D.O.F. 14.11.2001
D.O.O. 31.08.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P. Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 31st day of August, 2011.
C.C.No.388/2001
P. Moideen Haji,
S/o. Mammad Haji,
T.P. Beevi House, : Complainant
Mill Road, Valapattanam,
Kannur.
(Rep. by Adv. M.K. Anilkumar)
1. The Branch Manager,
Tata Finance Ltd.,
Opp. Ramanada Oil Mill,
South Bazar, Kannur-2.
2. M/s. Tata Finance Ltd., : Opposite Parties
3rd Floor, Kasi Arcade,
116, Thyagaraja Road,
T. Nagar, Chennai – 600 017,
Represented by its Manager
(Both 1&2 rep. by Adv. M. Preman)
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay ` 3,65,000 the entire sum paid to the opposite parties, ` 20,000 as the cost of car stereo along with ` 25,000 as compensation and cost.
The complainant’s case in brief is as follows. He purchased a Tata Indica Diesel car by availing ` 2,00,000 as loan and as per the payment schedule complainant has to pay ` 2,41,801 by 23 instalments starting from 05.03.1999. In order to assure repayment the opposite parties have obtained various documents with a condition for seizure of the vehicle in case of default of payment. But due to same financial stringency, the complainant failed to pay instalment of December, 2000. The opposite parties had forcibly taken away the vehicle on 12.01.01 without informing the complainant. On 13.01.01 the complainant have received a telegram stating that complainant has to pay the balance money and have seized the vehicle. On 15.01.01 the complainant approached the opposite party and offered balance amount, but they refused to accept the same. Again the complainant approached the opposite party and paid the balance amount together with one Rupee being the option money and terminated the Hires-Owner relationship. So on 16.01.01 onwards the complainant is the owner of the vehicle. After seizing the vehicle opposite parties used the vehicle for pleasure trip and met with a major accident and received an amount of ` 74,000 from Oriental Insurance Company. At the time of seizing the vehicle, the reading in the meter was 19,200 and at the time of accident it was 19,900. So the complainant had instituted a suit as O.S.124/01 before Sub Court, Thalassery for mandatory injunction and the suit was referred to the Arbitrator as per the request of opposite parties. Since the opposite parties shown deficiency in service as a service provider the complainant preferred complaint before the Forum. At the time of seizing the vehicle there was a car stereo worth ` 25,000 fixed in the car. The complainant
purchased the car to carry the children since the schools in which they are studying are far away from the residence. So after seizure the complainant had paid ` 850 per day for hiring the taxi. The opposite party agreed to return the vehicle after payment of ` 26,307 before the Civil Court. Since there was no amount due and car was totally damaged due to major accident, the complainant does not require the car. The complainant had altogether paid ` 3,68,801. So the opposite parties has to pay the value of the car ` 3,65,000 and ` 20,000 for the mental agony suffered by the complainant due to illegal seizure and ` 25,000, being the value of stereo. So the complainant is entitled to receive the above said amount with 12% interest from the date of complaint. Since the opposite parties shows deficiency in service. Hence the complaint.
In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version contending that the complaint is not maintainable before the Forum because as per the agreement dated 05.03.1999, only the courts at Mumbai will have jurisdiction. Moreover as per clause 25 of H.P. agreement, the complainant has agreed to refer all disputes to an arbitrator and hence the complaint is not maintainable before the Forum. The opposite party admits that the complainant had availed ` 2,00,000 as vehicle loan by entering into an H.P. agreement. As per the agreement the complainant is only a bailee and he cannot claim any ownership for the vehicle till the obligation including the repayment of all the amounts under the H.P. agreement is complied. The opposite parties were constrained to invoke the right of repossession due to chronic default and breach of terms of H.P. agreement. On 15.12.1999 and 10.01.2000, issued notice demanding payment and hence the allegation that no notice was issued till 12.11.1999 is not correct. As per the agreement the complainant is liable to pay a fixed sum as rent per month and is not paid on due dates and hence it bears 30% overdue charges and the defaulted period is calculated on the basis of day by day from the date of default till the payment is made for the particular month. The complainant never paid monthly rent on its due dates. The complainant was liable to pay overdue charges as a hirer. The complainant remitted only the instalments amounts due and refused to pay the overdue charges which is in accordance with the law. The contention that the relationship of hirer and owner is terminated is baseless and without any justification. Evenafter crediting the amounts paid by the complainant as on date a sum of ` 34,968 is due from the complainant. Since the complainant refused to pay the amount, the opposite party cannot cancel the H.P. endorsement made in the Registration Certificate. Due to defaults committed by the complainant the opposite party had retaken possession of the asset. As a real owner of the vehicle the opposite party had to garaged the vehicle for safe custody. While so driving the vehicle for safe custody, the vehicle met with an accident and the allegation that the vehicle used for other purpose is not correct. The opposite party is the real owner and they let the vehicle to the complainant on hire. The complainant can not claim any right of ownership without fulfilling all the terms and conditions including the repayment of dues as per the agreement. Since the vehicle is met with accident, the opposite party had garaged the vehicle to carryout the repair for the vehicle and for that the consent of the complainant is not necessary. As per Insurance Policy, the claim would be settled only to the real owner. The opposite party had also spent ` 6,970 apart from the insurance claim towards repair. The opposite parties are also incurring ` 40 per day towards parking charge. The complainant has to remit ` 26,307 as overdue charges. All the payments made by the complainant were credited to his account. Without repaying all the amounts due under the H.P. agreement, the complainant cannot exercise his option in writing to purchase the vehicle. The allegation that the claim of the opposite party is only to protract the delivery of the vehicle is absolutely baseless.
The complainant had filed a suit having No.O.S.124/01 before the Sub Court, Thalassery and the same was referred to an arbitrator by name Ashwin Ankade with a direction to file the award on or before 31.01.2002. while the matter is pending before the Arbitrator, the complainant has not approached before the Arbitrator and the complainant has sent a telegram to the arbitrator stating that he has filed a revision petition before the Hon’ble High Court of Kerala against the order passed in I.A.2041/01. It is settled law that once a civil suit is pending which is earlier in time to that of this proceedings before Consumer Dispute Redressal Forum, the later proceeding is not maintainable. The opposite parties are not liable to compensate the complainant. If the complainant is not interested in setting the amount, as a prudent owner, the opposite parties will dispose the vehicle for the best available price and shall appropriate the sale consideration towards the amount due from the complainant. As per the clause 3 of H.P. agreement, the complainant pay to the owner’s monthly sums by way of rent amounting (together with the sum of ` 1,06,398), so paid to the execution of the agreement as to the sum of ` 3,49,199 and shall also pay all other sums which may become payable, the hiring shall come to an end on payment of Rupee one by the Hirer to the owners of the vehicle shall at the option of the hirer to be executed by him in writing, then become his property, but until such payment, the vehicle together with any accessories, improvements and addition made there to by the hirer shall remain absolute property of the owners. So the complainant is not entitled to any relief and hence the complaint is liable to be dismissed.
The complaint was once dismissed by the Forum and is remanded back for fresh disposal on merits by the Honorable State Commission.
Upon the above contentions the following issues have been raised for consideration.
1. Whether the complainant is a consumer and whether the complaint is maintainable?
2. Whether there is any deficiency of service on the part of opposite parties?
3. Whether the complainant is entitled to any relief?
4. Relief and cost?
The evidence in the above case consists of the oral testimony of PW1, DW1 and Exts.A1 to A11 and B1 to B6.
Issue No.1
The opposite parties challenged the jurisdiction of the Forum mainly on three grounds. Firstly, there exists clause in H.P. agreement that in respect of any dispute only the court in Mumbai will have jurisdiction and all other courts have been specifically excluded. Secondly, as per clause 25 of H.P. agreement, complainant agreed to refer the disputes to an arbitrator, thirdly the complainant has already instituted a civil suit and hence it is the dispute in Sub-Justice in Civil Court, and hence it is a bar to the enforcement of rights under the Consumer Protection Act.
Firstly, secion 11 (2) of the Act deals with the Territorial Jurisdiction of the Forum. As per Section 11(2), “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction.
(a) the opposite party or each of the opposite parties, where there are more than one at the time of institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain or
(b) any of the opposite parties where there are more than one at the time of Institution of the complaint actually and voluntarily resides or carries on business or has a branch office, or personally works for gain or
(c) the cause of action wholly or in part arises
In the present case in hand, the opposite party has a branch office in Kannur at the time of Institution of the complaint. Moreover the cause of action also arise at Kannur which is within the jurisdiction of the Forum and hence the Forum has ample jurisdiction to try the case.
Secondly the contention of the opposite party that the existence of Arbitration Clause oust the jurisdiction of the Consumer Fora. But in Udaipur Cement Works Vs Punjab Water Supply Sewage Board, the Hon’ble Natural Commission held that mere existence of an arbitration. Clause should not come in the way of aggrieved party for seeking legitimate relief under the Consumer Protection Act which was reported in 1999(1) CPJ 67 (NCJ). Moreover in Sky Park Couriers Ltd. Vs Tata Chemicals the Hon’ble Supreme Court held that even if there exists an arbitration clause in an agreement and a complaint is made by consumer, in relation to deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the redressal agency, constituted under the Act, since the remedy provides under the Act is in addition to the provisions of any other law for the time being in force which was reported in AIR 2000 SC 2008. Thus it is clear that mere existence of an arbitration clause does not oust the jurisdiction of the Consumer Fora.
Thirdly the opposite party contended that the matter will came under Sub-Judice under Civil Court, since the complainant has already instituted a civil suit and hence it is a bar to the enforcement of right under the Consumer Protection Act. Admittedly the complainant had filed a suit having No. O.S.124/01 for mandatory injunction against opposite party. As per Ext.B1 the suit bearing No.124/01 had been filed to recover the sum of ` 1,63,050 with 18% interest from the date of suit until realization and directing the defendants No.1 to 3 to hand over the car NO. KL 12 E 3768, the documents and cheques referred and also for directing the plaintiff for recovery of 850 per day to the plaintiff as expense of hiring taxi. The complaint in hand is filed for an order directing the opposite parties to pay the entire sum i.e. ` 3,65,000 paid to the opposite parties with ` 20,000 as cost of car stereo and for compensation of ` 25,000 for deficiency in service. So it is seen that prayer is more or less different. The opposite party in their version admits that the case was referred to an arbitrator and an arbitrator was appointed and the complainant has not agitated before the Arbitrator and issued a telegram to the Arbitrator that the complainant has filed a revision petition before the Hon’ble High Court of Kerala against the order passed by the Sub-Judge in I.A. 2041/01. But the Ext.B4 which is the order in I.A. in O.S. 124/01 produced by the opposite party shows that the Hon’ble High Court dismissed the CRP holding that there is Arbitration clause. The I.A.2158/06 was filed for the restoration of I.A. which was filed for restoration of the suit O.S.124/01 dismissed for default. The Ext.B4 speaks that since the matter had been already referred to the Arbitrator and hence no purpose will be served by setting aside the dismissal order and hence the I.A. dismissed. So from the above discussion it is clear that the above suit having No.124/01 was disposed off not on merit, but it was dismissed since the matter has been referred to Arbitrator. It is also evident that the Arbitrator also has not decided the case on merit. It is also crystal clear that the above civil case is not pending before any judicial authority. But the opposite party’s counsel vehemently contented that since the subject matter of this complaint is substantially same as in the suit earlier pending adjudication before Civil Court between the parties, the complaint is liable to be dismissed as held by the Hon’ble National Commission in M/s. N.J. Industry Vs. S.B.I. and others. But in that case the Hon’ble National Commission held so, because it was observed that the suit for recovery filed by the bank is still pending disposal before the Senior, Civil Judge, Surat. The opposite party’s counsel has produced another decision of our own Hon’ble State Commission to the effect that where the dispute is subjudice in Civil Court, it is a bar to the enforcement of rights under the Consumer Protection Act. This case was decided on 05.10.1991 in Jacob K. George Vs. M.D. Popular vehicle and Services Ltd and another. But after this the National Commission decided the above cited case N.J. Industry Vs. S.B.I. and others CPR, 1993 (2) 402(NC). Regarding Sub Judice Section 10 of Civil Procedure Code, 1908 states that “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating, under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the supreme court. So as per Section 10 a suit must be stayed, if the matter directly and substantially in issue in a previous suit that is pending and the object of this principle is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. It is to obviate conflict of decisions of two contradictory orders being passed in respect of the same subject matter between the same parties. So from the above discussion it is found that the suit is not pending before any civil court and hence the bar under Section 10 of CPC ie subjudice is not applicatble in this case and hence it is found that the complaint is maintainable before the Forum and issue No.1 is found in favour of the complainant.
The next question to be decided is about deficiency. In order to prove the case the complainant was examined as PW1 and marked documents such as agreement dated 05.03.1999, Counter statement filed by the opposite parties in I.A. 1526/01 in O.S.124/01 before Sub-Judge, Thalassery, Telegram dated 13.01.01, copy of lawyer notice, receipts issued by opposite party, 9 in numbers, receipt issued to oriental insurance company, letter issued by opposite party, postal acknowledgment card, postal receipts, postal cover and certified copy of the R.C. etc. To disprove the case opposite party also produced documents such as certified copy of the plaint in O.S.124/01, judgement in O.S.124/01, certified copy of the restoration petition ie IA 2158/06, the order in IA 2158/06 in O.S.124/01, certified copy of the petitions ie IA 3098/01 and account statement. The complainant contended that he has paid the entire dues on 16.01.01 and also paid Rs.1 as the option money to opposite party, and his option was exercised by giving the amount to 2nd opposite party. The clause III (B) of the H.P. agreement states that : “Pay to the owners all other sum of money which may become payable to them by the Hirer under the agreement, the hiring shall come to an end and on payment of Rupee one by the Hirer to the owners of the vehicle shall at the option of the Hirer to be exercised by him in writing, then becomes his property and the owners will assign and make over all their right, title and interest in the same to the hirer. But as per Ext.B6 it is seen that the complainant had already paid the dues with Rs.1 more. As per the H.P. agreement the complainant is liable to pay ` 2,42,800 through E.M.I. and also an option money of Rs.1. So as per the B6 the complainant has paid the entire amount with 1 as option money. So as per the H.P. agreement the opposite party is liable to release the property to the complainant upon receiving the option money. It is evident from the agreement that the complainant had paid initial payment as more than one lakh. The DW1 who is the Branch Manager of 1st opposite party deposed before the Forum that “lc-Pn-¡m-c³ 242801 cq]-bm-bn-cp¶p Xncn-¨-S-t¡-n-bn-cp-¶-Xv. ]en-i-bmbn 120000 cq]-b-S¡w 362801 cq] sam¯w ]cmXn¡mc³ FXr-I£n Øm]-\-¯n AS-¨n-«pv.” This deposition of DW1 is against the case of opposite party that the complainant is liable to pay O.D. charge. Moreover nothing is stated in the H.P. agreement about the O.D. charges. Above all if the complainant is liable to pay any amount to them they should not receive the option money. So in such a circumstances the opposite parties are liable to terminate the agreement. But they are not ready to handed over the possession of the vehicle to the complainant evenafter they had received the option money. So it is seen that there is deficiency of service on the part of opposite parties. Moreover it is an admitted fact that the vehicle was met with an accident and sustained severe damages to the vehicle, while the vehicle is with the opposite party. So it is seen that there is grave deficiency on the part of opposite parties. It is true that the opposite party admits that the complainant had paid altogether ` 3,62,801 before the opposite party, but, as per the H.P. agreement the price of the chasis of the vehicle is shown as ` 3,06,398. The vehicle was purchased during 1999 and it was seized by opposite party in 2001. So it is seen that the complainant has used the care for more than 11/2 years. So the value of the vehicle at the time of seizure can be considered as ` 2,50,000. So the opposite party is liable to refund this amount to the complainant as the value of the vehicle at the time of seizure. The complainant contended that there is a car stereo worth ` 25,000 with the car at the time of seizure. But no evidence is produced before the Forum to prove this. From the facts and circumstances of the case it is evident that the complainant had suffered so much of mental, physical and financial hardship due to the deficient service of the opposite party for which they are liable to compensate the complainant and we assess ` 15,000 as compensation and ` 2,000 as cost of the proceedings. Both the opposite parties are jointly and severally liable to give the above said amount to the complainant and order passed accordingly.
In the result complaint is allowed directing the opposite parties to refund ` 2,50,000 (Rupees Two lakh fifty thousand only) as value of the seized vehicle with 8% interest from the date of order with ` 15,000 (Rupees Fifteen Thousand only) as compensation and ` 2,000 (Rupees Two Thousand only) as cost of the proceedings within one month from the date of order, failing which the complainant can execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Agreement copy.
A2. Counter statement of O.S.124/01.
A3. Telegram copy.
A4. Lawyer notice dated 31.01.01.
A5. Acknowledgement cards (5 in numbers)
A6. Voucher with letter sent by Oriental Insurance Company – Ext.A6(a)
and (b).
A7. Repayment schedule dated 15.07.1999.
A8. Postal acknowledgment.
A9. Postal receipts – Ext.A9(a) and (b).
A10.Postal cover dated 29.05.2001.
A11.Certified copy of Registration Certificate.
Exhibits for the opposite party
B1. Certified copy of plaint in O.S.124/01.
B2. Judgment copy of O.S.124/01.
B3. Certified copy of I.A.2158/06.
B4. Copy of order of I.A.2158/06
B5. Certified copy of I.A.3098/06
B6. Certified copy of details of contract.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. V.S. Jaison
/forwarded by order/
SENIOR SUPERINTENDENT
