Per Hon'ble Dr. S.K. Kakade, Presiding Member

1. Aggrieved by the forceful possession of a tipper truck owned by an agriculturist, Shri Brahma Sampatrao kale, by Hinduja Leyland Finance Limited, the financer of the tipper truck, on account of default in the repayment of the loan, the complainant Mr. Brahma Kale approached this Commission and filed this complaint with a prayer to declare the opponent guilty of unfair trade practice and direct it to pay compensation.
2. Brief facts of this case are as follows,

The complainant, Shri Brahma Sampatrao Kale, an agriculturist residing in the village Bhilgaon, Naka no. 2, Kamptee Road, Nagpur 400026, purchased two vehicles on 3^rdOctober 2012, tipper truck of Ashok Leyland bearing Vehicle make and model no. 2518 bearing registration Nos. MH 40 - Y- 3699 and MH 40-Y- 9990. The complainant obtained loans for both vehicles from the opposite party Hinduja Leyland Finance Limited with its corporate office at 27A, Developed Industrial Estate, Guindy, Chennai 660032, and its local office at Shriram Shyam Towers, A wing, block no. 801, Kings Way, Civil Lines, Nagpur 440 001. The complainant obtained loans of Rs. 22, 10,000/- for each of the vehicles on 30^th October 2012 vide contract Nos. VINGNG00695 and VINGNG00694. The repayment as per the Contract was scheduled from November 2012 till February 2016.The opposite party did not supply a copy of the loan Agreement and account statement; also did not reply to the letter sent by the complainant which the opposite party refused to give even acknowledgment the letter. The office of the opposite party in Nagpur was shifted to a new address without intimation to customers.

3. The complainant suddenly received a demand letter on 8^thFebruary 2016, from the opposite party demanding Rs. 8, 88,239/- as an overdue amount for vehicle number MH- 40 –y-3699. However, acopy of the loan Agreement and account statement was not handed over to the complainant despite repeated visits and telephonic calls by the complainant. The complainant was further shocked when he received a notice dated 28^th March 2017 from the opponent for loan agreement no. 695, stating that for the recovery of the amount, the opponent has referred the matter to arbitration, to an arbitrator Mr. S.S. Samuel, located in Chennai and the complainant received notice-cum-letter dated 12^thApril 2017 to attend the proceedings of the arbitration. The complainant was represented before the arbitrator by an advocate on 28^thApril 2017. After passing an interim order permitting the opponent to take possession of the vehicle, there were two hearings in the arbitration proceeding. The opposite party did not respond to the Complaint’s request of providing a no-dues certificate in the first loan Agreement and a copy of the second loan Agreement. According to the complainant, with respect to the vehicle no. MH-40-Y-3699 is concerned, substantial payment was made by the complainant and in January 2016, the only amount due was Rs. 2, 09, 280/-. Further, it was noted by the complainant that the demand was raised by the opposite party of Rs, 8, 20, 848/- as an overdue amount for this vehicle, with the exorbitant rate of interest, 36 % from 8^th March 2017. Aggrieved by the unfair practices of the opposite party, the complainant has approached this Commission with a prayer to hold the opponent guilty of having committed unfair trade practices and direct the opposite party to provide a no-dues certificate with respect to contract no. 694 and to supply the copy of the loan Agreement as well as the account statement with respect to account no. 695. Complainant has also prayed for directing the opposite party to pay Rs.5, 00,000/- towards compensation and damages. The opposite party appeared before the Commission and filed a written statement. Both parties filed evidence affidavits, the opposite party has also placed on record both loan agreements. The complainant filed the interim order passed by the arbitrator dated 12^thApril 2017. We heard this complaint finally.
4. We heard the rival submissions and arguments advanced by learned advocates of both parties and perused the record.Considering submissions of advocates for both parties,  record, and scope of the complaint, the following points arise for our determination, and our findings thereon are noted as against them for the reasons herein below:

POINTS:

REASONS:

5. AS TO POINT NO. 1: “CONSUMER’

The complainant has hired the services of the opposite party, which is a private company dealing with finance and has provided loans to the complainant for the purchase of two tipper trucks in the year 2012. The complainant has produced and filed documents on record. Hence the complainant is a consumer as per the definition under the Consumer Protection Act 1986. We answer POINT no.1 as AFFIRMATIVE.

6. AS TO POINT NO.2: “DEFICIENCY

Learned advocate for the complainant submitted that the complainant purchased two tipper trucks,   which were financed by the opposite party.  These tipper trucks were used by the complainant to earn livelihoodfor his family.  There are two different agreements between the complainant and the opposite party regarding finance for these two vehicles.  For each truck, the complainant obtained a loan of Rs. 22, 10,000/-, for the tenure of 4 years, from 2012 to 2016.  Accordingly, the complainant was paying the EMI of both loans.  According to the learned advocate,

1. The complainant did not receive theloan Agreement for the second vehicle (with registration no. MH-40-Y-3699) as well as Statements were never provided by the opposite party.
2. The complainant received a letter/ demand in the amount of Rs. 8, 88,239/-, reference page no. 25, which was a sudden increase in the demand.  There is no reason provided for the sudden increase in demand.
3. That, the office of the opposite party was shifted to another place, without intimation to the customers, hence it was not possible to communicate with the staff, causing inconvenience to the complainant.
4. Declaring that the complainant is a defaulter with respect to the second loan (the agreement no.695) unilaterally, the opposite party referred the matter for arbitration, the place of arbitration was in Chennai.Reference page no.32.  The arbitrator passed interim order only, permitting the opposite party to take possession of vehicle no. MH-40-Y-3699.  Reference page no.39 document number 13.
5. The complainant never received any letter from the opposite party regarding the amount due in respect of both loans. According to the Complainant, he has repaid the first loan of vehicle number MH- 40-Y- 9990 but has not received the NOC.
6. The opposite party has suddenly demanded an increased amount in letters followed within one month, and now the opposite party is claiming Rs. 70 lakh in a letter dated 26^thNovember 2020.  Thus, the opposite party is following unfair trade practices, by demanding an unreasonable amount of money, towards the repayment of the loans.
7. On the basis of the documents submitted/ filed on record, the complainant prays for declaring the opposite party guilty of deficiency in service and unfair trade practices.  The complainant also demandsa copy of the loan Agreement in respect of the agreement no. 695 and the statements of both loans.  In view of taking forceful possession of one of the tipper trucks and not providing the relevant necessary documents to the consumer, it is prayed by the complainant that the opposite party is guilty of unfair trade practices.  The learned advocate for the complainant prayed for granting the complaint’s prayers.
8. Learned advocate for the complainant, referred to the following citation, Sunil Kohli and Anr. Vs. Pure Earth Infrastructure Ltd. (2020) 12 Supreme Court Cases 235. Hon’ble Supreme Court has clearly stated that the complainant would come within the definition of “Consumer” as defined under the Consumer Protection Act 1986 when the premises were booked for self-employment. According to the learned advocate for the complainant, the ruling is applicable in the present case.

7. Learned advocate for the opposite party, Advocate Shri. Dharkar opposed the contentions of the complainant and denied all the allegations by the complainant. He submitted that, 

1. The complainant is not a consumer as he purchased two Commercial vehicles.  Hence this Commission does not have jurisdiction over this dispute.  He referred to page no. 7, on which it is clearly mentioned that the trucks were purchased for commercial purposes.
2. The said dispute has already been arbitrated before the arbitrator as per the loan Agreement between the two parties.  Thoughthe interim order has been passed by the arbitrator, it is still to be finally heard. Reference page no. 32.
3. The complainant was already provided with the statement of loan accounts, and the same was filed before the arbitrator by the complainant in 2018.
4. Apparently, certain documents appear to be fabricated as they are not issued by the opposite party for example document no. 24 is not issued by the opposite party.
5. As per document no. 4,  the letter sent by the complainant to the opposite party dated 23^rdof February 2016,  there is a clear-cut mention of the amount overdue of Rs 2,03,974/-, this is an admission on the part of the complainant.
6. The opposite party admits document no. 6, a letter dated 9^thMarch 2016 sent by the opposite party to the complainant and demanding Rs. 8, 20, 848/-.
7. The loan agreements have specifically given schedules of repayment equally divided into 40 EMI. Inthe case of the first vehicle out of 29 EMI, 25 were bounced.  But admittedly the opposite party did not communicate this to the customer, and also this plea has not been taken in the written statement by the opposite party.
8. As per article 19 of the agreement, the opposite party has every right to seek possession of the vehicle in case of a defaulter in payment.
9. Learned advocate for the opposite party referred to the following rulings-citations during arguments, 1. Joginder Singh vs. Cholamandalam DBS Finance Ltd & Anr. I (2011) CPJ 264 (NC) and 2. Indusind Bank Ltd. vs. Ms.Kanchan Ghosh, decided on 11 May 2017, by State Consumer Disputes Redressal Commission, both these citations describe that purchasing of two vehicles has a commercial purpose.

8. We have gone through the documents filed on record by both parties after hearing the arguments advanced by the learned advocate for both parties,  and noted our observations as follows,

1. As per document number 2, on page 24, aletter issued by the opposite party dated 4^thJanuary 2016, with reference to contract number 695, in respect of vehicle no. MH 40-Y-3699, the opposite party communicated to the complainant that there was an overdue of Rs. 2,09, 280/ including additional - interest as per the terms of the agreement,  and the complainant was directed to immediately clear the dues.
2. As per document number 3, on page no. 25, the letter issued by the opposite party to the complainant dated 8^thFebruary 2016, with reference to the contact number 695, in respect of vehicle number MH-40-Y-3699, the opposite party communicated to the complainant that there was an overdue of Rs. 8, 48,209/- including additional finance interest as per the terms of the agreement.  Thus, we observe that within a period of 1 month, the opposite party demanded almost four times of the amount which was overdue in the month of January 2016.
3. The loan agreements, for both the vehicles that are placed on record by the opposite party, are seen to be incompletely filled and the signatures of the guarantor are seen placed on the document without filling in the other details required in the said document.  Thus, both loan agreements are in-completely filled documents. In the schedules of repayment,  into 40 equal EMI,  also note that the rate of interest will be at the rate of 36% as per the sec. no. 2.9(e), 14.1 (A) (C).
4. The loan statements for both vehicles, at the end mention number of cheques that got bounced.  Apparently, cheques got bounced on the 2^ndof January 2015, as per the record provided.  Surprisingly even though there is a list of cheques that got bounced, there is no document available on record that shows the communication from the opposite party to the complainant regarding the bouncing of the cheques.
5. In view of the above observations, it is clear that the opposite party had never provided the documents of loan agreements and the statements of loan account to the complainant.  The interest rate of 36% In case of delay in repayment, isexorbitant.  The loan agreements (Contracts) appear to be drafted unilaterally and binding upon the loanee.  It is difficult to understand, why the opposite party did not communicateto the complainant about the bouncing of so many cheques, according to the opposite party 25 out of 29 cheques got bounced. We are of the opinion that the opposite parties have followed unfair trade practices while providing loans for vehicles purchased by the Complainant. No proper communication with the complainant and inadequately filled loan Agreement documents and charging an exorbitant rate of interest at the rate of 36 % in case of delay, all together are unfair trade practices.

9. AS TO POINT NO. 3: RELIEFS

The complainant has proven deficiency in service and unfair trade practices by the opposite party.  The complainant has suffered mentally as well as physically from the year 2016 due to the unfair trade practices of the opposite party.  We are of the opinion that the relief sought by the complainant is justifiable. It is the right of a consumer to receive all the information about the product which he is using, andabout the services which he has hired.  The agreement for hiring services of the company and subsequent contract between the two parties provides certain rights to the consumer and responsibilityto the service provider. If the service provider has notshown transparency while providing services to the consumer, the consumer suffers leading to Physical, mental, and financial loss to him. In view of this, the complainant is definitely entitled toreceivea no due certificate of the loan which according to him all repayment has been done, especiallysince there is no communication from the opposite party to the consumer about the bouncing of the cheques.  If the opposite party has forcefully taken the position of the vehicle which it has financed, it is the bounden duty of the opposite party to provide no due certificate as the cause for dispute has already been unilaterally resolved by the opposite party.  The company financing the vehicle, whentaking forceful possession of the vehicle for default in repayment, is not entitled further to collect the amount due from the consumer along with interest if any. In view of this, we don't hesitate to pass an order directing the opposite party for providing no due certificate with respect to the loan contracts of the complainant.  The complainant is definitely entitled to receive Rs. 5, 00,000/- towards mental, and physical harassment, and agony.  In view of this, we answer POINT no.3 as AFFIRMATIVE.

10. AS TO POINT NO. 4: What Order?

In view of the above discussion in point no. 9 above, we pass the following order.

ORDER

1. Consumer Complaint is partly allowed with cost quantified to Rs. 50,000/- to be paid by the opposite party to the complainant within four weeks from the date of receipt of a copy of this order.
2. It is declared that the opposite party has indulged in unfair trade practices and deficiency in service.
3. The opposite party is hereby directed to give a No Dues Certificate with respect of contract no. 694 and vehicle no. MH-40-Y-9990.
4. The opposite party is directed to supply an authentic and registered copy of the loan agreement and loan statement in respect of Contract no. 695 for vehicle no. MH-40-Y-3699.
5. In case of the vehicle no. MH-40-Y-3699 is in possession of the opposite party, the opposite party is directed to give a No Dues Certificate for loan contract no. 695.
6. The opposite party is directed to pay Rs.5, 00,000/-(Rs. Five Lakh only) towards the compensation for causing financial hardship, and emotional, mental, and physical agony.
7. The above order is to be complied with by the opposite party within one month from the date of receipt of a copy of this order, failing which the amounts will carry interest @ 12 % per annum from the date of this order.
8. Copy of this order is to be given to all the parties free of cost.