TATA FINANCE LIMITED vs Sadhan Kumar Ghosh

THIS revision petition has been filed by the petitioner against the order dated 31.07.2013 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, the State Commission ) in SC Case No. FA/456/2011 The Chairman, Tata Motors and Ors. Vs. Sadhan Kumar Ghosh by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent purchased vehicle WB -41B/9623 from Bhandari Automobiles Pvt. Ltd. in December, 2005 and made down payment of Rs.59,259/ - and for rest of the amount he obtained loan from OP/petitioner under Hire Purchase Agreement dated 4.2.2006. Loan amount of Rs.9,90,000/ - was payable in 46 monthly commencing from 2.4.2006 to 2.1.2010 and 1st monthly installment was of Rs.26,850/ - and 2nd to 46 was of Rs.26,590/ -. It was further submitted that in April, 2007, due to illness, complainant could not make payment of installments and inspite of request OP re -possessed vehicle by using muscle power and assaulting the complainant s driver. Complainant approached OP No. 3 to release truck on taking part payment of Rs.1,00,000/ -, as he was not in a position to pay entire outstanding amount as complainant repaid entire loan amount to OP in respect of another truck WB -41 -B -9056. It was further submitted that OP verbally agreed to release truck subject to payment of Rs.1,00,000/ - in May, 2009 and complainant deposited Rs.50,000/ - on 28.4.2009 and Rs.53,200/ - on 28.5.2009 with OP; even then, OP refused to release the truck and on inquiry OP apprised that vehicle has been sold in auction. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP resisted complaint and submitted that complaint was not maintainable before District forum and further submitted that complainant was defaulter in making payment of installments which compelled OP to repossess vehicle after observing all the formalities and as payment was not made, vehicle was sold and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to pay Rs.9.94,059/ -. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.

HEARD learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the petitioner submitted that as complainant got two trucks financed from OP, complainant does not fall within purview of consumer. It was further submitted that vehicle was possessed after due notice and sold in auction, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that there was no plea regarding commercial transaction in the written statement and as no notice before repossession and no notice for sale of vehicle was given, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is admitted case of the complainant that he got his truck WB -41B/9623 financed from OP which was seized without due notice. In the complaint it has also been mentioned that Hire Purchase Agreement dated 4.2.2006 was executed between the parties for financing his truck. Complainant has also admitted that he obtained loan from OP for purchasing truck WB -41B/9056 and he could not make payment of installments of the disputed truck as he cleared entire outstanding amount pertaining to loan taken for financing truck WB -41 -B -9056. OP in its written statement took objection that complaint petition is not maintainable under the Consumer Protection Act.

NO doubt, no specific plea has been taken in written statement that on account of commercial transaction complaint was not maintainable, but it has been pleaded that complaint was not maintainable before Consumer Protection Act. Perusal of record further reveals that loan for finance of truck WB -41 -B -9056 was taken by complainant vide Loan -cum -Hypothecation Agreement dated 16.12.2005 whereas, loan for disputed truck WB -41 -B -9623 was taken by Agreement dated 4.2.2006. Thus, it becomes clear that loan for disputed truck was taken just after 1 months of previous loan obtained by the complainant from OP.

COMPLAINANT has nowhere pleaded in the complaint that aforesaid finance facility was taken for earning his livelihood by means of self -employment. One person cannot drive two vehicles at a time and it is not the case of the complainant that he obtained loan for disputed truck after making re -payment of loan of earlier truck or earlier truck was not fit for plying on the road at the time of Agreement dated 4.2.2006. Thus, it becomes clear that complainant obtained services of OP for financing his truck for commercial purposes and complainant does not fall within purview of consumer.

LEARNED Counsel for the petitioner has also placed reliance on judgment of this Commission in Gurbaksh Logistic India Vs. Action Construction Equipments Ltd. and Anr, 2012 2 CPJ 350 in which complaint was dismissed as complainant purchased 4 machines on different dates which could not have been used by him at one time for earning his livelihood. In the case in hand, as complainant obtained loan facility from OP for finance of his second truck just after 1 months of the loan taken for first truck, complainant does not fall within purview of consumer and complaint was not maintainable before Consumer Fora under the Consumer Protection Act.

AS far other aspects are concerned, it would not be appropriate to express any opinion on other points pertaining to proper seizure and auction of the truck because all these points are to be dealt by appropriate Forum wherever complainant initiates action against OP for deficiency in service.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and order dated 31.07.2013 passed by the State Commission in SC Case No. FA/456/2011 The Chairman, Tata Motors and Ors. Vs. Sadhan Kumar Ghosh and order dated 25.07.2011 passed by learned District Forum in D.F.Case No. 202 of 2009 Sanjib Kumar Ghosh and Ors. Vs. The Chairman, Tata Motors Finance Ltd. and Ors. is set aside and complaint stands dismissed with no order as to costs. Complainant is given liberty to approach appropriate Forum for redressal of his grievances.