Order No. 19 date: 06-08-2018

Record is put up today for passing order in respect of IA/229/2017, being moved by the OPs.

By such petition, it is submitted by the OPs that the Complainant is not a consumer and hence, the present case is not maintainable.  It is further submitted that since the Complainant purchased the subject vehicle for commercial purpose, this case is not maintainable.  Maintainability of the case has also been disputed contending inter alia that the relationship between the Complainant and OPs being that of debtor and creditor, this complaint case is a misfit here.  Lastly, it is submitted that the subject matter of the instant complaint filed by the Complainant is covered and governed by the Banks and Financial Institution Act, 1993 and therefore, the present case filed under the 1986 Act is bad in law and cannot be proceeded with.

Heard the parties in the matter and gone through the documents on record.

The hire-purchaser may be consumer depending upon the facts and circumstances of the case.  When the hire purchaser’s allegation is in respect of deficiency in service, he can approach the Consumer Forum/Commission as a consumer. Said legal position was accepted in Manager, St. Mary’s Hire Purchase (P) Ltd. v. N.A. Jose [(1995) 3 CPJ 58 NC].

There is no dispute that the Complainant took a loan from the OPs for purchasing the subject vehicle. There is also no dispute that the vehicle was seized by the OPs. It is alleged in the petition of complaint that the OPs acted completely illegally in seizing the subject vehicle by adopting fraudulent practice.   

It appears that although the OPs initiated an arbitration proceeding and obtained an ex parte order, subsequently the said order was set aside by the Ld. City Civil Court, Calcutta.

Thereafter, the Complainant, communicating the order passed by the Ld. City Civil Court, Calcutta, asked the OPs to handover possession of the subject vehicle to the Complainant, but they did not act upon it.  Against this backdrop, the complaint case is filed.

The nature of dispute centres around the fact as to whether there was any deficiency in service in the matter of repossession of the subject vehicle and non-return of the same to the Complainant.  Thus, emboldened by the decision referred to above, I hold that the present complaint case is very much maintainable before this Commission. 

Ld. Advocate for the OPs at the time of argument contended that the petition of complaint does not make it clear that the Complainant purchased the said vehicle for the purpose of maintenance of her livelihood by means of self-employment though it was incumbent on her part to state so in crystal clear terms. 

On the other hand, Ld. Advocate for the Complainant submitted that since the complaint case is at its preliminary stage, if indeed there remains any technical defect, that can be duly taken care of and rectified without much problem.  In this regard, he also clarified that even if a driver is employed to run a vehicle, that is no hindrance in the matter of moving a complaint case as even then Complainant would have continued to earn her livelihood from it and of course, by means of self-employment.  In this regard, he refers to the decision of Hon’ble Supreme Court in Madan Kumar Singh (D) Thr. LR. V. Distt. Magistrate, Sultanpur & Ors., (2009) 9 SCC 79. 

Coming to the issue of implication of Banks and Financial Institution Act, 1993, I feel that, in view of the provisions laid down u/s 3 of the Consumer Protection Act and more so, since the 1993 Act put no specific bar upon Consumer Forum to adjudicate such disputes, objection of the OPs is not tenable here.

Considering all aspects, particularly in view of the assertion of the Ld. Advocate for the Complainant that the petition of complaint would be suitably amended to remove the trifle technical defect, I find no reason whatsoever to allow the maintainability petition of the OPs. 

IA/229/2017 stands rejected as such. Fix 01-11-2018 for filing amended petition of complaint.