JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

            This revision is directed against the order of the State Commission Himachal Pradesh dated 09.10.2009 whereby the State Commission upheld the order of the District Forum Kullu in Consumer Complaint No. 103/2007 and dismissed the appeal.

2.         Briefly stated, the facts relevant for the disposal of the revision petition are that respondent filed a consumer complaint alleging that he being an unemployed person, with a view to earn his livelihood, decided to purchase a Swaraj Mazda Truck.  The respondent for that purpose approached the opposite party for financial assistance.  The petitioner agreed to finance the truck to the extent of Rs.3,58,000/-.  The balance consideration amount was paid by the respondent complainant.  The loan amount as per the agreement was to be paid in 47 equated monthly instalment of Rs.11,340/- payable w.e.f. July 2002.  The respondent complainant regularly paid the instalments till July 2005. Due to some unavoidable reasons, the complainant could not pay the EMI due for period ending August 2005.  It is alleged that because of said default, the petitioner opposite party forcibly seized the vehicle.  The respondent, thereafter, offered to pay instalments for the August and September 2005 but the petitioner opposite party refused to accept the payment and failed to deliver back the possession.  Being aggrieved, the complainant instituted a civil suit in the Court of District Judge Kullu which was subsequently withdrawn.  Thereafter, respondent filed consumer complaint in the District Forum.

3.         The petitioner opposite party resisted the complaint.  It was pleaded that complaint is not maintainable on the ground of jurisdiction and also that complainant is not a consumer as he had availed service of the petitioner for commercial purpose.  It was also pleaded that complaint was not maintainable in view of arbitration clause in the loan agreement.

4.         On merits, it was pleaded by the opposite party that complainant had been irregular in the payment of instalments.  He was repeatedly asked to pay the instalments of loan and finance charge on due date but the complainant ignored the notices of the opposite party.  Therefore, the opposite party took possession of subject vehicle on 19.09.2005 in exercise of its rights as owner of the vehicle under Hire-Purchase Agreement.  It was pleaded that no force was exercised while taking over possession of the vehicle.  Even after taking possession of the vehicle, the complainant was called upon to pay the entire outstanding dues of the loan and finance charges but the complainant failed to pay the entire dues.  Therefore, the opposite party was compelled to sell the vehicle on 23.01.2006.  The vehicle was sold for Rs.1,60,000/- which  had been appropriated against the loan account of the complainant and sum of Rs.1,98,359/- is still due from the complainant.

5.         The District Forum on consideration of the pleadings of the parties and evidence allowed the complaint and ordered thus:

“The question arises of determination of the compensation payable to the complainant.  As noticed above, the complainant had paid Rs.5,53,000/- for the vehicle in question.  It is true that complainant had plied the vehicle for about 3.1/4 years.