This revision petition has been filed by the petitioner M/s. Shriram Transport Finance Co. Ltd. against the order dated 10.02.2016 of the State Consumer Disputes Redressal Commission, Maharashtra (in short ‘the State Commission’) passed in Appeal No.A/15/249.
2. Brief facts of the case are that the complainant had purchased Tata Trailer for total cost of Rs.20,29,633/-. For the cost of the said vehicle complainant had paid an amount of Rs.4,54,521/- and for remaining amount of Rs.16,20,000/- he had obtained loan in the year 2008 from the Opposite Party’s finance Company and had entered into Loan cum Hypothecation agreement. Loan was disbursed to the complainant. The Complainant was irregular in re-payments of EMIs & committed defaults in repayments in the year 2008 and 2009. Due to persisting defaults, the Opposite Party Company resorted to repossession of the Vehicle on 07.06.2009 and later, sold the vehicle by public auction for an amount of Rs.11,50,000/-. The complainant lodged complaint on 25.02.2011 claiming compensation for forcible repossession and Sale of Vehicle without due process of law. Complainant prays to direct OP to pay an amount of Rs.18,76,707/- and to return back 4 blank signed cheques on SBI which were taken by Opposite Party. District Forum vide its order dated 31.01.2015 held Opposite Party guilty of illegally taking repossession and sale of complainant’s vehicle without following any lawful procedure. District Forum directed Opposite Party to pay the entire amount of Rs.4,54,521/- paid by complainant towards margin money & down payment together with interest of 8% and an amount of 4,05,000 paid towards loan to OP together with interest @ 8%; to pay 1 lakh towards physical & mental harassment, 1lakh for business loss & 5,000 towards litigation expenses. Further directed Opposite Party to return back 4 blank cheques of SBI taken from the complainant. Opposite Party filed an appeal wherein State Commission vide its order dated 10.02.2016 partly allowed the appeal and set aside the order of payment of 1lakh on account of business loss & reduced the awarded compensation for mental agony from Rs.1 lakh to 25,000/-.
3. Hence, revision petition has been filed by Opposite Party.
4. Learned counsel for the petitioner stated that the State Commission has ignored the fact that the petitioner has not violated the procedure for repossession and sale of the vehicle. Learned counsel for the petitioner further stated that the contention of the respondent that the petitioner forcefully repossessed the vehicle in question without following the due process of law is wholly unfounded and contrary to the records. In fact, the petitioner had prior to the repossession, issued the notice dated 13/01/2009 and soon after the repossession issued a communication to the respondent by telegram. Thereafter petitioner had issued notices dated June 2009 and 08/08/2009 calling upon the respondent to pay the due amount failing which the vehicle would have to be sold. It was only thereafter when the respondent did not come forward to clear the due amount that the petitioner sold the vehicle. Both the fora below have wrongly reached to the conclusion that the procedure was violated. This finding is against the record.
5. It was further stated by the learned counsel for the petitioner that the respondent/complainant is a businessman and has admitted that he is engaged in selling sand and the trailer was purchased for his business, therefore the respondent/complainant is not a consumer as the vehicle has been purchased for commercial purpose.
6. Learned counsel further stated that the respondent/complainant was irregular in payment of instalments and that is why the vehicle was repossessed, therefore, even if some deficiency is found against the petitioner, the respondent is not entitled to get back the amount of the instalments. Thus, the orders of the fora below in respect of quantum of compensation are not based on the correct appreciation of facts and law. The complainant did not make any objection or protest at the time of repossession and even when the vehicle was sold after notice to the complainant. Neither the complainant showed any willingness to pay the amount of loan or to file the representation before the opposite party or before any competent authority at that time. It is just before the expiry of two years period from the date of repossession that the complaint has been filed. It proves that the complainant was not really aggrieved by the repossession and the sale of the vehicle, but has filed the complaint to get unjustified enrichment.
7. The State Commission has also failed to consider that even after the sale of the vehicle, there was some amount due on the complainant and the complainant is liable to pay that amount to the petitioner. Both the fora below have ordered huge compensation to be paid by the petitioner to the complainant for which there is no justification.
8. On the other hand, learned counsel for the respondent/complainant stated that both the fora below have given concurrent finding of fact so far illegality committed by the opposite party in repossessing the vehicle is considered and even the sale of the vehicle is illegal. Against the concurrent finding of fact, this Commission cannot reassess the facts as the scope under the revision petition is quite limited.
9. The learned counsel for the respondent/complainant further stated that all these objections raised by the petitioner in the present revision petition have already been considered by the fora below and no substance has been found. The complainant is the purchaser of trailer for earning livelihood by means of self-employment as the complainant is engaged in selling sand etc. The opposite party has not filed any proof that the complainant was earning livelihood from any other source. Thus, the objection raised by the petitioner that the trailer was purchased for commercial use is not correct.
10. The complaint has been filed within a period of two years from the date of cause of action. Thus, no objection can be raised for maintainability or admissibility of the complaint. It is further stated by the learned counsel that the State Commission has already granted much relief to the petitioner in the appeal filed by the petitioner. No other concession is required to be given to the complainant.
11. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. Both the fora below have examined the question whether proper procedure has been followed by the petitioner in repossessing the vehicle and selling the same. Both the fora below have reached to the conclusion that the proper procedure as laid down by the Reserve Bank of India and the Hon’ble Supreme Court has not been followed. The facts cannot be reassessed at the level of this Commission as held by the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the Hon’ble Supreme Court has observed the following:
“23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
12. However, some legal issues have been raised in the present revision petition. The petitioner has claimed that the respondent/complainant is not consumer as he is engaged in the business of selling sand. The petitioner has not filed any evidence to prove that the respondent/complainant had any other source of income to sustain his livelihood. The complainant has not claimed in his complaint that he had purchased this trailer for any other specific purpose. The Hon’ble Supreme Court in Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has held the following:-
“13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a “commercial purpose” and not for “self-employment”, the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for “self-consumption” in economic activities in which they are engaged would be “consumers” as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than “self-employment”.
Therefore, the point to be considered is whether the appellants have purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”. There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of “consumer”. It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.”
13. On the basis of the above observation of the Hon’ble Supreme Court in Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. (supra), the contention of the petitioner that the machine has been purchased for commercial purpose cannot be accepted. Another issue has been raised by the learned counsel for the petitioner that the complaint has been filed at the fag end of two years from the date of cause of action when the vehicle was repossessed. Consumer Protection Act, 1986 provides that a consumer complaint can be filed within two years from the date of cause of action, therefore, if the complaint has been filed within two years, it cannot be seen as something against the complainant.
14. It may be true that there may be some amount due on the complainant as per the calculation of the petitioner/opposite party. However, the fact is that both the fora below have concluded that the petitioner was deficient in its services. For this deficiency of service, the complainant has been compensated by the State Commission. The opposite party/petitioner herein has also raised the question of quantum of refund and compensation that has been granted by the State Commission. The fact is that the District Forum awarded compensation of Rs.10,59,521/- which included refund of Rs.4,54,521/- as the amount paid as margin money and an amount of Rs.4,05,000/- as refund of instalments as well as Rs.1,00,000/- for loss of business and Rs.1,00,000/- for mental agony and harassment. The State Commission has only partly allowed the appeal and set aside the order of District Forum in respect of award of Rs.1,00,000/- as compensation for business loss and also reduced the compensation for mental agony to Rs.25,000/- from Rs.1,00,000/-.
15. The concept of hire purchase is that if the borrower pays all the instalments, then ownership stands transferred from the financier to the borrower. In the present case, the borrower was to refund loan amount along with interest in 48 instalments. It seems that the borrower had only paid 8 or 9 instalments at the time of repossession. Going by the law of proportionality, the borrower must have had his ownership
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share in the vehicle equal to 9/48. The vehicle has been sold for Rs.11,50,000/- and therefore, presumably the borrower was entitled to an amount of [11,50,000x9/48] which will come roughly to Rs.2,15,625/-. Thus, clearly the borrower is entitled to get the refund of his margin money and at least Rs.2,15,625/-. As this calculation is only approximate to find out the apportioned value of the sold vehicle, this can be made a basis for final decision. Consequently, I deem it appropriate to order refund of Rs.2,50,000/- out of the installments paid by the complainant which is to the tune of Rs.4,05,000/-. The remaining amount may be considered as the hire charges for the period for which the vehicle remained with the complainant. 16. Based on the above discussion, the revision petition No.1784 of 2016 is partly allowed and the petitioner is directed to refund an amount of Rs.7,04,521/- (Rs.4,54,521/- + Rs.2,50,000) alongwith 8% p.a. interest from the date of filing of the complaint i.e. from 25.02.2011 till actual payment. Petitioner shall also pay a compensation of Rs.25,000/- as ordered by the State Commission. The order of District Forum in respect of return of 4 cheques is also maintained. The orders of the fora below stand modified accordingly. This order be complied with by the petitioner within 45 days from the receipt of this order.