SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal seizure of the complainant’s vehicle are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that, complainant to maintain her livelihood had purchased an auto rickshaw on dt.23.09.13 being financed by OP No.1. The Registration number of the auto rickshaw is OD-29-A1660. After purchasing the auto rickshaw said vehicle was plying by engaging one driver. Complainant paid an amount of Rs.44,800/- as down payment and it was agreed between the parties that the balance amount will be paid instalment basis. The complainant was paying monthly instalments regularly till the month of December,2014. But it is the case of the complainant that the Ops without any intimation seized the vehicle of the complainant on dt.07.01.2015 and the vehicle is kept in the stockyard of OP No.2. The complainant lastly in the month of December,2014 paid Rs.5970/- and requested the Ops to release the vehicle which was refused by the Ops. It is alleged that such illegal seizure of the vehicle by Ops is treated as deficiency in service which gives financial loss and mental agony to the complainant. The cause of action of the instant case arose on different dates lastly on dt.01.03.2015 when the Ops refused to return the vehicle, hence it is prayed that a direction may be given to Ops to release the vehicle and to pay Rs.50,000/- towards mental agony alongwith Rs.5,000/- as cost of litigation.
3. Upon notice Ops appeared through their Ld. Counsel and filed written version into the dispute challenging the maintainability of the complaint alongwith parawise reply. Ops challenged the maintainability of the complaint in following grounds.
(A) It is averred in the written version that the complaint can not be treated as ‘consumer’ as per Section-2(d) of C.P.Act as the complaint by availing the finance to ply her auto rickshaw by engaging a driver. Hence, when a borrower engage a driver to ply her vehicle she is excluded from the definatition of ‘consumer’ as per Sec.2(d) of C.P.Act, hence the finance availed was not meant exclusively for maintaining her livelihood. In support Ops cited the decision of the Hon’ble Apex Court in Laxmi Engineering Works-Vrs-PSG Industrial Institute,1995,AIR-SC-1428.
(B) The next point of maintainability on the ground of ‘Law of Equity’. It is stated in the written version that the complainant has not approached this Forum in clean hand as she was a defaulter in respect of payment of EMI’s.
(C) As per the agreement of finance, it is agreed between the parties to resolve the dispute as per the Arbitration clause, which excludes the jurisdiction of the Consumer Forum.
(D) Further citing a number of decisions including decision of our own State CDR Commission in case of Deepak Sahoo-Vrs-Indusind Bank Ltd.,where it is clearly observed that the relation between ‘hirer’ and the ‘financer’ is beyond the purview of consumer laws.
Ops in their parawise reply denied the allegations of the complainant and submitting the facts it is stated that complainant was a regular defaulter in respect of payment of EMI’s for which demand notice was issued on dt.03.01.2015 and dt.20.12.14 through regd. Post(Copy of the said demand notice are filed into the dispute). On non-compliance of the
demand notice by the complainant Ops seized the vehicle lawfully on dt.07.01.15 by intimating the concerned Police Station. As per the agreement which is a valid contract the OP-Bank auctioned the said vehicle on dt.23.03.15 when the complainant ignored the pre auction sale notice dt.10.01.2015 and dt.20.01.15 which was sent through the Regd. Post. In the written version the Ops further emphasized on the cause of Arbitration and submitted that the Ops has seized and auctioned the vehicle as per the law and no deficiency in service has been committed, hence the complaint is liable to be dismissed.
4. Heard the arguments advanced by the Ld. Counsels for the parties,gone through the written notes on argument,citations and copy of letters, money receipts and documents filed into the dispute. It is an admitted fact that complainant by executing an agreement availed a finance from the agreement availed a finance from the OP-Bank to purchase an auto rickshaw which bears the Regd.NO.OD-29-A-1660. It is further admitted that the vehicle in question was repossessed by the OP-Bank on dt.07.01.15.
Before discussing the facts of the dispute as the Ops have raised the issue of maintainability. We think it proper to discuss the legal position of the complaint first. It is argued that the complainant can not be treated as ‘consumer’ as per Sec.2(d) of C.P.Act,1986, as in the para-2 of the complaint petition complainant herself admits that the financed vehicle was plying by engaging a driver accordingly as per the decision of the Hon’ble Apex Court in Laxmi Engineering Works-Vrs-PSG Industrial Institute’ the present complainant can not be treated as a ‘consumer’. We, completely agreed with the submissions as the same is not countered by the complainant by citing any relevant decisions.
Further, the Ops raised the clause of Arbitration as per the agreement which debars the complainant to knock the door of Consumer Forum. In this regard we rely on a decission of the Hon’ble Apex Court in case of Fair Air Engineers Pvt. Ltd.-Vrs- N.K.Modi(1996) III CPJ 1(SC), which clarifies the provisions of Section-3 of C.P.Act,996, where there is an Arbitration Clause.
So far the law of equity is concerned, same will be discussed in the later part of this order. Regarding the relationship of complainant and OP as raised by the OP is termed as ‘hirer’ and ‘financer’ and the decisions cited before us, we agreed the decisions as the same is not countered by presenting any befitting decisions.
Discussing the facts of the dispute the complainant challenged the seizure of the vehicle is illegal as no intimation has been given prior to seizure of the vehicle It is further challenged that though the comaplainant has paid Rs.5970/- in the month of December,2014 the OPs did not release the vehicle of the complainant. In support of her claim the complainant filed Xerox copies of computer generated money receipts showing the payment of EMI’s. On the otherhand OP-Bank submits that complainant is defaulter in respect of his payment of EMI’s as per the agreement for which demand notice was issued through Regd. Post on dt.20.12.14 and on dt.03.01.15. The attested Xerox copaies were filed. On its perusal it is seen that complainant defaulted in her payments and has not answered/challenged the demand ‘notrice’ when the same is delivered to her by Regd. Post. Now, it is clear that OP-financer has taken all the lawful steps before seizure of the disputed vehicle by sending ‘notice’ dated 20.12.14 and dt.03.01.15 further intimation has been given to the concerned police station regarding repossession of the vehicle.
In addition to the above facts complainant filed an interim application on dt.18.03.15 along with complaint bearing I.A.No.9/15 praying for a direction to the Ops not to put in auction of the vehicle and release of the same. This Forum after an ex-parte hearing of the petition vide Order No.2 dtd.20.03.15 directed the Ops not to go for the auction and to release the vehicle. The said order was dispatched on dtd.23.03.15. The written version filed by Ops reveals that the vehicle was put into auction on dt.23.03.15 before receiving interim order of the Forum. That apart, 2 nos. of letters were sent to the complainant i.e..on dt.10.01.15 and dt.20.01.15 by Regd. Post after seizure and prior to auction of the vehicle providing an opportunity to the complainant to settle the dispute. But, we found that the complainant did not response to those letters. So, it is clear that Ops have not committed any error by putting the vehicle in auction. Accordingly the I.A. Case bearing No.9/15 was dropped vide Order No.10 dt. 03.08.15. The written version of OP does not speak single sentence regarding result of auction proceeding of the said vehicle.
However, as per the aforesaid discussions we are of the opinion that the Ops have not committed any deficiency in service by repossessing and selling the vehicle through auction and Ops have given notices before repossession and auction of the vehicle. Hence, we freed the Ops from the allegations of deficiency in service.
O R D E R
Having observations reflected above, the complaint is dismissed on contest.
No order as to cost.
Pronounced in the open Court, this the 14th day of October,2015.
