State Consumer Disputes Redressal Commission
Escort Finance Ltd., vs Shankar Vitthal Gajbhare, on 18 October, 2013
1 F.A.No. :347&472/2007
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing:23.04.2007
Date of order:18.10.2013
FIRST APPEAL NO.: 347 OF 2007
IN COMPLAINT CASE NO. : 74 OF 2005
DISTRICT FORUM : AURANGABAD.
1. The Manager,
Escort Finance Ltd.,
Aurangabad Division,
1st Floor, Banjara Hotel,
In front of St.Francis High School,
Jalna Road, Aurangabad.
2. The Manager,
Escort Finance, N-6, Pratap Building,
Cannot Circle, New Delhi-110044.
Both through their authorized signatory
Manojkumar Mishra S/o Late Mr.K.R.Mishra,
R/o E-1, 103, Mohanpuram Co.op.Hsg.Society,
Near Gurukul School, Kansai Section,
Ambarnath, Thane. ...APPELLANTS
VERSUS
1. Shankar Vitthal Gajbhare,
R/o Amthana, Tq.Sillod,
Dist.Aurangabad.
2. Deleted. ...RESPONDENTS.
2 F.A.No. :347&472/2007
Date of filing:23.04.2007
Date of order:18.10.2013
FIRST APPEAL NO.: 472 OF 2007
IN COMPLAINT CASE NO. : 74 OF 2005
DISTRICT FORUM : AURANGABAD.
Shri.Shankar Vithal Gajbhare,
R/o Amthana, Tq.Sillod,
District Aurangabad. ...APPELLANT
VERSUS
1. The Manager,
Kisan Agency,
Pandharpur, Gut No.144,
Near Ludhiyana Dhaba,
Asha Nagar, Nagar Road,
Aurangabad.
2. The Manager,
Escort Finance Company (Aurangabad
Division), 1st floor, Hotel Banjara,
Opp.St.Francis High School,
Jalna Road,
Aurangabad.
3. The Manager,
Escort Finance Company,
N-6, Pratap Building,
Cannaught Circle,
New Delhi - 110044. ...RESPONDENTS.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.U.N.Shete for org.opponents, Adv.Shri.Sachin Chavan for complainant.
3 F.A.No. :347&472/2007O R A L JUDGMENT (Delivered on 18th October 2013) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Both these appeals are directed against the judgment and order dated 28.02.2007 passed by District Consumer Forum Aurangabad allowing the consumer complaint directing opponent No.2 Manager, Escort Finance company to return the tractor to the complainant within six weeks else to pay compensation of Rs.500/- per day. However, opponent No.2 is directed to pay the complainant compensation of Rs.5000/- and Rs.1000/- more towards cost of the proceedings.
2. Appeal No.347/07 is filed by opponents No.2 & 3 and appeal No.472/07 is filed by complainant Shankar. As both the appeals are arising out of same judgment and order we have decided to dispose of these appeals by this common judgment.
(For the sake of brevity appellant in appeal No.472/07 is hereinafter referred as 'complainant' and appellants in appeal No.347/07 are referred as 'opponents' )
3. The brief facts giving rise to these appeals are that:-
On 28.2.2004 complainant Shankar purchased tractor bearing registration No.MH-20-AB/1800 from opponents for a consideration of Rs.3,70,000/-. On the same day he borrowed loan of Rs.2,70,000/- from opponent No.2. It was agreed to repay the loan with interest by 10 monthly instalments of Rs.42,843/- and executed deed of hypothecation in favour of opponent No.2. According to the complainant, he issued 10 4 F.A.No. :347&472/2007 cheques in favour of opponent No.2. However, on 15.7.2004 he paid to opponent No.2 amount of first instalment by cash and opponent finance company has not presented any cheque. However, on 28.5.2005 opponent No.2 without any prior notice forcefully took the possession of the tractor. It is also alleged that there was manufacturing defect in the tractor but opponents failed to repair tractor during warranty period also. Thus according to the complainant there was deficiency in service on the part of opponents. It is submitted that due to illegal repossession of the tractor, complainant is prevented from getting daily income of Rs.2000/- and also sustained loss in agriculture income. Therefore alleging deficiency in service on the part of opponents complainant has filed this complaint claiming damages of Rs.2 lakhs and compensation of Rs.6 lakhs from opponent Nos.2& 3 and Rs.2 lakhs more from opponent No.1.
4. Opponent Nos.2 & 3 by their written version resisted the complaint contending inter alia that consumer complaint is not maintainable as complainant had purchased the tractor for commercial purpose and therefore he is not their consumer. They have denied that complainant paid the amount of first instalment by cash. They have submitted that on 31.7.2004 they had presented the cheque in the bank but same is dishonored. Therefore on 31.01.2005 their representative contacted the complainant and asked to pay amount of dues but he has shown his inability to pay any amount and surrendered the tractor. They have denied that they have seized tractor forcefully. They have denied all other adverse averments made by the complainant and submitted to dismiss the complaint.
5. Opponent No.1 also by its separate written version resisted the complaint and denied the complainant's claim in toto.
5 F.A.No. :347&472/20076. On hearing both sides and considering the evidence on record, District Consumer Forum held that opponents illegally seized the tractor and therefore opponent No.2 is liable to return the vehicle. In keeping with these findings District Consumer Forum partly allowed the complaint as noted above.
7. Feeling aggrieved by that judgment and order opponent No.2 & 3 have filed appeal No.347/2007 and not being satisfied with the same judgment and order, complainant has filed the appeal No.472/2007.
8. We heard learned counsel for both sides, perused their written notes of arguments and also copies of complaint, written version, deed of agreement and copies of other documents. Mr.Shete learned counsel appearing for opponents submitted that complainant had purchased the tractor for commercial purpose and therefore though it is specifically averred by opponents that consumer complaint is not maintainable as complainant is not their consumer as defined U/s 2(1)(d) of Consumer Protection Act 1986, District Consumer Forum without deciding this material issue committed grave error by allowing complaint holding that opponents committed deficiency in service etc. It is submitted that when the complainant has specifically pleaded that he was using the tractor for earning and was getting daily income of Rs.2000/- itself is suffice to hold that he has purchased the tractor for commercial purpose and therefore consumer complaint itself is not maintainable. On perusal of copy of complaint we find much force in the submission of Shri.Shete learned counsel for the opponents. Even this fact is not at all denied by complainant. Mr.Chavan learned counsel appearing for complainant could not explain as to how consumer complaint is maintainable when the tractor was purchased by the complainant for commercial purpose. Therefore we have no hesitation to accept the argument advanced by learned counsel for the opponents.
6 F.A.No. :347&472/20079. Moreover, Mr.Shete learned counsel for the opponents submitted that though the complainant had agreed to repay the amount of loan by monthly instalments, he failed to pay amount of first instalment. The cheque which was issued by complainant is also bounced and therefore when the representative of opponents contacted complainant asking him to pay dues, he shown inability to pay any amount and he himself surrendered the vehicle. But complainant has falsely alleged that opponents have forcefully seized the vehicle etc. Shri.Chavan learned counsel for the complainant also could not explain as to how cheque was bounced. Further he also could explain as to why complainant failed to pay dues though pre-sale notice was served. Therefore when the vehicle was surrendered by complainant he is estopped from claiming any relief. In support of arguments advanced by Shri.Shete learned counsel for the opponents he has relied on the decision dated 14.7.2010 of this Commission in the case of ICICI Bank -Vs- Suresh Baban Gadekar and another, in which it is held by this Commission that when the complainant surrendered the vehicle, he is estopped from claiming any relief. Moreover it is also held that when the complainant himself has averred that he had purchased tractor for commercial purpose, consumer complaint is not maintainable.
10. In view of undisputed fact that complainant had purchased the tractor for commercial purpose, complainant can not be said to be consumer of opponents and therefore consumer complaint is being not maintainable etc. complaint ought to have been dismissed. But it appears from the copy of impugned judgment and order that District Consumer Forum without deciding this preliminary issue wrongly jumped to the conclusion that appellant committed deficiency in service. Such erroneous finding cannot be sustained.
7 F.A.No. :347&472/200711. In the result, opponents succeed and their appeal deserves to be allowed, whereas the complainant fails and his appeal deserves to be dismissed. Hence the following order.
O R D E R
1. Appeal No.347/2007 filed by opponents is allowed and
impugned judgment and order is set aside.
2. Appeal No.472/2007 filed by complainant is dismissed.
3. Complaint stands dismissed.
4. No order as to cost.
5. Copies of the order be sent to both the parties.
Sd/- Sd/- Sd/- K.B.Gawali Uma S.Bora, S.M.Shembole, Member Member Presiding Judicial Member Mane