State Consumer Disputes Redressal Commission
Smt. Sultana Begum, Lb Nagar, Hyderabad vs The Indus Ind. Bank Ltd , Hanamkonda, ... on 12 December, 2012
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 1042/2011 against CC 582/2010 on the file of the District Consumer Forum-1, Hyderabad. Between : Smt. Sultana Begum W/o Lte Mohd Rafeeq, Aged about 43 years, occ ; Housewife R/o H No. 11-21-11, NTR Nagar, L B Nagar, Hyderabad . Appellant And The Indus Ind. Bank Ltd Rep. by its Manager, Warangal branch Office at H No. 6-1-209 &30, 1st floor, Ganapathi plaza, OPP Markazi Schoolm Hanmakonda, Warangal District. The Indus Ind Bank Lgd Rep. by its authorized signatory Office at 3rd floor, Minarva house, 94, SD road, Secunderabad .. Respondents. Counsel for the Appellant` : M/s. Mohd Mumtaz pasha Counsel for the Respondents : M/s. N. Raghuveer Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Wednesday, the Twelfth Day of December Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 19.10.2011 in CC 582/2010on the file of the District Consumer Forum-1, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :
02. The brief facts of the complaint are that one late Mohd. Raffeeq the husband of the complainant had purchased the vehicle Terax Vectra Loader bearing No. AP 36 AD 2354 by availing finance of Rs.13 lakhs from Ops bank agreeing to repay the same together with interest in 35 equal monthly installments by hypothecating the said vehicle and executed relevant documents in favour of the bank. The complainants husband also paid margin money of Rs.7,50,000/- apart from bearing other charges at the time of purchasing the vehicle and it was delivered to him with a warranty. The complainant paid a total sum of Rs.2,99,400/- to the Ops in respect of the said loan and thereafter died on 7.7.2009 leaving behind him the complainant as his legal heir. After the death of her husband the complainant plied the vehicle and paid installments to Ops and subsequently she was unable to ply the vehicle and pay monthly installments. Ops refused to effect service to the said vehicle and therefore the complainant kept the vehicle at VVC automotives , Sagar road, Hyderabad on 18.10.2009 to get it repaired and also for service of the vehicle. While the vehicle was at the said repairing and servicing center, the Ops seized it on 29.10.2009 and had taken away the vehicle. In spite of requests made by the complainant, to release the vehicle, they did not do so and on the other hand informed the complainant that they would sell the vehicle and appropriate the sale proceeds to the loan account informing that the due amount as on that date was Rs. 12,49,505/-
and also that the balance sale proceeds will be paid to her. The said vehicle was kept by the Ops to the open sky causing damage to it. They did not show any interest to sell the vehicle immediately after the seizure and settle the account as a result of it the complainant sustained heavy loss and subjected to mental agony. According to the complainant, the value for the said vehicle was Rs.17 lakhs and that the OP postponed the same on one pretext or the other and ultimately she got issued notice dt. 18.11.2009 calling upon the Ops to settle the loan account and pay the balance sale proceeds after receipt of the notice Ops replied her that they would sell the vehicle and settle the loan account but did not do so. The acts of the Ops amount to deficiency in service. Hence the complaint claiming direction to Ops to pay Rs.4,50,495/- towards balance sale proceeds for the sale of the said vehicle, Rs. 5 lakhs compensation and also costs of the complaint.
3. OP filed counter denying the allegations made in the complaint and disputing the claim and the brief facts of the counter are as under :
The deceased husband of the complainant has utilized the finance provided by the OP bank for commercial purpose and therefore the transaction, which formed the basis of the complaint are commercial in nature and therefore, the complainant and also her deceased husband do not come under the definition of consumer within the meaning of CP Act and as such the complaint is liable to be dismissed on that ground itself. Even otherwise, the Ops followed due procedure for recovery of dues from the customers, ample opportunity was given to the complainant and then only the vehicle was sold for realization of debit and that the same were reflected in notice dt. 19.11.2009. The complainant suppressed receiving of the reply notice dt. 3.12.2009 wherein elaborate explanation and their commitment towards closing of loan was given. Since the complainant did nto remit the loan amount the machinery was repossessed from VVC automotive where the machinery was kept by the deceased husband of the complainant after giving opportunity to the complainant the vehicle was sold in online auction for Rs. 12 lakhs and adjudged sale proceeds towards the outstanding loan account still the complainant is liable to pay Rs.85,287/- . the allegation that the machinery was sold for Rs.17 lakhs and that there was balance sale proceeds of Rs.4,50,000/- is incorrect and baseless and therefore prayed to dismiss the complaint with exemplary costs.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A1 to A 14 were marked on behalf of the complainant and Ex. B1 to B6 were marked for the OP.
5. Considering the material on record, the District Forum vide impugned order dismissed the complaint.
6. Feeling aggrieved with the said order the unsuccessful complainant filed this appeal on several grounds and mainly contended that the said vehicle referred to in the complaint by availing finance from the OP exclusively for his livelihood as self-employee and therefore he comes within the meaning of the consumer and that as per exceptions to clause (d) of section 2 of the said Act and that District Forum did not appreciate her case in correct perspection and that it ought to have held that she is entitled for Rs.4,50,495/- towards balance sale proceeds and also Rs. 5 lakhs compensation.
7. Heard counsel for appellant and no arguments were advanced for Ops.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. There is no dispute that the husband of the complainant had purchased the vehicle Terax Vectra Loader bearing No. AP 36 AD 2354 by availing finance of Rs.13 lakhs from Ops bank agreeing to repay the same together with interest in 35 equal monthly installments by hypothecating the said vehicle and executed relevant documents in favour of the bank. The complainants husband also paid margin money of Rs.7,50,000/- apart from bearing other charges at the time of purchasing the vehicle and it was delivered to him with a warranty. The complainant paid a total sum of Rs.2,99,400/- to the Ops in respect of the said loan and thereafter died on 7.7.2009 leaving behind him the complainant as his legal heir. The important contention raised by Ops is that the subject machinery is meant for commercial purposes and therefore the complainant who is the wife and legal representative of deceased borrower is not a consumer within the meaning of C P Act and thus she has no right to file a consumer complaint. Perusal of complaint discloses that no where she pleaded that the deceased purchased the said vehicle exclusively for livelihood under self-employment. She even did not file any rejoinder for above contention of the OP in spite of the fact that it was so pleaded by the Ops in their written version. surprisingly she did not dispute or deny it in her evidence affidavit also nor answered in the said aspect in the written arguments filed by her before the District forum. Thus we are satisfied to hold that there is no legal and dependable pleading or evidence from the side of the complainant to say that the deceased husband purchased the said vehicle for the livelihood of his family under self-employment. The said machine is heavy duty machine for higher performance of productivity at lower operating cost in excavation as well as loading/dozing application and the same indicate that the vehicle will be utilized for commercial purpose. The said vehicle is meant to be utilized for commercial purpose. It appears that to overcome the said legal hurdle the complainant designed such a plea in the grounds of appeal and therefore no credence need to give for it as it is an after thought. Thus the order of the District Forum in the said context that the complainant does not within the definition of consumer as define in section 2 (1)(d) and that the Consumer Forum has no jurisdiction to entertain the complaint is sustainable. When jurisdiction point is answered against the complainant there is no need to discuss factual aspects of the case and therefore the finding of the District Forum with regard to the factual aspects of the case touching its merits is liable to be set aside and to direct the complainant to approach the competent Court for redressal and in such an event she is entitled for exclusion of time U/s. 14 of Indian Limitation Act spent in prosecuting the case in Consumer Fora basing on the decision of reported in Laxmi Engineering Works Vs. P.S.G. INDUSTRIAL INSTITUTE DATE OF JUDGMENT 04/04/1995, 1995 AIR 1428, 1995 SCC (3) 583, JT 1995 (3) 433, 1995 SCALE (2) 626 ACT
10. In the result, the appeal is dismissed confirming the order of the District Forum with regard to jurisdiction of the Consumer Forum and the finding of the District Forum with regard to factual aspects is set aside. The complainant is at liberty to approach competent Court for redressal and in such an event she is entitled for exclusion of time spent in prosecuting the case in Consumer Forum and this Commission. No order as to costs in the appeal.
MEMBER MEMBER DATED : 12.12.2012.