab						...........Appellant(s)
Vs.
The Proprietor,M.G.B.Automobiles P.Ltd. M/s Indusind Bank Ltd. The Chief Manager, The Manager,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Maqbool against Respondents (1) The Proprietor MGB Automobiles Private Ltd., Raichur (2) M/s. Indusind Bank Ltd., represented by its PA Holder Ms. D. Meera- Chennai, (3) The Chief Manager Indusind Bank Ltd., Bangalore and (4) The Manager Indusind Bank Ltd., vehicle finance division, Raichur. The brief facts of the complaint are as under: The complainant availed loan from Respondents for the purposes of purchase of Three wheeler goods vehicle (MiniDor) Pick up model 2006 bearing chassis No. TI 5003105A06, Engine No.D36017524 and its registration No. KA-36/5579. The said vehicle has been purchased from the Respondents in the month of May 2006 for his livelihood by way of self employment with the financial assistance of the Respondents under Loan Agreement No. KLAA00227 dt. 24-05-06 for Rs. 1,20,000/- to be paid within three years i.e, as on 21-03-09 in total Rs. 1,62,000/- including finance charges of Rs. 36,000/- and Rs. 6,000/- as insurance deposit, the monthly installments of Rs. 4800/- agreed to be paid by the complainant. The Respondent No-1 is the dealer for Bajaj limited products for having interlinked with the Respondent No-2 & 3. The Respondent No-2s registered Head office is situated at Pune and retail banking division being run at Chennai, the Respondent No-3 is the state office of the Respondent No-2 and the Respondent No-4 is the Branch Office of Respondent. Further it is the case of the Respondents that the cost of the vehicle was Rs. 1,44,000/- as per Invoice dt. 17-05-06. The complainant availed only Rs. 1,20,000/- as loan from Respondents 2 to 4 and has paid Rs. 24,000/- as margin money, Rs. 4,800/- as EMI Rs. 3,500/- documentation charges and Rs. 750 as TP charges to one Amaresh who is sales representative of Respondent No-1. The margin amount of Rs. 24,000/- was paid in two installments i,e. on 10-05-06 and 15-05-06. The complainant in all paid Rs. 62,500/- from 24-05-06 to 04-12-06 to Respondent No-4 towards his loan installments. However due to financial crisis he defaulted for payment of three installments and not able to pay the same in time to the Respondents. Therefore the Respondents No- 2 to 4 have illegally seized the vehicle of complainant in the first week of March 2007 without issuing any seizer notice, despite complainants protest for seizer. Further it is the case of the complainant that he has approached the Respondent No-4 and requested to release the said vehicle as he is depending upon the said vehicle for his livelihood and would try to pay the due installments out of income of the said vehicle but the Respondents turned deaf year for such request of complainant, thereafter the Respondent No-3 got issued two notices dt. 13-03-07 and 15-03-07 to complainant directing him to pay the due installments as the complainant depended solely upon the income of the said vehicle for repayment, not paid the dues to illegal seizer by the respondent No-4 without prior notice. The Respondent No-2 all of sudden issued notice dt. 13-08-08 intimating the complainant about initiation of arbitration proceeding against him and his guarantor for an amount of Rs. 96,770/- as on 19-11-08 through their arbitrator and the arbitrator in turn has sent case summons in Arbitration Case No. 2602/L dt. 15-12-08 for the appearance of the complainant and guarantor on 02-01-09 at 4-00 PM at Chennai for first hearing, thereafter the arbitrator on 02-01-09 issued another notice to both complainant guarantors to make written submissions and documents before him on 06-02-09 at 4-00 Pm at Chennai. Since the complainant who is struggling for his square meals, is not in a position to attend the proceedings. Further it is the case of the complainant that from the said vehicle the complainant has to use to earn Rs. 10,000/- per month and after deduction of all expenses were and tear, he used to say the amount about Rs. 4,500/- per month but due to illegal seizer the complainant sustained the loss of earnings of the above said amount since March 2007 i.e, from the date of seizer. Further he has contended that even after receipt of the first notice again requested Respondent No-4 for return of vehicle and also enquired for payment of dues but shocked to know he learnt that the said vehicle was sold at lowest price of Rs. 40,000/- of which not at all made known to complainant by the Respondent 2 to 4 till this day. The very seizer of the vehicle being unlawful without issuing any prior notice and subsequent initiation of Arbitration proceedings at their choice of jurisdiction at Chennai is nothing but unfair trade practice and deficiency in service on the part of Respondents 2 to 4. Hence he prayed for necessary direction against the Respondents to settled the claim of complainant in accordance with law by compensating the loss of earning of the complainant since March 2007 to till realization and award the compensation for mental harassment and hardships suffered by the complainant due to illegal seizer of his vehicle and any other relief and cost of the proceedings. 2. The Respondent No-2 Bank represented by its G.P.A. holder by name Nikil D Shirali, appeared through counsel and filed the written statement as under: The Respondent 3 & 4 have adopted the written version of Respondent No-2 by filing memo dt. 12-05-09. The complainant has not taken steps against the Respondent No-1. Hence the claim against the Respondent No-1 is dismissed as steps not taken. The Respondent No-2 in his written version has contended that the complainant is running a business of MiniDor goods vehicle for commercial purpose and he has purchased the vehicle by executing loan cum hypothecation agreement for transportation business to fly it for commercial purpose hence this complainant is not a consumer with in the meaning 2(1)(d) of C.P.Act. The dispute raised by the complainant cannot be adjudicated by this Honble Forum. The relation between the complainant and the Respondents 2 to 4 is that of a borrower and creditor hence the complainant is not a consumer within the provision of CP Act. The transaction is commercial purpose hence this Forum has no jurisdiction to entertain the complaint, the dispute in question is purely civil in nature. The complainant in his complaint no where mentioned as to how much interest where being paid to the Respondents, whether the complainant has cleared all the loan amount payable to the Respondents 2 to 4. Further it is contended that the complainant has not cleared entire loan therefore the Respondents invoked the agreement condition at 15.9 and the vehicle was seized to execute the right over the vehicle as per loan cum hypothecation agreement on 19-03-07 and after seizer of the vehicle the complainant was intimated to clear of the due amount to get release the vehicle. The complainant has not shown any interest for the repayment of due amount to get release the vehicle. The vehicle which was seized by the complainant was sold in open auction for an amount of Rs. 40,500/- on 29-11-07 all these transactions are within the knowledge of the complainant. Further it is contended that after auction sale of the vehicle the arbitration proceedings has been initiated against the complainant and guarantor in turn the arbitrator has issued notices but the complainant has not shown any interest to appear before the arbitrator at Chennai this clearly shows how negligent the complainant and guarantor once the arbitration proceedings are being initiated by invoking clause No. 23.0 in the loan cum hypothecation agreement, regarding law, jurisdiction and arbitration this Honble Forum has no jurisdiction to entertain the complainant and also stay the arbitration proceedings which are already being initiated at Chennai. Further it is contended that the complainant is due in a sum of Rs. 96,770/- to Respondents 2 to 4 but in order to harass and to dupe the said huge money the complainant has filed the false complaint before this Forum further it has contended that the vehicle was seized on 19-03-07 auction was conducted on 29-11-07 under intimation to the complainant this complaint is filed at the belated period of 20 months is not been explained in the complaint. Further contended that this Forum has no jurisdiction to entertain the complaint as the complainant has agreed and signed the agreement wherein it is clearly mentioned in case any dispute arose the same shall be rectified before the Arbitrator Chennai and hence for all these reasons the Respondents prayed for to dismissal against the Respondents 2 to 4. 3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked in all (14) documents at Ex.P-1 to P-14. In-rebuttal the G.P.A Holder Respondents 2 to 4 Bank by name Nikhil D. Shirali, Branch in charge Hubli, has filed his sworn-affidavit as evidence and has got marked three documents at Ex.R-1 to & R-3. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency of service against the Respondent, as alleged? 2. Whether the complainant proves that the complaint of the complainant is maintainable as there is a Arbitration proceedings pending before the arbitrator at Chennai as contended by the Respondents.? 3. Whether the complainant proves that the complainant is a Consumer as per section 2(1)(d) of C.P. Act as contended by the Respondents? 4. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the affirmative. 2. In affirmative. 3. In affirmative. 4. As per final order for the following. REASONS POINT NO.1:- 6. There is no dispute that the complainant had obtained loan from Respondents 2 to 4 Bank for the purchase of Minidor Pick up Model 2006 goods vehicle bearing chasis No. T15003105A06 Engine No. D36017524 and registration No. KA-36/5579 under the loan agreement No. KLAA00227 on 24-05-06 for an amount of Rs. 1,20,000/-. Further it is also not in dispute about the seizer of the vehicle by the Respondent and due in installments and pendency of arbitration of proceedings at Chennai. 7. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondents 2 to 4 it is very clear that the Respondent Bank has raised following points in their defence: 1. The vehicle of the complainant has been seized due to non payment of installments even inspite of several demands as agreed by the complainant. Before the seizer of the vehicle notices have been issued in respect of seizer of the vehicle. The complainant is having detailed knowledge about the seizer of the vehicle and its sale under auction. 2. The Respondent Bank immediately after the seizer of the vehicle notices have been issued regarding sale of the vehicle and after that the arbitration proceedings has been initiated at Chennai. The complainant and guarantor have been made party to that proceedings the arbitrator has also got issued notices in this regard this is known to the complainant. 3. During the pendency of arbitration proceedings by invoking the clause No. 23.0 in the loan cum hypothecation agreement regarding law jurisdiction and arbitration the complainant cannot approach this Consumer Forum for any relief and this Forum has no jurisdiction to entertain the complaint. 4. Since the complainant has purchased the vehicle for the purpose of transportation business to flight for commercial purpose he is not a consumer within the meaning of section 2(1)(d) of C.P. Act. Hence the Forum cannot adjudicate the matter in this regard. 8. The Respondent in order to substantiate the case and their defence as raised under the Point No-1, they have mainly depending upon the Ex.P-8, Ex.P-9 i.e, the information dt. 13-03-07 issued by Respondent Bank to the complainant and notice dt. 15-03-07 issued by the Respondent Bank to the complainant and a guarantor respectively and Ex.R-1, R-2 and Ex.R-3 i.e, loan agreement accounts extract and extract of vehicle registration. On perusal of the said two documents particularly i.e, Ex.P-8 no doubt through that document it is very clear that the Respondent Bank has sent the requisition to the complainant in order to repay the due amount and Rs. 250/- for visiting charges but it is not clear to whom it has served similarly regarding Ex.P-9, however the complainant has admits issuance of there two notices in his complaint at Para-4 but from the close perusal of Ex.P-8 it is very clear that the Respondent Bank is claiming Rs. 250/- towards cost for non payment of installments in due time visiting and charges. Further Ex.P-9 it also discloses that the total due amount which is to be payable by the complainant but it is not clearly shows that the said notice has been issued for the purposes of seizer of the vehicle. On perusal of Ex.P-9 the notice issued against the complainant and guarantor it is very clear that the said notice is issued after the repossession of the vehicle but not for information regarding the seizer of the vehicle or notice for seizer of the vehicle. The para-3 of the said Ex.P-9 is very clear that the vehicle has been repossessed by the complainant on blank dated and further reads as due to the tune of Rs. 1,28,654/- as on 15-03-07, further it reveals that the said notice has been issued both the complainant and guarantor to repay the amount aforementioned within ten days from the date of receipt of said notice, except that there are no other information regarding the vehicle is going to be seized, on the other hand it is very clear that it has been already seized. It is worthwhile to note here that no documents are produced by the Respondent Bank regarding issuance of prior notice in order to seize the vehicle. Under such circumstances we cannot hold that the defence taken by the Respondent regarding seizer of the vehicle after issuing the due notice holds no water. Further it appears that the Respondents have illegally seized the vehicle without any prior notice. In our view in the absence of any prior notice of seizer of the vehicle is nothing but an against the practice and procedure. From the pleadings of the parties, it is also very clear that at no point of time the complainant has voluntarily surrendered the vehicle to the Respondents, its clearly goes to show that the Respondents seized the vehicle forcibly and without any prior knowledge and seizer notice as contended by the complainant. Further it is also very clear from the para-8 of the written version that the seized vehicle has been sold for an amount of Rs. 40,500/- on 29-11-07 in open auction. As per the invoice i.e, Ex.P-2 the cost of the vehicle is Rs. 1,44,000/- as on 17-05-06 the sale of the said vehicle at an amount of Rs. 40,500/- is very less as contended by the complainant selling the seized without prior notice and consent of the complaint at such a lower rate by the Respondent is definitely loss to the complainant. This act of the Respondent will also nothing but an unfair trade practice and deficiency in service. Hence the contention of the Respondents under Point No-1, regarding their defence holds no water. Therefore the act of the Respondents is clearly goes to show that there is a deficiency on the part of the Respondents 2 to 4, in this regard, we have relied upon the rulings cited in 2009 CTJ 840 (CP) NCDRC of Honble National Commission, New Delhi in TATA Motors Ltd., V/s. Indrasena Choubey & Others and 2009 CTJ 992 (CP) NCDRC in HDFC Bank Ltd., Balvinder Singh and also the rulings submitted by the counsel for the complainant cited in I (2006) CPJ 46 NC in Sharma Finance Transport Co. Ltd., V/s. Surekha Khanoji Khemnar case and I (2007) CPJ 200 of Delhi Consumer Disputes Redressed Commission in Magma leasing V/s. Bharatsingh case. The gist of the above said rulings are seizer of the vehicle by not giving notice before possessing the vehicle nor any notice before making its sale is an instant justice which is not permitted in a civilized society having an effective rule of law this act of the financial institution is arbitrary, illegal and criminal. The rule of law should be prevails and not that off jungle where might is right. Further the above said rulings are clearly held that seizer of the vehicle for non payment of installments holds no good unless other wise intervention of court. In view of the findings and discussions on Point No-1, we answered Point No-1 in Affirmative. POINT NO.2:- 9. No doubt the Respondent has initiated the arbitration proceedings against the complainant and guarantor and immediately after the initiation of the arbitration proceedings the Respondent Bank has got issued intimation through letter dt. 13-12-08 under Ex.P-10, the same is also admitted by the complainant in his complaint. The Respondent has raised this point referred under Point No- 1 & 2 in his written version and further contended that because of pendency of arbitration case the complainant case is not maintainable before this Forum. The counsel for the complainant has vehemently argued on this point, stating that neither the complainant nor the guarantor have appeared before the arbitrator and mere initiation of the arbitration proceedings and pending of its result will not affect the rights of the complainant in approaching the Consumer Forum for the relief he sought under the complaint against the Respondent and in this regard he has relied upon the rulings cited in II (2006) CPJ 59 (NC) of Honble National Commission in Yashpal Marwaha V/s. Pushpa Builders Ltd., and another wherein the Honble National Commission and I (2008) CPJ 214 (NC) has clearly held that arbitration proceedings will not effect the rights of the complainant and oust the jurisdiction of Consumer Forum, in view of the above said rulings and contention of the complainant we have felt that there is no strong base on the defence of the Respondent regarding jurisdiction point in view of pending of arbitration case hence we have rejected the contention of the Respondent in that regard and answered Point No-2 in affirmative. POINT NO.3:- 10. The Respondents have raised strong objection regarding maintainability of the complaint before this consumer Forum as the complainant is not the consumer within the meaning of section 2(1)(d) of C.P. Act, because he has purchased the vehicle for the purpose of business of transportation and there is a relationship of borrower and creditor and the complainant is not a consumer in this meaning. From the perusal of the complaint more particularly at Para-4 the complainant he clearly stated that he has purchased the vehicle in order to earn his livelihood. No doubt from the pleadings of the parties the complainant is having only one vehicle apart from the vehicle in question, no other vehicles are having by the complainant. It is not the case of the Respondent that the complainant is having other vehicles other than the vehicle in question and further it is also not the case of the Respondent that the complainant is having transportation business with some other vehicles. Under such circumstances it cannot be said that the complainant is having transport business, of course the complainant is using the vehicle in question for his livelihood. In order to earn something for his livelihood, he has to charge something because of this we cannot hold that he is doing business as contended by the Respondent. Hence we held that the complainant is a consumer as per the section 2(1)(d) of C.P. Act because earning livelihood is quite different and doing a business is quite different. In this regard we have relied upon the ruling of Honble National Commission decision laid down in Ashok Ley Land Finance Ltd., & Others V/s. Ramjilal Gupta Case which was cited in CPJ 2008 (I) at Page No.40, which reads as under: - Contention, two vehicles purchased for commercial purpose and not for personal use__Contention not acceptable__Complainant possesses only one vehicle__Evem if he possesses two vehicle father and son could drive them for self-employment__Complainant consumer. Here in this case the complainant is having only one vehicle and using it for earning something for his livelihood. Therefore the dictum laid down by the Honble National Commission under the above said case is rightly applicable to the facts and circumstances of this case, so we hold that the complainant is a consumer and case of the complainant is maintainable before this Forum. Hence we answered the Point No-3 in affirmative. The Respondent counsel in order to defend his case under above all the points he has submitted rulings cited in ILR 2009 KAR Page 887, KCCA (3) 2006 KAR Page 1349 AIR 2002 SC Page 2402, 1995 (3) Page 293 and CPR 1993 (1) Page 392. The rulings cited by the Respondents are not at all applicable to the facts and circumstances of the case in hand, as the facts and circumstances under the said ruling are quite different from the present case of the complainant. Hence with great respect we have not considered the said rulings. POINT NO.4:- 11. The complainant has sought for direction against the Respondents to pay the loss of earnings of the complainant since from 2007 to till realization and award compensation for mental harassment and hardship suffered by him due to illegal seizer of the vehicle. The complainant in his complaint he has not clearly mentioned what was the loss he has suffered and what was the quantum of amount he was earning on a particular day but in his complaint at Para-5 he has contended that he was use to earn Rs. 10,000/- per month and after deducting expenses he used to save Rs. 4,500/- per month. But except this, no documents were produced in order to show about his earnings etc., no doubt the complainant vehicle is being used for transportation of goods etc., if we come to the conclusion that his earning is Rs. 200/- to 300/- per day it will be not less then Rs. 6,000/- to Rs. 9,000/-. Under such circumstances and in the absence of any receipts in this regard we can hold that the earnings of the complainants will be not less than Rs. 2,500/- per month after deducting the expenses. Hence we have hold that the loss the complainant by way of illegal seizer is Rs. 2,500/- per month. The Respondents have seized the vehicle in the month of March 2007 as per Ex.P-9. The same has been sold for an amount of Rs. 40,500/- this fact is very clear from the Para -8 of the written version. As per the invoice produced at Ex.P-2 the cost of the vehicle is 1,44,000/- if we deducted Rs. 40500/- it will be Rs. 1,0,3,500/- if we deduct 10% depreciation from the remaining amount of Rs. 1,03,500/- the balance Rs 93,150/- will remain as difference amount from the sale of the vehicle. The vehicle in question has been purchased as per the Ex.P-2 in the year 2006 and same has been sold in the year 2007 it means the vehicle when it was sold is one year old, we have taken into consideration that the one year old vehicle cost amounting to Rs. 93,150/- and same is to be refundable to the complainant by the Respondent. Of course the complainant though he has not particularly pleaded in his complaint but he has argued on this point by relying upon the ruling cited in the III (2008) CPJ 60 National Commission wherein under the second head the national commission has clearly held that: Pleadings before fora consumer fora not always bound by strict rule of pleadings- procedure before fora inqulsltorial in nature, not adverserly_principle natural justice, not procedural technicalities upon its proceedings 12. The dictum laid down by the Honble National Commission in this regard under the said ruling holds definitely applicable to the contention of the complainant hence we have relied upon the said rulings and awarded the compensation of Rs. 2,500/- per month for the loss of earning and further come to the conclusion to order for refundable of difference amount of the vehicle which is already sold by the Respondent. Hence we have ordered to repay Rs. 93,150/- to the complainant against the Respondents regarding the claim of the interest and other compensation is concerned, as we have ordered already about the loss of earnings and repayment of difference amount of the vehicle to the tune of Rs. 2,500/- per month and Rs. 93,150/- respectively, we feel that there is no necessary to order interest and other claims. Hence we have not awarded anything in this regard. Towards the cost of the litigation and deficiency in service is concerned, we feel it just and proper to award Rs. 2,000/- and Rs. 3,000/- respectively accordingly we answered Point No- 4. In view of our finding on Point Nos.1 to 3 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost against Respondent Nos- 2 to 4. The complainant is entitled to recover Rs. 2,500/- per month from March 2007 to till its realization of full amount from the Respondent and he is also entitled to receive Rs. 93,150/- from the Respondent in respect of difference amount of the sale of the vehicle and further he is also entitled to Rs. 5,000/- towards cost and deficiency in service. The claim against Respondent No-1 is dismissed as no steps taken against Respondent No-1. The Respondents No- 2 to 4 have to comply this order within (6) weeks from the date of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 21-12-09.) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Maqbool against Respondents (1) The Proprietor MGB Automobiles Private Ltd., Raichur (2) M/s. Indusind Bank Ltd., represented by its PA Holder Ms. D. Meera- Chennai, (3) The Chief Manager Indusind Bank Ltd., Bangalore and (4) The Manager Indusind Bank Ltd., vehicle finance division, Raichur. The brief facts of the complaint are as under: The complainant availed loan from Respondents for the purposes of purchase of Three wheeler goods vehicle (MiniDor) Pick up model 2006 bearing chassis No. TI 5003105A06, Engine No.D36017524 and its registration No. KA-36/5579. The said vehicle has been purchased from the Respondents in the month of May 2006 for his livelihood by way of self employment with the financial assistance of the Respondents under Loan Agreement No. KLAA00227 dt. 24-05-06 for Rs. 1,20,000/- to be paid within three years i.e, as on 21-03-09 in total Rs. 1,62,000/- including finance charges of Rs. 36,000/- and Rs. 6,000/- as insurance deposit, the monthly installments of Rs. 4800/- agreed to be paid by the complainant. The Respondent No-1 is the dealer for Bajaj limited products for having interlinked with the Respondent No-2 & 3. The Respondent No-2s registered Head office is situated at Pune and retail banking division being run at Chennai, the Respondent No-3 is the state office of the Respondent No-2 and the Respondent No-4 is the Branch Office of Respondent. Further it is the case of the Respondents that the cost of the vehicle was Rs. 1,44,000/- as per Invoice dt. 17-05-06. The complainant availed only Rs. 1,20,000/- as loan from Respondents 2 to 4 and has paid Rs. 24,000/- as margin money, Rs. 4,800/- as EMI Rs. 3,500/- documentation charges and Rs. 750 as TP charges to one Amaresh who is sales representative of Respondent No-1. The margin amount of Rs. 24,000/- was paid in two installments i,e. on 10-05-06 and 15-05-06. The complainant in all paid Rs. 62,500/- from 24-05-06 to 04-12-06 to Respondent No-4 towards his loan installments. However due to financial crisis he defaulted for payment of three installments and not able to pay the same in time to the Respondents. Therefore the Respondents No- 2 to 4 have illegally seized the vehicle of complainant in the first week of March 2007 without issuing any seizer notice, despite complainants protest for seizer. Further it is the case of the complainant that he has approached the Respondent No-4 and requested to release the said vehicle as he is depending upon the said vehicle for his livelihood and would try to pay the due installments out of income of the said vehicle but the Respondents turned deaf year for such request of complainant, thereafter the Respondent No-3 got issued two notices dt. 13-03-07 and 15-03-07 to complainant directing him to pay the due installments as the complainant depended solely upon the income of the said vehicle for repayment, not paid the dues to illegal seizer by the respondent No-4 without prior notice. The Respondent No-2 all of sudden issued notice dt. 13-08-08 intimating the complainant about initiation of arbitration proceeding against him and his guarantor for an amount of Rs. 96,770/- as on 19-11-08 through their arbitrator and the arbitrator in turn has sent case summons in Arbitration Case No. 2602/L dt. 15-12-08 for the appearance of the complainant and guarantor on 02-01-09 at 4-00 PM at Chennai for first hearing, thereafter the arbitrator on 02-01-09 issued another notice to both complainant guarantors to make written submissions and documents before him on 06-02-09 at 4-00 Pm at Chennai. Since the complainant who is struggling for his square meals, is not in a position to attend the proceedings. Further it is the case of the complainant that from the said vehicle the complainant has to use to earn Rs. 10,000/- per month and after deduction of all expenses were and tear, he used to say the amount about Rs. 4,500/- per month but due to illegal seizer the complainant sustained the loss of earnings of the above said amount since March 2007 i.e, from the date of seizer. Further he has contended that even after receipt of the first notice again requested Respondent No-4 for return of vehicle and also enquired for payment of dues but shocked to know he learnt that the said vehicle was sold at lowest price of Rs. 40,000/- of which not at all made known to complainant by the Respondent 2 to 4 till this day. The very seizer of the vehicle being unlawful without issuing any prior notice and subsequent initiation of Arbitration proceedings at their choice of jurisdiction at Chennai is nothing but unfair trade practice and deficiency in service on the part of Respondents 2 to 4. Hence he prayed for necessary direction against the Respondents to settled the claim of complainant in accordance with law by compensating the loss of earning of the complainant since March 2007 to till realization and award the compensation for mental harassment and hardships suffered by the complainant due to illegal seizer of his vehicle and any other relief and cost of the proceedings. 2. The Respondent No-2 Bank represented by its G.P.A. holder by name Nikil D Shirali, appeared through counsel and filed the written statement as under: The Respondent 3 & 4 have adopted the written version of Respondent No-2 by filing memo dt. 12-05-09. The complainant has not taken steps against the Respondent No-1. Hence the claim against the Respondent No-1 is dismissed as steps not taken. The Respondent No-2 in his written version has contended that the complainant is running a business of MiniDor goods vehicle for commercial purpose and he has purchased the vehicle by executing loan cum hypothecation agreement for transportation business to fly it for commercial purpose hence this complainant is not a consumer with in the meaning 2(1)(d) of C.P.Act. The dispute raised by the complainant cannot be adjudicated by this Honble Forum. The relation between the complainant and the Respondents 2 to 4 is that of a borrower and creditor hence the complainant is not a consumer within the provision of CP Act. The transaction is commercial purpose hence this Forum has no jurisdiction to entertain the complaint, the dispute in question is purely civil in nature. The complainant in his complaint no where mentioned as to how much interest where being paid to the Respondents, whether the complainant has cleared all the loan amount payable to the Respondents 2 to 4. Further it is contended that the complainant has not cleared entire loan therefore the Respondents invoked the agreement condition at 15.9 and the vehicle was seized to execute the right over the vehicle as per loan cum hypothecation agreement on 19-03-07 and after seizer of the vehicle the complainant was intimated to clear of the due amount to get release the vehicle. The complainant has not shown any interest for the repayment of due amount to get release the vehicle. The vehicle which was seized by the complainant was sold in open auction for an amount of Rs. 40,500/- on 29-11-07 all these transactions are within the knowledge of the complainant. Further it is contended that after auction sale of the vehicle the arbitration proceedings has been initiated against the complainant and guarantor in turn the arbitrator has issued notices but the complainant has not shown any interest to appear before the arbitrator at Chennai this clearly shows how negligent the complainant and guarantor once the arbitration proceedings are being initiated by invoking clause No. 23.0 in the loan cum hypothecation agreement, regarding law, jurisdiction and arbitration this Honble Forum has no jurisdiction to entertain the complainant and also stay the arbitration proceedings which are already being initiated at Chennai. Further it is contended that the complainant is due in a sum of Rs. 96,770/- to Respondents 2 to 4 but in order to harass and to dupe the said huge money the complainant has filed the false complaint before this Forum further it has contended that the vehicle was seized on 19-03-07 auction was conducted on 29-11-07 under intimation to the complainant this complaint is filed at the belated period of 20 months is not been explained in the complaint. Further contended that this Forum has no jurisdiction to entertain the complaint as the complainant has agreed and signed the agreement wherein it is clearly mentioned in case any dispute arose the same shall be rectified before the Arbitrator Chennai and hence for all these reasons the Respondents prayed for to dismissal against the Respondents 2 to 4. 3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked in all (14) documents at Ex.P-1 to P-14. In-rebuttal the G.P.A Holder Respondents 2 to 4 Bank by name Nikhil D. Shirali, Branch in charge Hubli, has filed his sworn-affidavit as evidence and has got marked three documents at Ex.R-1 to & R-3. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency of service against the Respondent, as alleged? 2. Whether the complainant proves that the complaint of the complainant is maintainable as there is a Arbitration proceedings pending before the arbitrator at Chennai as contended by the Respondents.? 3. Whether the complainant proves that the complainant is a Consumer as per section 2(1)(d) of C.P. Act as contended by the Respondents? 4. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the affirmative. 2. In affirmative. 3. In affirmative. 4. As per final order for the following. REASONS POINT NO.1:- 6. There is no dispute that the complainant had obtained loan from Respondents 2 to 4 Bank for the purchase of Minidor Pick up Model 2006 goods vehicle bearing chasis No. T15003105A06 Engine No. D36017524 and registration No. KA-36/5579 under the loan agreement No. KLAA00227 on 24-05-06 for an amount of Rs. 1,20,000/-. Further it is also not in dispute about the seizer of the vehicle by the Respondent and due in installments and pendency of arbitration of proceedings at Chennai. 7. From the perusal of the pleadings of the parties that to more particularly from the pleadings of the Respondents 2 to 4 it is very clear that the Respondent Bank has raised following points in their defence: 1. The vehicle of the complainant has been seized due to non payment of installments even inspite of several demands as agreed by the complainant. Before the seizer of the vehicle notices have been issued in respect of seizer of the vehicle. The complainant is having detailed knowledge about the seizer of the vehicle and its sale under auction. 2. The Respondent Bank immediately after the seizer of the vehicle notices have been issued regarding sale of the vehicle and after that the arbitration proceedings has been initiated at Chennai. The complainant and guarantor have been made party to that proceedings the arbitrator has also got issued notices in this regard this is known to the complainant. 3. During the pendency of arbitration proceedings by invoking the clause No. 23.0 in the loan cum hypothecation agreement regarding law jurisdiction and arbitration the complainant cannot approach this Consumer Forum for any relief and this Forum has no jurisdiction to entertain the complaint. 4. Since the complainant has purchased the vehicle for the purpose of transportation business to flight for commercial purpose he is not a consumer within the meaning of section 2(1)(d) of C.P. Act. Hence the Forum cannot adjudicate the matter in this regard. 8. The Respondent in order to substantiate the case and their defence as raised under the Point No-1, they have mainly depending upon the Ex.P-8, Ex.P-9 i.e, the information dt. 13-03-07 issued by Respondent Bank to the complainant and notice dt. 15-03-07 issued by the Respondent Bank to the complainant and a guarantor respectively and Ex.R-1, R-2 and Ex.R-3 i.e, loan agreement accounts extract and extract of vehicle registration. On perusal of the said two documents particularly i.e, Ex.P-8 no doubt through that document it is very clear that the Respondent Bank has sent the requisition to the complainant in order to repay the due amount and Rs. 250/- for visiting charges but it is not clear to whom it has served similarly regarding Ex.P-9, however the complainant has admits issuance of there two notices in his complaint at Para-4 but from the close perusal of Ex.P-8 it is very clear that the Respondent Bank is claiming Rs. 250/- towards cost for non payment of installments in due time visiting and charges. Further Ex.P-9 it also discloses that the total due amount which is to be payable by the complainant but it is not clearly shows that the said notice has been issued for the purposes of seizer of the vehicle. On perusal of Ex.P-9 the notice issued against the complainant and guarantor it is very clear that the said notice is issued after the repossession of the vehicle but not for information regarding the seizer of the vehicle or notice for seizer of the vehicle. The para-3 of the said Ex.P-9 is very clear that the vehicle has been repossessed by the complainant on blank dated and further reads as due to the tune of Rs. 1,28,654/- as on 15-03-07, further it reveals that the said notice has been issued both the complainant and guarantor to repay the amount aforementioned within ten days from the date of receipt of said notice, except that there are no other information regarding the vehicle is going to be seized, on the other hand it is very clear that it has been already seized. It is worthwhile to note here that no documents are produced by the Respondent Bank regarding issuance of prior notice in order to seize the vehicle. Under such circumstances we cannot hold that the defence taken by the Respondent regarding seizer of the vehicle after issuing the due notice holds no water. Further it appears that the Respondents have illegally seized the vehicle without any prior notice. In our view in the absence of any prior notice of seizer of the vehicle is nothing but an against the practice and procedure. From the pleadings of the parties, it is also very clear that at no point of time the complainant has voluntarily surrendered the vehicle to the Respondents, its clearly goes to show that the Respondents seized the vehicle forcibly and without any prior knowledge and seizer notice as contended by the complainant. Further it is also very clear from the para-8 of the written version that the seized vehicle has been sold for an amount of Rs. 40,500/- on 29-11-07 in open auction. As per the invoice i.e, Ex.P-2 the cost of the vehicle is Rs. 1,44,000/- as on 17-05-06 the sale of the said vehicle at an amount of Rs. 40,500/- is very less as contended by the complainant selling the seized without prior notice and consent of the complaint at such a lower rate by the Respondent is definitely loss to the complainant. This act of the Respondent will also nothing but an unfair trade practice and deficiency in service. Hence the contention of the Respondents under Point No-1, regarding their defence holds no water. Therefore the act of the Respondents is clearly goes to show that there is a deficiency on the part of the Respondents 2 to 4, in this regard, we have relied upon the rulings cited in 2009 CTJ 840 (CP) NCDRC of Honble National Commission, New Delhi in TATA Motors Ltd., V/s. Indrasena Choubey & Others and 2009 CTJ 992 (CP) NCDRC in HDFC Bank Ltd., Balvinder Singh and also the rulings submitted by the counsel for the complainant cited in I (2006) CPJ 46 NC in Sharma Finance Transport Co. Ltd., V/s. Surekha Khanoji Khemnar case and I (2007) CPJ 200 of Delhi Consumer Disputes Redressed Commission in Magma leasing V/s. Bharatsingh case. The gist of the above said rulings are seizer of the vehicle by not giving notice before possessing the vehicle nor any notice before making its sale is an instant justice which is not permitted in a civilized society having an effective rule of law this act of the financial institution is arbitrary, illegal and criminal. The rule of law should be prevails and not that off jungle where might is right. Further the above said rulings are clearly held that seizer of the vehicle for non payment of installments holds no good unless other wise intervention of court. In view of the findings and discussions on Point No-1, we answered Point No-1 in Affirmative. POINT NO.2:- 9. No doubt the Respondent has initiated the arbitration proceedings against the complainant and guarantor and immediately after the initiation of the arbitration proceedings the Respondent Bank has got issued intimation through letter dt. 13-12-08 under Ex.P-10, the same is also admitted by the complainant in his complaint. The Respondent has raised this point referred under Point No- 1 & 2 in his written version and further contended that because of pendency of arbitration case the complainant case is not maintainable before this Forum. The counsel for the complainant has vehemently argued on this point, stating that neither the complainant nor the guarantor have appeared before the arbitrator and mere initiation of the arbitration proceedings and pending of its result will not affect the rights of the complainant in approaching the Consumer Forum for the relief he sought under the complaint against the Respondent and in this regard he has relied upon the rulings cited in II (2006) CPJ 59 (NC) of Honble National Commission in Yashpal Marwaha V/s. Pushpa Builders Ltd., and another wherein the Honble National Commission and I (2008) CPJ 214 (NC) has clearly held that arbitration proceedings will not effect the rights of the complainant and oust the jurisdiction of Consumer Forum, in view of the above said rulings and contention of the complainant we have felt that there is no strong base on the defence of the Respondent regarding jurisdiction point in view of pending of arbitration case hence we have rejected the contention of the Respondent in that regard and answered Point No-2 in affirmative. POINT NO.3:- 10. The Respondents have raised strong objection regarding maintainability of the complaint before this consumer Forum as the complainant is not the consumer within the meaning of section 2(1)(d) of C.P. Act, because he has purchased the vehicle for the purpose of business of transportation and there is a relationship of borrower and creditor and the complainant is not a consumer in this meaning. From the perusal of the complaint more particularly at Para-4 the complainant he clearly stated that he has purchased the vehicle in order to earn his livelihood. No doubt from the pleadings of the parties the complainant is having only one vehicle apart from the vehicle in question, no other vehicles are having by the complainant. It is not the case of the Respondent that the complainant is having other vehicles other than the vehicle in question and further it is also not the case of the Respondent that the complainant is having transportation business with some other vehicles. Under such circumstances it cannot be said that the complainant is having transport business, of course the complainant is using the vehicle in question for his livelihood. In order to earn something for his livelihood, he has to charge something because of this we cannot hold that he is doing business as contended by the Respondent. Hence we held that the complainant is a consumer as per the section 2(1)(d) of C.P. Act because earning livelihood is quite different and doing a business is quite different. In this regard we have relied upon the ruling of Honble National Commission decision laid down in Ashok Ley Land Finance Ltd., & Others V/s. Ramjilal Gupta Case which was cited in CPJ 2008 (I) at Page No.40, which reads as under: - Contention, two vehicles purchased for commercial purpose and not for personal use__Contention not acceptable__Complainant possesses only one vehicle__Evem if he possesses two vehicle father and son could drive them for self-employment__Complainant consumer. Here in this case the complainant is having only one vehicle and using it for earning something for his livelihood. Therefore the dictum laid down by the Honble National Commission under the above said case is rightly applicable to the facts and circumstances of this case, so we hold that the complainant is a consumer and case of the complainant is maintainable before this Forum. Hence we answered the Point No-3 in affirmative. The Respondent counsel in order to defend his case under above all the points he has submitted rulings cited in ILR 2009 KAR Page 887, KCCA (3) 2006 KAR Page 1349 AIR 2002 SC Page 2402, 1995 (3) Page 293 and CPR 1993 (1) Page 392. The rulings cited by the Respondents are not at all applicable to the facts and circumstances of the case in hand, as the facts and circumstances under the said ruling are quite different from the present case of the complainant. Hence with great respect we have not considered the said rulings. POINT NO.4:- 11. The complainant has sought for direction against the Respondents to pay the loss of earnings of the complainant since from 2007 to till realization and award compensation for mental harassment and hardship suffered by him due to illegal seizer of the vehicle. The complainant in his complaint he has not clearly mentioned what was the loss he has suffered and what was the quantum of amount he was earning on a particular day but in his complaint at Para-5 he has contended that he was use to earn Rs. 10,000/- per month and after deducting expenses he used to save Rs. 4,500/- per month. But except this, no documents were produced in order to show about his earnings etc., no doubt the complainant vehicle is being used for transportation of goods etc., if we come to the conclusion that his earning is Rs. 200/- to 300/- per day it will be not less then Rs. 6,000/- to Rs. 9,000/-. Under such circumstances and in the absence of any receipts in this regard we can hold that the earnings of the complainants will be not less than Rs. 2,500/- per month after deducting the expenses. Hence we have hold that the loss the complainant by way of illegal seizer is Rs. 2,500/- per month. The Respondents have seized the vehicle in the month of March 2007 as per Ex.P-9. The same has been sold for an amount of Rs. 40,500/- this fact is very clear from the Para -8 of the written version. As per the invoice produced at Ex.P-2 the cost of the vehicle is 1,44,000/- if we deducted Rs. 40500/- it will be Rs. 1,0,3,500/- if we deduct 10% depreciation from the remaining amount of Rs. 1,03,500/- the balance Rs 93,150/- will remain as difference amount from the sale of the vehicle. The vehicle in question has been purchased as per the Ex.P-2 in the year 2006 and same has been sold in the year 2007 it means the vehicle when it was sold is one year old, we have taken into consideration that the one year old vehicle cost amounting to Rs. 93,150/- and same is to be refundable to the complainant by the Respondent. Of course the complainant though he has not particularly pleaded in his complaint but he has argued on this point by relying upon the ruling cited in the III (2008) CPJ 60 National Commission wherein under the second head the national commission has clearly held that: Pleadings before fora consumer fora not always bound by strict rule of pleadings- procedure before fora inqulsltorial in nature, not adverserly_principle natural justice, not procedural technicalities upon its proceedings 12. The dictum laid down by the Honble National Commission in this regard under the said ruling holds definitely applicable to the contention of the complainant hence we have relied upon the said rulings and awarded the compensation of Rs. 2,500/- per month for the loss of earning and further come to the conclusion to order for refundable of difference amount of the vehicle which is already sold by the Respondent. Hence we have ordered to repay Rs. 93,150/- to the complainant against the Respondents regarding the claim of the interest and other compensation is concerned, as we have ordered already about the loss of earnings and repayment of difference amount of the vehicle to the tune of Rs. 2,500/- per month and Rs. 93,150/- respectively, we feel that there is no necessary to order interest and other claims. Hence we have not awarded anything in this regard. Towards the cost of the litigation and deficiency in service is concerned, we feel it just and proper to award Rs. 2,000/- and Rs. 3,000/- respectively accordingly we answered Point No- 4. In view of our finding on Point Nos.1 to 3 we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost against Respondent Nos- 2 to 4. The complainant is entitled to recover Rs. 2,500/- per month from March 2007 to till its realization of full amount from the Respondent and he is also entitled to receive Rs. 93,150/- from the Respondent in respect of difference amount of the sale of the vehicle and further he is also entitled to Rs. 5,000/- towards cost and deficiency in service. The claim against Respondent No-1 is dismissed as no steps taken against Respondent No-1. The Respondents No- 2 to 4 have to comply this order within (6) weeks from the date of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 21-12-09.) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.