Decided on April 09,2004



- (1.) THIS appeal has been preferred by the O. P. against the order dated 29.7.2003 passed by District Forum, Bhojpur in Complaint Case No.39/2003 whereby and whereunder the District Forum has directed the appellant to pay alleged excess money realized amount to Rs.58,649/ - to the complainant -respondent and also awarded a sum of Rs.5,000/ - by way of compensation and litigation cost.
(2.) THE brief fact of the case is that complainant alleged that he had purchased chassis of mini bus on hire purchase basis from the O. P. -appellant and paid certain initial amount as per agreement. He was to pay Rs.11,800/ - in 36 months as hire purchase charge ending on 14.3.2003. The mini bus was purchased for self -employment as the complainant is an educated unemployed. The bus was plying in between Karnampur to Ara. It is further case that due to transport strike between July and September, 2002 he defaulted in payment of the monthly instalment and the vehicle was repossessed by the financier -appellant on 20.11.2002 and released on 21.12.2002 on the assurance that complainant agreed to pay and liquidate the entire amount along with interest. The appellant realised Rs.58,643/ - in excess which the complainant had paid because the amount was calculated on monthly basis to be paid in 36 months ending on 14.3.2003 but the entire amount including the above amount which includes interest till 14.3.2003 was realized by the appellant on 21.12.2002. It is also the case of the complainant that appellant -company has realized the insurance money to the tune of Rs.24,800/ - but paid to the Insurance Company only Rs.17,100/ - and thus saved Rs.6,900/ - on that score but neither it was refunded back to the complainant nor adjusted towards the loan amount. On these grounds the complainant alleged deficiency in service against the appellant and prayed for payment of Rs.58,649/ - excess realized by the appellant besides compensation for deficiency in service fore not issuing sale letters to the complainant and prayed for litigation cost as well.
(3.) THE O. P. -Finance Company appeared and filed written statement and contested the claim made by the complainant. Its main contention was that case was not maintainable before the District Forum. There was arbitration clause in the agreement between the parties according to which all disputes have to be settled by arbitration at Mumbai. It was also agreed between the parties that all disputes shall be settled at Mumbai alone. There was hire purchase agreement in -between the parties and as such the complainant is not a consumer. The vehicle was used for commercial purpose, hence complaint is not maintainable on these grounds. The O. P. also disputed the accounts as mentioned by the complainant. Its contention was that agreement value was Rs.4,14,851/ - payable in 35 instalments and the rate of interest was 11.50% and not 13%. The balance amount of the insurance paid by the complainant was adjusted in the dues payable by the complainant to the O. P. The vehicle was repossessed by the O. P. on 2.11.2002. The O. P. admitted that complainant has paid all the amount due to the O. P. under hire purchase agreement but denied that any excess amount was realized from the complainant. The O. P. still ready to issue the sale letter but complainant has never approached for the same. After hearing the parties and considering these facts on record in its detailed order the District Forum negatived the contention of the O. P. that complaint was not maintainable before the District Forum on the grounds: (i) there was arbitration clause in the agreement in -between the parties; (ii) all dispute is to be settled at Mumbai; (iii) the vehicle was used for commercial purpose; (iv) the complainant was not consumer as the purchase of the vehicle was on hire purchase agreement. On the admitted fact the District Forum held that complainant was required to clear the loan by 14.3.2003 under the hire purchase agreement but by the seizure of the bus by the O. P. the complainant was forced to make the entire payment by 20.12.2002 about three months before the agreed date. This fact is not in dispute. The District Forum held that the instalment was fixed after adding interest on the entire amount till the date 14.3.2003 but the complainant has paid the entire amount three months earlier. Therefore, the O. P. has realized excess amount towards interest on the entire amount and accordingly directed to pay Rs.58,649/ - which includes Rs.6,900/ - excess amount realized towards insurance of the vehicle by the O. P.;

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