Order No. -29 Dt.-17/12/2015
Shri Asoke Kumar Das,President
F I N A L O R D E R
Case of the complaint in a nut sell is that he purchased one TATA INDIGO LX car from Bajla Motors Pvt. Ltd(OP1) taking finance from IndusInd Bank Ltd(OP2). It is alleged by the complainant that OP1 gave him assurance to provide registration of his said vehicle but that was not done by OP1. For that reason he could not ply his said vehicle and he was compelled to kept his vehicle in the garage. One day men and agents of OP1&2 came to his house and taken away his vehicle from the garage during his absence and that OP2 has been demanding outstanding amount and that OP1&2 have jointly harassed him under pre-motivated plan and as such both of them are liable for deficiency in service and/or unfair trade practice.
Hence, this case.
OPs no. 1to3 have registered this case by filing separate W/V wherein all of hem denied and disputed the claims and contention of the complaint with prayer for dismissal of the case with cost.
Specific stand of OP1 is that the case suffers from serious suppression of materiel fact.
The specific stand of OP2 is that the complainant had purchased the vehicle in question for commercial purpose, so he is not a consumer as per provision of C.P.Act 1986 and that this Forum has no jurisdiction to try this case as there is arbitration clause in the bilateral agreement signed in between the complainant and OP2.
POINTS FOR CONSIDERATION
- Is the case maintainable?
- Has this Forum jurisdiction to hear this case?
- Is the complainant a consumer?
- Are OPs 1&2 guilty for deficiency in service and/or unfair trade practice as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Seen and perused the petition of complaint, the W/V(supported both are by affidavits), documents filed by both the parties and the Written Arguments We have heard arguments of Ld. Lawyer of OPs. The Ld. Lawyer for the complainant didn’t argue the case although filed W/A.
After due consideration of aforesaid we find that the vehicle in question in the name of complainant Pinaki Adhikary was temporarily registered (WB74/TF-5636) on 28/12/’12 which was valid till 26/01/’13(Xerox copy of temporary certificate of Registration). But the complainant has suppressed this materials fact in his petition of complaint.
From the loan agreement dt.26/12/12 filed by OP2 we find that the complainant took loan/financial assistant from OP2 to purchase his vehicle in question for commercial purpose. There is no whisper in the petition of complaint that the complainant had purchased his vehicle in question exclusively for the purpose of his livelihood by means of self employment. Therefore we have no hesitation to hold that the complainant is not a consumer as per provision of C.P.Act 1986.
It is coming out from the said loan agreement dt.26/12/12 that this agreement was signed by the complainant, one Sourav Paul and IndusInd Bank Ltd.(OP1) and in this agreement we find arbitration clause in point no.23.0 to 23.4 and as per this arbitration clause, all disputes, differences and/or claim arising out of and touching upon this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provision of arbitration & conciliation act, 1996. We further find from the copy of order of the proceeding of arbitration claim petition no G.R.287 of 2014(M/s IndusInd Bank Ltd.-Claimant Pinaki Adhikary & Sourav Paul-Respondent borrour) filed by OP2, that said arbitration proceeding is still pending before the Ld arbitrator at Chennai and the respondents one of whom is the complaint of our present case, have not yet filed written statement in that arbitration proceeding.
In view of our discussion made here in before we find sufficient reason to hold that the complainant is not a consumer as per provision of C.P.Act.1986, and that this case suffers from serious suppration of materials facts and as such we find sufficient reasons to hold that this case is not maintainable and deserved dismissal and accordingly the complainant is not entitled to get any reliefs in this case.
All points are disposed off.
In the result the case fails.
Hence, it is
ORDERED
That the case/application stands dismissed on contest against OP 1,2&3 and ex-parte against OP4 without cost.
Let copy of this final order be supplied free of cost forthwith to the parties/ their Ld. Advocates/agents on record by hand under proper acknowledgement/sent by ordinary post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules 1987.
