DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION :

JAJPUR : (ODISHA)..

                           Consumer Complaint No. 45 / 2018.

Date of filing of complaint :-      27.01.2021,

Date of Hearing                :-       26.08.2022,

 Date of Order                  :-        30.12.2022.

Dated the 30^th day of December 2022.

Arundhati Jay Singh, W/o:- Nirmala Chandra Jay Singh,

Vill:-Dadhibamanpur, Po:- Barikul, P.S:- Mangalpur,

Dist:- Jajpur.                                                                                                                                                                     .  .  .  .  Complainant.

                      Versus.

1. Mahendra Finance Limited,

Rasulgarh, Bhubaneswar, Dist:-Khurda.

2. Mahendra Finance Limited,

At/Po: -Panikoili, Dist:- Jajpur.....Opp. Parties.

            P R E S E N T S.

  1.   Mrs. Susmita Mishra,                  President,

2.   Sri Bibekananda Das,                Member (I/c).

Counsels appeared for the parties.                           

For the Complainant: -     Sri Badri Narayan Panda, Advocate.

For the Opp. Parties :-      Sri Biplab Kumar Tripathy, Advocates.

J U D G M E N T.

Mrs. SUSMITA  MISHRA,  PRESIDENT.

            This C.C. Case No. 45 of 2018 is taken up today for order.  The Complainant in this case is, Arundhati Jay Singh, has filed this consumer complaint U/s 12 of Consumer Protection Act, 1986 (Now U/s 35 of the New Consumer Protection Act, 2019) seeking the following reliefs.

“Directing the O. Ps to fix rest of the amount in another installment & allow some time to pay the dues, to settle the dispute amicable & pass any other appropriate order/orders deem fit & proper in the fact & circumstances of this case.”

Brief facts of the case :-

The complainant has filed the dispute alleging the illegal & arbitrary action of the Opposite Parties.

1.           The case of the complainant is that the complainant being a housewife having no other source of income except the vehicle.  The complainant has purchased one Tractor having Regd. No.OD-04G-8599 by paying the down payment of Rs.2,35,000/- from the O.Ps & one Trailer having Regd. No.OD-04G-8600.  The complainant had paid the installment dues regularly.  The O.Ps issued an illegal arbitrary lawyers notice to the complainant on 19.05.2018 for amounting to Rs.77,750/- due to defaulter of 1 to 2 installments & also issue a direction to be paid said amount within seven days, otherwise they take appropriate action.  The complainant in the complaint petition stating that the installment fix for Rs.18,550/- with interest & the complainant paid aforesaid dues.  The complainant already paid Rs.4,26,630/-.  It is also stating that the complainant avail on debt relief under PMGSY Subsidy Scheme.  It is submitted that the complainant being a housewife she has unable to repay the loan amount, therefore, pray this Hon’ble Commission to fix rest of the amount in another installment, allowed sometime so that the complainant pay the dues.  Due to illegal & arbitrary issued a demand notice by the O.P’s through lawyer to pay a sum of Rs.77,750/- within 7 days to the complainant, having no other option she had filed this complaint before this Commission.
2.           Notice was issued to the O.Ps Financer from this Commission on 25.05.2018 vide Memo No.391(3) and after received of the notice, the O.Ps appeared through their advocate & filed their preliminary written version.  It is also submitted by the O.Ps that the present complain petition is not maintainable in view of the prayer made in the petition.  It is also submitted by the O.Ps that in the complaint petition the complainant has neither averred anything with regard to the deficiency in service nor with regard to any negligence adopted by the O.Ps.  It is also submitted by the O.Ps that the complainant is not a consumer according to the definition as provided U/s 2 (1)(d) of the C.P. Act, 2019.  It is also submitted by the O.Ps is that the entire agreement between the complainant  & the O.Ps are commercial in nature.  Further it is submitted by the O.P’s that, firstly, the complainant purchased a vehicle of his choice being a Mahindra Tractor 475 DI BHOOMIPUTRAbearing Regd. No. OD-04G-8599 through loan amount of Rs.4,80,000/- from the O.Ps & the agreement value including interest to be re-paid by the complainant was Rs.6,99,750/- vide Loan Agreement No.3924787/dt.29.10.2015.  Secondly, the complainant purchased a vehicle of his choice being a Tractor Trailer bearing Regd. No.OD-04G-8600 through loan amount of Rs.60,000/- from the O.Ps & the agreement value including interest to be repaid by the complainant was Rs.83,900/- vide loan agreement No.4078711/dt.31.01.2016. It is submitted by the O.Ps is that the complainant is a chronic defaulter in both the loan accounts till the last payment on 27.03.2018.  It is submitted by the O.Ps as per the terms & conditions of the loan agreement, if failure to make the payment of the   periodical installment in time shall amount to event default.  Further it is submitted by the O.Ps that the complainant committed a breach of the terms of the loan agreement by non-payment of her loan installments.  Hence, the conduct of the complainant has caused irreparable damage so the answering O.Ps/Financer has the right to take legal action against the complainant according to the loan agreement.
3.             The complainant in support of her case has filed the copy of the “Certificate   of Registration” of the Vehicle-Tractor bearing No.OD-04G-8599/ Dt.16.11.2015, copy of the “Registration Certificate Particulars” from the Govt. of Odisha, Motor Vehicle, Deptt., RTO, Chandikhole of the Vehicle Tractor bearing No.RA-04705573/OD-04G-8599/Dt.16.11.2015, copy of the “Registration Certificate” of the Vehicle-Trailer” bearing No.OD-04G-8600/Dt.16.12.2015, copy of the “Registration Certificate Particulars” from the Govt. of Odisha, Motor Vehicle Deptt., RTO, Chandikhole of the vehicle-Trailer Open Hydraulic Sahoo”, bearing No.RA04705572/Dt.16.11.2015, [Annexure-1] and copy of the Legal Notice for the payment of dues” on behalf of the O.Ps vide Reg. No: DN/2018/ 21960/Dt.19.03.2018 addressed to the complainant.

On the other hand, the O.Ps have not filed any supporting documents for their defense.

4.           Perusal of record clearly reveals that the complainant and her advocate remain absence since long till the date of hearing.  As per the provision of Section 38 (3)(c) of the Consumer Protection Act, 2019 deals with “Failure to appear”, read as :-

“Decide the complaint on merits if the complainant fails to appear on the date of hearing”.

            It means “where the complainant or his agent fails to appear on such dates, the Commission may decide the complaint on merit.  Thus, the present complaint petition is decide on merit by this Commission.

We have heard argument from the learned counsel for the O.Ps on 25.11.2022.In view of the complaint petition & documents therein & written version of the O.Ps, the following points are to be adjudged in this case :-

Points for Determination.

1. Whether the complainant falls under the definition of “Consumer” as per the Consumer Protection Act, 1986 ?
2. Are the O.P. No.1 & 2 deficient in their service ?
3. What relief the complainant is entitled to get ?.

Point No. 1 :-  (CONSUMER)

            Perusal of record & documents filed by the complainant, reveals that the complainant had purchased two vehicles through loan agreement and financed by the O.Ps.  It is admitted by the complainant that she has paid down payment of Rs. 2,35,000/- to purchase one Tractor having Regd. No. OD-04G-8599 and Trailer having Regd. No. OD-04G-8600.  It is also admitted by the complainant due to non- payment of some installments one lawyer’s notice was issue on behalf of the O.Ps to pay Rs.77,750/- within 7 days, on dt.19.03.2018 addressed to the complainant.

            The fact that the complainant was purchased a vehicle “Mahindra 475 BP Tractor” vide Regd. No. OD-04G-8599, Engine No RJN 101077, Colour : Red, Purpose : New on dt.16.11.2015 & another vehicle purchased namely, Trailer Open Hydraulic-Sahoo, bearing Regd.No. OD-04G-8600, Chasis No. SE511516 on dt. 16.11.2015. It is also admitted by the complainant is that the complainant already paid Rs.4,26,630/- in total.        

            Preliminary objection raised by the O.P’s is that the complainant was not a “Consumer” according to the definition as provided U/s 2(1)(d) of the Consumer Protection Act, 1986, as the complainant in her complaint petition has categorically stated that she had purchased a Tractor & Trolley @ Trailer Vehicle by obtaining loan from present O.Ps, which she was using for commercial purpose.  In this regard, Para-4 of the complaint is relevant, which read as follows:-

“ 4. That the complainant on being paid the down payment of Rs.2,35,000/- issue one Tractor having Regd. No. OD-04G-8599 & Trolley having Regd. No. OD-04G-8600.”

            Further, the learned counsel for the O. P’s has relied upon the case-laws of Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, AIR 1998 SC 1424, has held that the expression “Commercial Purpose” is a question of fact & has to be decided in the facts of the each case and clearly held that:-

“ If any person obtains any goods for commercial purpose with a view to use such good exclusively for earning profits such person has to be excluded from the purview of the Consumer Protection Act, 1986.”

Further it is strongly raised voice by the counsel for the O.P’s is that the complainant had purchased a Tractor & a Trolley (Trailer) vehicle by obtaining loan from the present O.Ps, which she was using for “Commercial Purpose” only, not for the using the said vehicle to earn her livelihood.  Applying the ratio laid down in the aforesaid Judgment since there is no pleading in the consumer complaint that the complainant was using the vehicle for earning livelihood, the present consumer complaint has to be dismissed on the said ground alone.

Thus, the O.Ps contended that the complainant is not a “Consumer” as defined under Consumer Protection Act, 1986, as she had purchased one vehicle Tractor & another Trolley (Trailer) to earn profit, that is for Commercial Purpose.  Because the complainant’s vehicle is a “Commercial Purpose” and she was financed for “Commercial Purpose”.  To resolve this issue, we deem it appropriate to refer to M/s. Natwar Parikh and Co. Ltd. Vs. State of Karnataka and others, the Apex Court held that –

“Though a trailer is drawn by a motor vehicle, it by itself being a motor vehicle, the tractor-trailer would constitute a “goods carriage” U/s 2 (14) and consequently, a “Transport Vehicle” as defined U/s 2 (47) of the Motor Vehicle Act, 1988.”

In another important Judgment in Hon’ble Karnatak High Court, “Gandhilingappa @ Gandhilinga Vs. K. Guleppa”, in Para-15 :

“ 15. Furthermore, a tractor is not a even a goods carriage.  The expression ‘goods carriage’ has been defined in Section 2 (14) to mean ‘ any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adopted when used for the carriage of goods.”

Whereas ‘tractor’ has been defined in Section 2 (44) to mean “ a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); excludes a road roller.” “Trailer” has been defined in Sec. 2 (46) to mean “any vehicle, other than a semi-trailer and a sidecar, drawn or intended to be drawn by a motor vehicle.”

“ 16. A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2 (14) of the M.V. Act.  The tractor was meant to be used for agricultural purpose.  The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise.

          x xxx            xxxx             xxxx  

In another landmark Judgment in the Hon’ble Karnataka High Court in case of United India Insurance Co. Ltd. Vs.  V. Gangappaa and ors (2005), this case, the Hon’ble Court answered the following references :

“ 5. Rule 2 (b) of Central Motor Vehicle Rules, 1989, defines agricultural tractor as non-transport vehicle.  In other words, if a tractor-trailer is specifically registered as an agricultural tractor to be exclusively used only for agricultural operation, it would be non-transport vehicle. Otherwise, it would be very much a goods vehicle and the provisions of Section 147 (I) of M.V. Act would attract.

The insurer is legally bound to issue a policy in terms of the Workmen’s Compensation Act if a tractor-trailer is a goods vehicle, as held by the Supreme Court reported in the case of National Insurance Co. Ltd. Vs.  V.Chinnanuna, at Para-15 as follows :

A Tractor fitted with a trailer may or may not answer the definition of “goods carriage” contained in Sec. 2 (14) of the M.V. Act.  The Tractor was meant to be used for agricultural purposes.  The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purposes, unless registered otherwise. 

Further, it is submitted by the O.Ps that it is not the case of the complainant that she had purchased the above vehicles for her personal use or for the purpose of earning her livelihood by means of self-employment.  It is also argued by the O.Ps that in the absence of specific pleadings in the complaint petition with regard to the use of the vehicles for earning livelihood adverse inference has to be drawn against the complainant.  Therefore, the consumer complaint as presented by the complainant is not maintainable as she is not a consumer.

But in Para-3 of the complaint petition, the complainant is stating that she is a housewife.  Para-3 read as :-

“ The complainant being a housewife having no other source of income except this vehicle therefore the complainant comes U/s 2 (1)(d) of the Act.”

We have considered the arguments of the counsel for the O.Ps and perused the record.  It is proved that the complainant had purchased the tractor-trailer (Trolley) bearing Regd. No. OD-04G-8599  &  No. OD-04G-8600 on dt. 16.11.2015 vide Loan Agreement No.3924787 & No. 4078711 respectively from the O.Ps & simultaneously such agreements are executed on 29.10.2015 & 31.01.2016.

Again, we have referred another landmark Judgment of the Hon’ble State C.D.R. Commission, Delhi in case of Malika Sethi Vs. M/s Parsunath Developers ltd. Through its Chairman/Managing Director, 2022 (3) CPR 41 (Del.) has held that :-

“Commercial Purpose: Mere allegation that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint.”

Though, as per document submitted by the complainant, wherein it is mentioned that the above Tractor-trailer’ means for transport.  But the complainant had purchased the said vehicles for her bread and butter to maintain her family.

Thus, it is proved that the complainant has established that the vehicle in question is being used by her for bread and butter for which she has maintained her and her family.

          Accordingly, the consumer complaint as presented by the complainant is maintainable as she is a ‘Consumer’ U/s 2 (1)(d) of the C.P. Act, 1986 and as a result, the question of vehicle is not for a “Commercial Purpose.”

Point No. 2 (Deficiency in Service):

It is argued by the learned counsel of the O.Ps that in the present complaint petition, the complainant has neither averred anything with regard to the deficiency in service nor with regard to negligence adopted by the present O.Ps.

In this regard, in Para-5 of the complaint petition, it is stating that the complainant paid installment dues regularly, but due to some non- payment of installments, the lawyers of the O.Ps issued a legal notice/demand notice on 19.05.2018 to pay Rs.77,750/- within seven days.  It is also admitted by the complainant that there is no deficiency in Service.

In these circumstances, it is clear that nothing is proved by the complainant relating to the deficiency in service and unfair trade practice on the part of the O.Ps.

Accordingly, the issue is answered against the complainant.

Point No. 3 (Relief): -

As per the answer of Point/Issue No. 2, the complainant is not entitled to get any relief.

                             Hence, the order.  

                                                O R D E R.

The complainant being vehicles namely, ‘The Tractor-Trailer’ is a ‘Consumer’ under the provision of the Consumer Protection Act, 1986. 

Keeping in view of the aforesaid discussion, the consumer complaint is accordingly dismissed as not proved by the complainant that there is any deficiency in service by the O.Ps. But no order as to cost.

           Pronounced in the Open Commission on this the 30^th day of December 2022.