District Consumer Forum, Bokaro.
Consumer Case No. 17 of 2007
Dilip Kumar Sharma w/o Ram Anandi Sharma
Staff Colony Kathara Coaliery, Qr.No.-1B/100.
Dist.- Bokaro.
Versus
1. Branch Manager, HDFC Bank Ltd. Bistupur Branch, Jamshedpur.
2. Branch Manager, Shrachi Securities Ltd.
JB-19, City Centre, Sector-IV, B.S.City.
Before-
S.M.Alam, President
Vijay Bahadur Singh, Member
Shabnam Praveen, Member
Date of Judgment-: 15 April 2009
Date of case filing-: 28 March, 2007.
-: Judgment:-
The complainant has filed this consumer case against the opposite parties and sought relief against them to return the brick loaded Truck of the complainant with 12% interest on the amount which was paid by the complainant, besides Rs. 300000/- as compensation and Rs. 10000/- cost of litigation.
2 Brief fact of the case is that the complainant had purchased a Truck on 05.12.2005 on the basis of loan through HDFC Bank and the total price of Truck was Rs. 1011000/- out of total price of the Vehicle the complainant paid Rs. 220000/- to the opposite party No.2 out of which Rs. 50000/- was insured of the said vehicle. The concession of Rs. 35000/- was on the purchased of said Truck as to be given to the complainant by opposite party No.2, after the purchased of said Truck from authorized dealer of TATA. The opposite party No.1 had financed a sum of Rs. 952000/- including 4.5% yearly interest and 2 Years insurance amount. The complainant has to paid the said Rs. 952000/- in 35 installments which begun from Jan.2006 till Nov.2008. The opposite party handed over the said Truck to the complainant on 05.12.2005 and obtained 2 Post Dated Cheques from the complainant vide cheques No. 444157 and 444158 of SBI Kathara. The registration of the said Truck was Jh-09E-9457. The complainant obtained all the relevant papers of the said vehicle. The complainant started earning by playing said Truck, and used to pay the installments to the opposite party No.2 against which, the opposite party No.2 granted receipts. However till Oct.2006 the amount paid to the opposite party No.2 was less about 40000-45000/- then the complainant wrote a letter to the opposite party No.2 and requested to adjust Rs. 35000/- as concession which was granted to the complainant at the time of purchased of the said vehicle. But the opposite party No.2 neither paid any amount nor paid the initial part of the installment against the payment. In the Month of December, 2006 complainant sent a Demand Draft of Rs. 20000/- to the opposite party No.1 and requested to adjust his Rs. 35000/- concession amount against the less amount paid by him. But the opposite party did not take pain to reply the said letter of the complainant except assurance. On 02.02.2007 opposite party seized the Truck of the complainant and inventory was handed over to the Driver of the said Truck. The complainant immediately contacted the opposite party No.2 and told him about the seizer of his Truck, upon which the opposite party No.2 assured him to handover full details. On 12.02.2007 complainant went to the office of the opposite party No.1 and discussed the matter with the opposite party No.1 and informed him that his Truck was seized on 02.02.2007, the opposite party No.1 told him that around Rs. 100000/- is still dues with the complainant which required to be paid and thereafter, the details will be given to him. The complainant told the opposite party no.1 that at the present time he has Rs. 40000/- as amount and he is ready to pay Rs. 40000/- and the rest amount, thereafter, but the opposite party No.1was not ready and advised the complainant to pay the entire amount an then take away his seized truck. On 17.02.2007 the complainant went to the office of the opposite party no.1 with the aforesaid amount where he was told that the seized truck has been sold and directed him to contact Kolkata office. The complainant, thereafter, contacted Kolkata office where he was told to contact Mumbai office. The complainant contacted the Mumbai office where he got information on account of none payment of installment, the said Truck was seized and sold. The Mumbai office also told him that till 10.02.2007 was allowed to the complainant for the said payment which the complainant failed to do so. Thereafter, the complainant went to the opposite parties and talk to them but no remedy was short out for the release of said Truck and hence the complainant filed this present Consumer Complaint under Consumer Protection Act for his redressal.
3 Upon issuance of notices both opposite parties appeared and filed their common written statement, stating therein that the present Consumer Complaint is not maintainable at all, as such it is fit to be dismissed. The complainant is not a Consumer define under section 2(1) (d) of C.P. Act, hence the present complainant is not entitled to lodged any complaint before this Learned Forum under section 12 of Act. The definition of Consumer as per amended provision of the CP Act 1986 excluded its purview, the person who avails service for commercial purposes. As such no person who availed of and or hired any service for commercial purposes can approach consumer forum for any alleged deficiency of service or otherwise at all. On a perusal of sale certificate, Motor Vehicle Registration Certificate (Owner Book) Fitness certificate, Insurance certificate, National permit filed by the complainant himself in the case record it is evident that his vehicle is HCV Truck and is being used in transport business running by the Driver namely Rajendra of the complainant since long. Therefore, complainant do not comes under the definition of the “Consumer “hence the present complaint case is fit to be dismissed at once on this score alone. The relation between complainant and opposite parties is of “Borrower and Creditor” not as service provider, as such the complainant is not a Consumer as define under C.P. Act. The complainant having agreed to the terms and conditions of the agreement is legally stopped from raising any dispute before this Learned Forum. Therefore, the present complaint is not maintainable at all and is fit to be dismissed with costs. The complainant became defaulter in making payment of outstanding dues in terms and conditions of letter of opposite parties. Thus lastly the opposite party sold the vehicle and after adjustment of sale precedes an amount of Rs. 392670/- is still dues outstanding payable by the complainant to the opposite party. Therefore, the complainant could not allowed to take benefit of his own wrong for unjust gain and the present case is fit to be dismissed. The further case of the opposite party is that the complainant has entered “hire purchase agreement” dated 05.12.2005 with the opposite party No.1 for a heavy commercial vehicle which got registration No. Jh-09-E-9457 and the total loan paid by the opposite party No.1 to the complainant is Rs/ 808000/- which was to be repaid with interest by the complainant in 35 EMI @ of Rs. 27200/- each which comes to a total contract value of Rs. 952000/-. The said installment has been commenced of and from 05.01.2006 payable by the complainant but the complainant defaulter in making payment of vehicle in spite of repeated representation; hence the vehicle was repossessed by the opposite party on 02.02.2007 and sold the same in terms of the said agreement. Arbitration proceeding was initiated in terms and condition of the agreement of recover balance outstanding amount of Rs. 392670/- after adjustment of sale proceeds. But the complainant in stead of paying balance amount has filed this present Consumer Case to escape from his liability. The complainant have to appear and filed his claim if any in the said arbitration proceeding where in award was passed on 02.01.2008 by the arbitrator Tribunal and copy of which was sent under registered post on 14.01.2008 to the complainant with a copy to the granter of the complainant. The award is pending of all the parties is concerned. Thus in view of facts stated above the complainant is not entitled to any relief as prayed and the case is fit to be dismissed.
4 Heard both the parties and perused the case records and documents filed by them. It is observed that the vehicle in question was seized by the opposite party on account of the complainant being defaulter in making the payment towards the loan. The seizer of the vehicle was done as per the terms and conditions of the Agreement for vehicle loan and guarantee between the parties. It is also found that the vehicle was a commercial vehicle as per the certificate cum policy schedule issued by Bajaj Allianz filed as annexure 5 by the complainant. In view of the above the opposite party can not be held negligent and deficient in service towards the complainant and as such we do not hold the opposite party liable to pay any relief to the complainant.
5 Under the facts and circumstances of the case no merit is found in the complaint case and the same is dismissed accordingly hereby.
Member(lady) Member President