State Consumer Disputes Redressal Commission
Sri Ram Transport Finance vs Gomti Prasad Tiwari on 23 May, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2013/901 (Arisen out of Order Dated in Case No. of District State Commission) 1. Sri Ram Transport Finance a ...........Appellant(s) Versus 1. Gomti Prasad Tiwari a ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN PRESIDENT For the Appellant: For the Respondent: Dated : 23 May 2017 Final Order / Judgement
RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW APPEAL NO. 901 OF 2013 (Against judgment and order dated 11-03-2013 in Complaint Case No. 143/2012 of the District Consumer Forum, Faizabad ) Shriram Transport Finance Co.Ltd.
...Appellant Vs. Gomti Prasad Tiwari ...Respondent BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT For the Appellant : Sri Manu Dixit, Advocate.
For the Respondents : Sri Nalin Lochan Shukla, Advocate. Dated : 04-07-2017 JUDGMENT PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
This is an appeal filed under Section-15 of the Consumer Protection Act 1986 against judgment and order dated 11-03-2013 passed by the District Consumer Forum, Faizabad in Complaint Case No. 143 of 2012 Gomti Prasad Tiwari V/s Shriram Transport Finance Company Limited, Fatehganj, Faizabad whereby the District Consumer Forum has passed following order in Hindi as extracted below:-
विपक्षी को आदेशित किया जाता है कि वह परिवादी को क्षतिपूर्ति के मद में रूपये 25,000/- रूपये पच्चीस हजार मात्र तथा परिवाद व्यय के मद में रूपये, 1,500/- रूपये एक हजार पॉच सौ मात्र का भुगतान आदेश की दिनांक से 30 दिन के अन्दर करें। विपक्षी को यह भी आदेश दिया जाता है कि वह परिवादी से वाहन कब्जे में लिये जाने की कीमत दिनांक 27-04-2012 से तथा आदेश की दिनांक से 30 दिन बाद तक कोई ब्याज वसूल नहीं करेगा। परिवादी द्वारा देय बकाये की धनराशि रूपये 51,256/- रूपये इक्यावन हजार दो सौ छप्पन मात्र में परिवादी के क्षतिपूर्ति व वाद व्यय की धनराशि समायोजित की जाएगी। परिवादी विपक्षी को जब पूरा :2: भुगतान कर देगा तो उसके तत्काल बाद विपक्षी परिवादीके वाहन को अवमुक्त कर देगा। परिवादी विपक्षी परिवादी के वाहन को अवमुक्त कर देगा। ओ0डी0 चार्ज को विपक्षी परिवादी से आदेश की दिनांक सं 30 दिन के बाद से परिवादी द्वारा भुगतान न करने पर वसूल करेगा।
Feeling aggrieved with the judgment and order passed by the District Consumer Forum, opposite party of complaint Shriram Transport Finance Company Limited has filed this appeal before State Commission.
Learned Counsel Mr. Manu Dixit appeared for appellant.
Learned CounselMr. Nalin Lochan Shukla appeared for respondent.
I have heard learned Counsel for the parties and perused impugned judgment and order as well as records.
Learned Counsel for the appellant has contended that the District Consumer Forum, Faizabad has no territorial jurisdiction to entertain complaint. As such, the impugned judgment and order passed by the District Consumer Forum, Faizabad is without jurisdiction and against law.
Learned Counsel for the appellant has contended that the vehicle in question was for commercial purpose. As such, the complainant is not a consumer covered with Section 2(1)(d) of the Consumer Protection Act 1986 and complaint filed by him is not maintainable under the Act. He has further contended that the complaint is barred by provisions of Arbitration and Conciliation Act 1996 also.
Learned Counsel for the appellant has contended that the vehicle has been repossessed by the appellant in accordance with the terms and conditions of the agreement entered into between the appellant and respondent/complainant. The appellant has committed neither deficiency nor unfair trade practice in repossession of vehicle.
Learned Counsel for the appellant has contended that the impugned judgment and order passed by the District Consumer Forum is erroneous and is liable to be set aside.
Learned Counsel for the respondent has contended that the impugned judgment and order passed by the District Consumer Forum is in accordance with law and evidence.
Learned Counsel for the respondent has further contended that the :3: agent of appellant has taken possession of vehicle against provision of law as well as terms and conditions of agreement. As such, the appellant has committed deficiency in service.
Learned Counsel for the appellant has referred following case laws.
Cholamandalam Investment and Finance Co. Ltd. V/s The State of A.P. reported in (2015) 1 ALD(Cri) 450.
Kotak Mahindra Prime Ltd. V/s Pawan Kumar and another reported in 2016(1) CPR 539(NC).
M/s. Mahindra and Mahindra Financial Services Ltd. V/s Aslam Sarfaraj Shaikh and others reported in 2016(1) CPR 227(NC).
Indusind Bank Limited and others V/s Gurusiddapp Basavaraj Menasinkai and others reported in 2016(1) CPR 327 (NC).
ICICI Bank Limited and another V/s Arvind Kumar Gupta and others reported in 2016(1) CPR 505 (NC).
Anup Sarmah v/s Bhola Nath Sharma and others reported in 2013(1) Law Herald (SC) 160.
Suryapal Singh V/s Siddha Vinayak Motors and another reported in II(2012) CPJ 8(SC).
Orix Auto Finance (India Ltd. V/s Jagmander Singh and another reported in (2006) 2 Supreme Court Cases 598.
Axis Bank Limited and another V/s S. Venugopal Naidu repsorted in I(2015) CPJ 244 (NC).
Berar Finance Limited V/s Satish Kumar Prabhakarrao Borker reported in I(2015) CPJ 228(NC).
Ram Pal Singh V/s General Manager, Shri Transport Finance Co. Ltd. decided by Hon'ble NCDRC in Revision No. 187 of 2012 on 24-01-2013.
Surendra Kumar Sahoo V/s Branch Manager, Indusind Bank decided by Hon'ble NCDRC in Revision No. 3319 of 2012 on 01-10-2012.
Shriram Transport Finance Co. Ltd. V/s Chaman Lal decided by Hon'ble NCDRC in Revision No. 689 of 2012 on 14-09-2012.
M/s. Magma Fincorp Limited V/s Subhankar Singh decided by Hon'ble NCDRC in Revision No. 1552 of 2011 on 13-07-2012.:4:
Surendra Kumar Agarwal V/s Telco Finance Limited and another reported in II(2010) CPJ 163(NC).
Diptimayee Sahu V/s ICICI Bank Limited reported in II(2010) CPJ 48(NC).
Postal Life Insurance V/s Vinod Kumar reported in II(2010) CPJ 50 (NC).
Parameswari V/s V.S.T. Service Station and others reported in II(2010) CPJ 45(NC).
M/s. Mahindra & Mahindra Financial Services Ltd. and others V/s Ramesh Sawant reported in 2017(1) CPR 637 (NC).
Jaleshwar Shah V/s M/s. Cholamandalam Investment & Finance Co. Ltd. reported in 2017(2) CPR 95 (NC).
Swastik Gases P. Ltd. V/s Indian Oil Corp. Ltd. reported in 2013 Legal Eagle(SC) 474.
Sonic Surgical V/s National Insurance Co. Ltd. reported in 2009 Legal Eagle(SC) 1378.
Rajasthan State Electricity Board V/s Universal Petrol Chemical Limited reported in 2009 Legal eagle(SC) 19.
Hanil Era Textiles Limited V/s Puromatic Filters (P) Limited reported in 2004 Legal Eagle(SC) 413.
Shriram City Union Finance Corporation Limited V/s Rama Mishra reported in 2000 Legal Eagle(SC) 1636.
Angile Insulations V/s Davy Ashmore India Limited reported in 1995 Legal Eagle(SC) 521.
Ashok Kumar Ajmera V/s Hindustan Petroleum Corporation Limited and others reported in 2010 Legal Eagle 2568.
Birla Technologies Limited V/s Neutral Glass and Allied Industries Limited reported in 2010(8) Supreme 613.
Laxmi Engineering Works V/s Rs.G. Industrial Institute reported in 1995 Legal Eagle(SC) 473.
Cheema Edngineering Services V/s Rajan Singh reported in 1996 Legal Eagle(SC) 1763.
Bhardwaj Industries V/s Premier Limited and another reported in I(2014) CPJ 146 (NC).:5:
Balbir Singh V/s Punjab Urban Development Authority and another reported in IV(2013) CPJ 328(NC).
Shikha Birla V/s DLF Retailers Developers Ltd. reported in I(2013) CPJ 665(NC).
M/s. Indusind Bank Ltd. V/s Avtar Singh decided by Hon'ble NCDRC on 02-05-2013 in Revision Petition No. 3266 of 2012.
M/s. Tata Finance Limited V/s Sadhan Kumar Ghosh and others decided by Hon'ble NCDRC on 21-04-2015 in Revision Petition No. 3865 of 2013.
Srei Equipment Finance Private Limited V/s Ibrahim Khan decided by Chhattisgarh State Commission on 28-04-2014 in Appeal No. 577/2013.
Satyawati Chemicals V/s Transparent Energy System Pvt. Ltd. reported in III(2013) CPJ 4B(CN (Mah.).
G.M.A.C. Financial Services India Ltd. V/s Keni Hotels reported in II(2013) CPJ 100.
Vandana Global Limited V/s M/s. Jaypee Engg. & Hydraulics Equipment Company Limited and others decided by Chhattisgarh State Commission on 12-03-2014 in Complaint No. 13/2006.
Learned Counsel for the respondent has also referred following case laws.
Shriram Umrao V/s Managing Director, Industrial Bank Limited and others reported in 2012 Pram.Ni.Pra 744(Civil).
I have perused case laws referred by learned Counsel for the parties.
I have considered the submission made by learned Counsel for the parties.
In brief relevant facts for determination of appeal are that the complainant/respondent has filed complaint before District Consumer Forum with allegation that he purchased a Bajaj Auto Three Wheeler bearing registration No.U.P.42T/9033 by making investment of Rs.35,000/- and taking loan of remaining amount from the appellant Finance Company for the purpose of providing employment to his unemployed son. He paid monthly instalments of loan regularly. But when his said auto rickshaw was seized by A.R.T.O. he could not pay two monthly instalments of loan.:6:
Thereafter he contacted the agent of appellant/opposite party on 27-04-2012 and assured to make payment of Rs.25,000/- on the next day. But in the meantime agent of appellant/opposite party alongwith unknown persons has taken possession of auto rickshaw forcefully and unlawfully.
The appellant/opposite party filed written statement before District Consumer Forum wherein it has been stated that the respondent/complainant has taken loan of Rs.1,38,116/- which was payable in 22 monthly instalments each of Rs.6,278/- but the complainant/respondent repaid only Rs.86,807/- . Rs.51,256/- + OD was due against him. As such the vehicle was repossessed by appellant Finance Company.
In written statement it has been further stated that the complainant is not a consumer covered with Consumer Protection Act1986 and the complaint is barred by provisions of Arbitration & Conciliation Act 1996 also.
After having gone through pleadings of the parties as well as evidence on record the District Consumer Forum has drawn conclusion that the appellant/opposite party has taken possession of vehicle otherwise than in due course of law and has committed deficiency in service. As such the District Consumer Forum has allowed complaint and passed above order accordingly.
Perusal of written statement filed by appellant/opposite party shows that no plea of territorial jurisdiction has been raised before District Consumer Forum, Faizabad. Further more the vehicle is alleged to have been taken in possession by the appellant unlawfully in District Faizabad. As such, the cause of action for the complaint has arisen in District Faizabad and the District Consumer Forum, Faizabad has jurisdiction to entertain the complaint. Considering all aspects of the case I am of the view that it is incorrect to say that the District Consumer Forum, Faizabad has no territorial jurisdiction to entertain complaint.
In para 2 Aa of complaint the complainant has specifically stated that he purchased a auto-rickshaw Bajaj Three Wheeler in question by making investment of Rs.35,000/- and taking loan of remaining amount from appellant Finance Company for the purpose of providing employment to his unemployed son. As such, I am of the view that the case of complainant is :7: covered with explanation added to Section 2(1)(d) of the Consumer Protection Act 1986 and the complainant is a consumer under Section 2(1)(d) of the Consumer Protection Act 1986. As such, the complaint filed by him is maintainable under the Act.
Provisions of the Consumer Protection Act 1986 are in addition to provisions of any other law in force. As such the complaint filed under this Act is not barred by provisions of Arbitration and Conciliation Act 1996.
Averment made in complaint itself shows that the instalments of loan were due against the respondent/complainant. As such, considering the terms and conditions of loan agreement repossession of vehicle by the appellant Finance Company cannot be said to be against law.
Considering all facts and circumstances of the case as well as pleadings of the parties I am of the view that Rs.25,000/- compensation awarded by the District Consumer Forum to respondent/complainant should be set aside.
Indisputably respondent/complainant has not deposited Rs.58,000/- with appellant/opposite party in pursuance of interim order dated 28-06-2012 passed by District Consumer Forum to get release of vehicle in question. Outstanding balance amount of loan Rs.51,526/- is still unpaid. Considering all facts and circumstances of the case I am of the view that the respondent/complainant should be given opportunity to deposit balance amount of loan within two months to get release of vehicle and in case of default in payment of balance amount of loan within stipulated period the appellant/opposite party should be given liberty to proceed further with the sale of vehicle and other recovery proceedings in accordance with law and terms of loan agreement.
In view of conclusion drawn above appeal is allowed partially. Rs.25,000/- compensation awarded by the District Consumer Forum to respondent/complainant is set aside and the impugned judgment and order passed by the District Consumer Forum is further modified to the effect that the appellant/opposite party shall release vehicle in question in favour of respondent/complainant on payment of Rs.51,526/- the balance amount of loan within two months from the date of this judgment. If said amount is not :8: paid by respondent/complainant within stipulated period the appellant/opposite party shall be at liberty to proceed with sale of vehicle and other recovery proceedings in accordance with law and terms of loan agreement.
Parties shall bear their own costs in complaint as well as in appeal.
Rs.13,250/- deposited under Section-15 of the Consumer Protection Act 1986 in this appeal shall be refunded to appellant with interest accrued.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A H KHAN ) PRESIDENT Pnt.
[HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN] PRESIDENT