Date of Filing – 22.04.2015

Date of Hearing – 21.06.2017

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Parties to impeach the Judgement/Final Order dated 29.12.2014 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, Ld. District Forum) in Consumer Complaint No. 284/2014. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by Respondent under Section 12 of the Act with the directions upon the appellants to release the truck in question and to hand over the same to the respondent/complainant within one month subject to payment of 50% of loan amount after deduction of the amount already paid, to pay litigation cost of Rs.5,000/- etc.

          The Respondent herein being Complainant lodged the complaint asserting that he took hypothecation loan from the opposite parties on 28.07.2012 and the loan amount was Rs.6,49,000/- against the assets being Tata Truck (LPT-2515).  It was stipulated that the amount of loan for the said truck being No.NL-05D/6655 was Rs.28,775/- per month repayable in 29 months.  The complainant has paid altogether Rs.3,01,311/- in favour of the OP/Bank.  The complainant alleged that on account of such default of payment without any notice, on 20.09.2013 the man of OP repossess the truck by force.  Hence, the respondent approached the Ld. District Forum with prayer for several reliefs including a direction upon the OP/Bank to release the said truck in favour of him.

          The appellants being opposite parties did not contest.  

          After evaluation of the evidence led by the respondent, the Ld. District Forum by the impugned order allowed the consumer complaint ex parte against the OP with certain directions upon them as indicated above, which prompted the OPs to prefer this appeal.

          I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

          Admittedly, the respondent in order to purchase one truck obtained loan from the appellant Bank i.e. Kotak Mahindra Bank Ltd. and the loan amount was Rs.6,49,000/- and the EMI has been fixed at Rs.28,775/- per month payable in 29 months.  From the contents of the petition of complaint, it would reveal that the respondent has repaid only Rs.2,43,761/- by cash and Rs.57,550/- through Bank aggregating Rs.3,01,311/- and defaulted in making payment as pert terms of the Agreement. 

          Despite the fact that the respondent was a defaulter the Ld. District Forum has passed the impugned order only on the fact that the evidence of the respondent was remaining unchallenged.  Even if a complaint is not contested by the other side and the contents of the petition of the complaint or the evidence led by the complainant remains uncontroverted still it is bounden duty on the part of a Court/Forum to consider the matter on merit.

          It is well settled that under the higher purchase agreement, it is the financier who is the owner of the vehicle and the person who takes the loan retains the vehicle only as a bailee/trustee.  Therefore, taking possession of the vehicle on the ground of non-payment of instalments has always been upheld to be a legal right of the financer.  In catena of decisions reported in – (1) III (2012) CPJ 4 (SC) (Surya Pal Singh – Vs. – Siddha Vinayak), (2) II (2010) CPJ 48 (NC) (Dipti Mayee – Vs. – ICICI Bank Ltd.), (3) III (1995) CPJ 58 (NC) (Sanint Mary’s Hire Purchase – Vs. – N.A. Jose) and (4) IV (2012) CPJ 322 (NC) (Surendra kumar Sahoo – Vs. – Indusind Bank) the Hon’ble Supreme Court and the National Consumer Commission has observed that under the hire purchase agreement, the financier is the real owner and as such there cannot be any allegation against him for having the possession of the vehicle.

          Considering the facts and circumstances and the proposition of law, I have no hesitation to hold that the Ld. District Forum has totally misdirected itself in considering the matter from the proper perspective and as such the impugned order is liable to be set aside.

          For the reason aforesaid, the appeal is allowed on contest.  However, there will be no order as to costs. 

          The impugned Judgement/Final Order is hereby set aside.

          Consequently, the CC/284/2014 stands dismissed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.