BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.



Consumer Complaint No: 396/2004

Date of presentation: 25.05.2004

Date of decision: 09.03.2009



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Shri Ajay Gupta S/O Shri R.R. Gupta, House No.33, Lane No.1, Sector-2, New Shimla, H.P.





… Complainant.

Versus



1. ICICI Money Manager Account, ICICI Limited, ICICI Towers, Bandra-Kurla Complex, Bandra (E) Mumbai-400051.



2. Manager M/S ICICI Bank Limited, SCO-151-152, Sector 9-C, Chandigarh.



…Opposite Parties.

Coram



Shri Pritam Singh (District Judge) President.

Mr. Charanjit Singh, Member (Male)

………………………………………………………………………..



For the complainant: Mr. Rajinder Singh, Advocate vice

Mr. M.S. Kanwar, Advocate



For the Opposite Parties: Mr. Vijay Verma, Advocate.





O R D E R:

Pritam Singh (District Judge) President:- This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The case of the complainant in brief is that he got his vehicle (Maruti 800) bearing registration No.HP-51-1347 financed from the OPs for sum of Rs.1,72,000/- in 2001. That the entire loan amount was to be repaid in 60 equal monthly instalments of Rs.4042/- payable on or before 7th of each month. That he started repaying the instalment from July 2001 with their agency office named Vandy Himachal Vikas Nagar Block Kasumpti, Shimla-9. That during the month of November, 2003, the aforesaid agency was shifted to Khalini area and when the complainant enquired about the said agency, he came to know that the said agency was closed and as such, he could not deposit the instalments. That on 28.01.2004, the agents of OPs forcibly took the possession of his vehicle, and raised illegal demand of Rs.1,36,797/- failing which vehicle will be disposed of. That the OPs were requested several times to release the vehicle, but all his request fell on their deaf ears. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.

2. The complaint is resisted by OPs-Bank who took several preliminary objections regarding maintainability of complaint, status of the complainant as a consumer under hire purchase agreement, jurisdiction of Forum to try this complaint etc. On merits, it is alleged that the vehicle in question was financed under hire purchase agreement executed interse parties and complainant availed loan of Rs.1,72,000/- from them. But, the complainant did not repay the (EMI) instalments regularly and committed default. As such they were well within their right to repossess the vehicle in question on 28.01.2004 as per terms of agreement. That the complainant paid only 27 instalments at agreed rate of EMI and a sum of Rs.1,36,797.54 is still payable by the complainant as on 30.01.2004. Hence, the complainant being not consumer and there being no deficiency in service, the complaint was sought to be dismissed. Thereafter, the parties led evidence in support of their claim/counter claim.

3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.

4. It may be stated that undisputedly the vehicle (Maruti Car 800) bearing registration No.HP-51-1347 was financed by the OPs to complainant for a total sum of Rs.1,72,000/- in 2001, which amount was to be repaid in 60 EMI of Rs.4042/-. The complainant alleged that he was regularly repaying the instalments, but the OPs illegally and arbitrarily took the repossession of the vehicle on 28.01.2004 and now it has been illegally retained by them.

5. Whereas, the OPs alleged that the complainant did not repay the EMI of loan amount regularly as per the terms and conditions of the hire purchase agreement and committed default. As such, there was violation of the terms and conditions of the hire purchase agreement. That the complainant is still liable to pay Rs.1,36,797.54 to them as on 30.01.2004. As such, the vehicle in question was rightly repossessed by them.

6. The learned counsel for the OPs, however, also vehemently contended before us that under hire purchase agreement if the loanee failed to pay the repayment instalments (EMI) of loan amount regularly and committed default, he having taken advantage of the hire purchase agreement is precluded from saying that OPs is not the downer and he is not hirer, specially when it was agreed upon that in event of non-payment of entire amount due, the vehicle shall remain the absolute property of the financer. He further contended that in case of hire purchase transaction, the financer does not render any service within the meaning of the Consumer Protection Act, 1986 and the complainant cannot be held a 'consumer'. That if the loanee did not pay the arrears of the instalment of loan amount, as per agreement, the financer is at liberty to rescind agreement and seize the vehicle and it does not amount to deficiency in service because the repossession of the vehicle can be taken and agreement rescinded as per the terms of hire purchase agreement. In support of his contention, he also placed reliance to the following case law authority:-

i) Himachal Motors and Genral Finance Limited versus Dameshwar Ram & Anr. Finance (Pvt.Ltd. of Hon'ble State Consumer Disputes Redressal Commission, Himachal Pradesh, reported in 2006(2) Current Law Journal (H.P.) Page 223.



ii) Ram Deshlahara versus Magma Leasing Ltd. of Hon'ble National Consumer Disputes Redressal Commission, New Delhi reported in 2006(3)CLT. Page 330 & 331.



iii) Padma Wati versus Tata Finance Ltd. and another of Hon'ble The Consumer Disputes Redressal Commission, Union Territory, Chandigarh reported in 2005(2)CLT. Page 349.



7. We have considered the contention and also perused the aforesaid case law authorities minutely. It may be stated that undisputedly, the vehicle in question was financed by the OPs under hire purchase agreement when the complainant failed to repay the agreed instalments (EMI) of the loan amount regularly and committed default, the OPs were within their right as per terms of agreement to rescind the agreement and repossess the vehicle because the financier-OPs did not render any service within the meaning of Act and the complainant cannot at all be held ‘consumer’ for the purpose of this Act. As such, it would not amount to deficiency in service. Our view on this point is fortified by the case law authorities referred to above relied upon by learned counsel for OPs and in view of basic law laid down by Hon'ble National Consumer Disputes Redressal Commission as reported in III(1995)CPJ 85 (NC) in case Manager, St. Mary's Hire Purchase (P) Ltd versus N.A. Jose & Hon’ble Apex Court reported in 2001-3 PLR 833 (Supreme Court) in case Charanjit Singh Chadha v. Sudhir Mehra. No counter authority is cited before us by learned counsel for the complainant.

8. Moreover, intricate question of law and facts are raised and involved in the matter in controversy and the matter appears purely of civil in nature which cannot be decided in a summary manner by this Forum. The controversy can be properly adjudicated by civil court where parties will get proper opportunity of leading elaborate evidence in support of their rival contention.

9. In view of the above discussion, we are of opinion that the complainant is not a 'consumer' within the meaning of Act and OP never rendered any service to him thereby there is no deficiency in service on the part of the OP. Consequently the complaint is not legally maintainable, and it being merit less is liable to be dismissed. It is ordered accordingly. No order as to the costs. The learned counsel for the complainant and OPs have undertaken to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Announced on this, the 9th day of March, 2009.





(Pritam Singh)

President.







NMehta) (Charanjit Singh)

Member.