IMPORTANT POINT
Bank has not committed any deficiency in re-possessing vehicle on account of default on part of complainant in making payment of installments.

K.S. Chaudhari, Presiding Member—These revision petitions arise out of single order of State Commission, hence decided by common order.

Revision Petition No.804 of 2010 has been filed by opposite party and Revision Petition No.839 of 2010 has been filed by the complainant against order dated 24-11-2009 passed by State Commission in Appeal No.267 of 2009 – Arvind Kumar Gupta Vs. ICICI Bank Ltd. by which while allowing appeal partly order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant is retired Military Officer and for earning livelihood after retirement he purchased one Ashoka Leyland Truck bearing N. C.G. 07 C-4744 after obtaining finance of Rs.10,64,000/- from the OP Bank. Total cost of the vehicle on road after registration and construction of body came to Rs.13,19,024/-. Financed amount was to be repaid in 45 monthly installments of Rs.28,610/- to be paid by 22nd of each month. Till 28.12.2007 the complainant had paid by installments a sum of Rs.4,17,668/- and a sum of Rs.1,54,532/- was overdue till the aforesaid date. Earlier the complainant used to pay regular installments but in the month of April, 2007 complainant’s truck loaded with sponge iron was stolen from Raipur and was subsequently released on supurdnama in the meanwhile complainant’s father who was suffering from Cancer also expired. Due to aforesaid reasons the truck could not be properly plied during the month of April and May resulting in disturbance of financial cycle. From June to September the truck received no booking. Consequently, some installments could not be timely paid. On 28.12.2007, without giving any intimation to the complainant and in absence of the driver and conductor, agents of the OP seized the truck. As soon as the complainant came to know of such seizure he approached the OPs with Rs.1,00,000/- and requested them to release the truck but they refused to do so and demanded entire amount. Thereafter, the complainant got two notices served on the OPs but both of them went unheeded and were not even replied hence complaint was filed before District Forum.

3. Opposite party resisted complaint and submitted that the truck was purchased for commercial purpose hence the complainant is not ‘consumer’ under the Consumer Protection Act. It was further averred that actual price of the vehicle was only Rs.9,98,580/- and the OPs provided finance of Rs.10,64,000/- and the complainant did not have to spend any money from his pocket. The complainant had entered into Hypothecation Agreement with the Bank and had agreed that the due installment will be paid by 22nd of every month. It was denied that the vehicle was repossessed in absence of driver and conductor without knowledge of the complainant. It was also averred in the written version that the OPs were authorized to repossess the vehicle in case of default in payment of installments and they have exercised their aforesaid right. The OPs have denied that the complainant had ever approached for payment of Rs.1,00,000/-. It was alleged that he served notice after 3 months of repossession. In response to the notice the bank gave an opportunity to the complainant to settle the account but nothing was done. In the notice also the complainant did not propose to make any payment. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint holding that complainant is not ‘consumer’. Appeal filed by the complainant was partly allowed by learned State Commission vide impugned order and opposite party was directed to pay Rs.5 lakhs to complainant against which both these revision petitions have been filed.

4. Heard learned Counsel for the parties and perused record.

5. Learned counsel for opposite party submitted that inspite of admitted default on the part of complainant in paying installments and inspite of taking possession of vehicle after due notice and on surrenderi