State Consumer Disputes Redressal Commission
The Manager, Dulichand Finance & ... vs Subrata Roy & Ors. on 22 June, 2012
The instant revision petition arisen / filed out of an order dated 9
State Consumer Disputes Redressal
Commission
West Bengal
BHABANI BHAVAN (GROUND
FLOOR)
31, BELVEDERE ROAD, ALIPORE
KOLKATA 700 027
S.C. CASE NO.
: RC/116/2011
(Arising out
of order dated 09.09.2011 of Consumer Case No. 229 of 2009 of D.C.D.R.F.,
Burdwan)
Date of Filing : 31.10.2011 Date of Final Order :
22.06.2012
APPELLANTS/COMPLAINANTS :
The Manager, Dulichand
Finance &
Leasing Ltd., having its
office at
Chatterjee International
Centre, 15th
Floor, Room No. 13, 33A,
Jawharlal
Nehru Road, Kolkata 700
071.
RESPONDENTS/O.P.S :
1. SUBRATA ROY,
Son of Sri Santimoy Roy
Vill Nandigram, P.O. Chanduli
P.S. Katwa, Dist. Burdwan.
2. Manager, A. R. Automobiles
Fancy Market, Ist Floor,
Room No. 21, Dist. Burdwan.
3. HDFC BANK LTD, represented by its
Manager, 2/6, Sarat Bose Road,
Kolkata 700 020.
BEFORE : HONBLE JUSTICE :
MEMBER : Sri
S. Coari.
MEMBER : Smt.
Mridula Roy.
FOR THE PETITIONER /
APPELLANT : Mr. P. Banerjee,
Ld. Advocate.
FOR THE RESPONDENT / O.P.S. :
Mr. Debdas Rudra,
Ld. Advocate.
: O R D E R :
No. 5/22.06.2012.
MRIDULA ROY, MEMBER.
The instant revision petition arisen / filed out of an order dated 9.9.2011 in case of being No. 229 / 2009 of D.C.D.R.F. Burdwan wherein the learned forum held that the complained case was maintainable.
The factual matrix of the case before the learned forum below was that one Ajay Chowdhury purchased a vehicle after obtaining loan from HDFC bank limited to The tune of rupees 4.75 lacs which was repayable by 15 installments.
Subsequently the purchaser died and after his demise his wife and son became legal owner of the said vehicle. Both owner entrusted the complainant Subrata Roy to look after the said vehicle including payment of installment as well as to sell the vehicle.
Subsequently, the complainant could not pay the 14th and 15th installment due to family problem and paucity of fund. The O.P. financer repossessed the said vehicle forcibly without due process of law which lead the complainant to lodge an F.I.R. before the learned C.J.M. Burdwan. In course of proceeding it was found that the said vehicle was sold in auction. However the order passed by learned C.J.M. was challenged by one Priyanath Chatterjee who claimed to be purchaser of the said vehicle. A motion challenging the order of learned C.J.M. was filled before the learned additional session judge 3rd court Burdwan. Accordingly the order of learned C.J.M. set aside. Being aggrieved the complainant filed a criminal revision petition before the Honble High Court at Calcutta. Hearing both parties the Honble High Court was pleased to give liberty to the complainant to agitate the issue before appropriate forum. Hence the complainant filed the complained case praying for relief such as the direction upon the opposite parties to refund Rs. 2,49,178 to the complainant and to pay Rs.3,50,000 towards compensation and Rs. 30,000 towards litigation cost.
The O.P. financer contested the case and filed a petition challenging maintainability stating that the allegation would not be within the purview of the C.P. Act. 1986 since the complainant is not a consumer as the vehicle was used for commercial purpose.
Further, the O.P. No. 3 also filed a petition stating that since all rights, title, interest and liabilities in respect of the said loan had already been transferred to the O.P. No. 1, the name of O.P. No. 3 should be deleted from Cause Title of the case.
In respect of both of these applications the Ld. Forum below has passed the order above-mentioned.
DECISION WITH REASONS :
The moot point of the instant RC is that whether the complainant is a consumer or not.
Section
2 (1) (d) of the CP Act provides as under :
(d) consumer means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment;
In the instant case it appears that plying of the said vehicle was the only source of maintaining livelihood of the borrower. Therefore, the purpose of plying the vehicle cannot be treated as commercial one.
Further the Ops raised a point that the person who has been empowered by power of attorney cannot be allowed to depose for the principal. In support of their contention the revision petitioner has sited case of M/S Farmers Poultry Breeding Farm v M/S Punjab State Power Corporation Ltd, 2011(2) CPR 97 (NC) where in it was held that power of attorney holder cannot be allowed to depose for principal in respect of matters on which only principal can have personal knowledge and in respect of which principal is required to be crossed examined.
On the other hand there is also a decision ( CPJ 2008 vol.1 NC page 317) referred wherein the Honble NC pleased to hold that a case filed by the constituted attorney on affidavit is quite sustainable and he is entitled to be a complainant under the CP Act subject to the consideration of the evidentiary value of his evidence.
In the instant case it is evident that there is no such event where the power of attorney holder be barred from filing case.
In view of the discussion made hereinabove we are of opinion that the learned forum below has rightly held that the case is maintainable.
Further the OP no. 3 appears to be necessary party and in absence of the OP no. 3 the Complaint case can not be adjudicated. Therefore the learned forum below has rightly rejected the petition filed by the OP no. 3 with a prayer for expunge its name.
In the above mentioned state of affairs we find no merit in the revision petition.
In the result, the revision petition is dismissed on contest without cost.
MEMBER MEMBER