State Consumer Disputes Redressal Commission
1. M/S Hinduja Leyland Finance Ltd., And ... vs Sri T.Ramesh S/O Rama Koteswara Rao on 20 March, 2013
BEFORE THE CIRCUIT BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT VIJAWAYADA F.A.No.478 OF 2012 AGAINST C.C.NO.8 OF 2012 DISTRICT FORUM II VIJAYAWADA KRISHNA DISTRICT Between: 1. M/s Hinduja Leyland Finance Ltd., Head off: 167-169, 3rd Floor, Anna Salai, Saidapet, Chennai-015 rep. by its Kumaran 2. M/s Hinduja Leyland Finance Limited Branch at D.No.1, Flat No.401, 4th Floor vasantha Plaza, M.G.Road, Vijayawada rep. by its Branch Manager Sri Prabhu Kumar S/o GG Satyanarayana Rao aged 33 yrs Appellants/opposite parties A N D Sri T.Ramesh S/o Rama Koteswara Rao aged 39 years, Occ: Advocate, R/o H.No.12-91 Market Center, Kondapalli, Ibrahimpatnam Mandal Krishna District Respondent/complainant Counsel for the Appellant M/s G.Sudershan Reddy Counsel for the Respondent M/s V.Gurunadham QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE TWENTIETH DAY OF MARCH TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party is the appellant. The appeal is challenge to the order of the District Forum whereby the appellant was directed to return Tata LPT 909 bearing registration No. AP 2U 8123 to the respondent along with inventory and pay `70,000/- towards compensation and `20,000/- per month from the date of filing of complaint till the vehicle is delivered to the respondent and a sum of `3,000/- towards costs. The liability of the respondent permitted to continue under the loan agreement.
2. The case of the respondent availed loan an amount of `2,80,000/- from the appellant-company for purchase of Tata LPT 909 vehicle bearing registration number AP2U 8123. The respondent stated to have purchased the vehicle to eke out his livelihood. The appellant deducted an amount of `9,000/- towards processing charges out of the sanctioned amount and released a sum of `2,71,000/-. EMI was fixed at `11,600 which included charges for insurance premium of `20,000/-. The appellant had not furnished copy of loan agreement to the respondent.
3. The respondent entered into a contract with ARC Parcel Service to ply the vehicle on hire. The respondent requested the appellant to pay the premium. The appellant failed to renew the insurance policy. The ARC Parcel Service had terminated the contract with the respondent. One Guru Prasad representing the appellant requested the respondent not to pay EMI till premium is paid by the appellant. Some anti social elements engaged by the appellant seized the vehicle from the possession of ARC parcel service on 31.10.2011 without giving any intimation or notice to the respondent.
4. The respondent reported the matter to the police, P.S.I Town and the police did not take any action against the appellant. The respondent got issued notice to the appellant requesting the respondent to release the vehicle and pay the amount of `10,0000/- kept in the vehicle. The act of the appellant said to constitute deficiency in service on the part of the appellant.
5. The appellant-finance company resisted the claim on the premise that the respondent is bound by the terms of the Agreement. It is contended that the respondent leased out the vehicle to third party for business purpose and the District Forum has no jurisdiction to entertain the complaint. It is contended that the respondent committed default in paying the EMIs. The appellant issued notice dated 28.10.2011 to the hirer and guarantor demanding for payment of outstanding dues and the appellant issued another letter on 15.12.2011 calling on the respondent to settle the loan . The respondent, an advocate got issued notice through his advocate on 4.11.2011. The respondent had not complied with the order passed by the District Forum. Hence, prayed for dismissal of the complaint.
6. The respondent filed his affidavit and the documents, ExA1 to A17. On behalf of the appellants, Manager Legal and the Product Manager have filed their respective affidavits and the documents, ExB1 to B5.
7. The District Forum allowed the complaint on the premise that the appellant was duty bound to return the vehicle to the respondent and that repossession of the vehicle without issuing notice to the respondent amounts to deficiency in service on the part of the appellant.
8. Aggrieved by the order of the District Forum, the opposite party-bank has filed appeal contending that the respondents
9. The points for consideration are:
1) Whether the respondent is consumer within the meaning of the provisions of the C.P.Act?
2) Whether there was any deficiency in service on the part of the appellant finance company?
3) To what relief?
10. POINT NO.1 The respondent is advocate by profession and he purchased the vehicle Tata LPT 909 bearing registration No. AP 2U 8123 availing loan of `2,80,000/- from the appellant finance company. It was agreed that the respondent would repay the amount in monthly instalments @ `11,600/- per month. It is a fact agreed upon that the respondent leased the vehicle to ARC Parcel Service and he failed to pay monthly instalments whereof the appellant repossessed the vehicle on 31.10.2011.
The respondent having failed to get released the vehicle, filed the complaint seeking for return of the vehicle as also compensation.
11. The District Forum has come to conclusion that the respondent is consumer within the meaning of Sec.2(1)(d) of C.P.Act on the premise that the respondent purchased the vehicle availing loan from the appellant finance company. Availing of loan by the respondent by itself cannot entitle him to maintain complaint before the Consumer Forum. The respondent, admittedly is a lawyer by profession. It is not the case of the respondent that he has been running the vehicle by engaging a driver for the purpose of eking out his livelihood. The respondent practicing as an advocate cannot contend that he purchased the vehicle and hired it to ARC Parcel Service to eke out his livelihood.
12. In Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in CDJ 2010 SC-1177 the Honble Supreme Court held that the service availed for commercial purpose and the dispute relating thereto are not amenable to the jurisdiction of Consumer Forum. It was held:
that the goods sold by the appellant to the respondent/complainant amounted to `goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. On the one count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto CDJ 2010 SC 1177
13. The National Commission in Satish Kumar Gajanand Gupta Vs Srushti Sangam Enterprises (India) Ltd., & Anr reported in III (2012) CPJ 264 (NC) considered the case where a business man purchased the apartment to save on the expenditure incurred by him on his stay in hotels at Mumbai during his business trips and filed the complaint before the National Commission for delivery of possession etc. The National Commission had categorically opined that the transaction is related to his business activity and therefore it will fall in category of commercial purpose which has been taken out of the purview of the Consumer Protection Act, 1986.
14. In the light of authoritative pronouncement of the Honble Supreme Court and the National Commission and in the teeth of admitted commercial activity undertaken by the respondent, he cannot be termed as consumer as defined under the provisions of Consumer Protection Act. The transaction does not come under exception clause of Sec.2(1)(d) of C.P. Act.
15. For the foregoing reasons we are of the considered opinion that the respondent cannot maintain complaint before the Consumer Forum. However, we are inclined to observe that the respondent can approach civil court for redressal of his grievance.
16. In the result, the appeal is allowed setting aside the order of the District Forum. Consequently, the complaint is dismissed with liberty to the respondent to approach the Civil Court or any other Forum. In the event the respondent approaches the Civil Court or any other Forum, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
MEMBER MEMBER Dt.20.03.2013 KMK*