SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of issuing illegal Notice for repossession of the vehicle and non-payment of insurance premium are the allegations arrayed against Ops.
2. Briefly narrating the complainant being an educated unemployed youth and for maintenance of his livelihood approached Op no.1 Bank and availed a loan to purchase an auto rickshaw by paying a margin money of Rs.20,599/-. The sanctioned amount of loan was for Rs.1,72,000/-(One Lakh Seventy two thousands only). After sanction of the loan the amounts in shape of cheque/ draft were disbursed to S.D.C.V. Auto Pvt. Ltd., Chandikhole(Op No.3) who delivered the auto rickshaw on 22/08/2014. It is stated that on the direction of Op no.1Bank Complainant deposited Rs. 6466/- for insurance charge of the vehicle and the vehicle was insured with Chola M.S. Insurance Company and also the vehicle was registered before O.M.V.D. Kendrapara bearing no.OD-29A-5372 and the insurance of the vehicle was covered from 22/8/2014 to 21/8/2015. It is also alleged that Op –Bank has accumulated Rs. 18,000/- as insurance premium charges for subsequent 3 years adding the same amount in the installments. But after completion of 1 year the Op No.1 has not renewed the insurance of the auto rickshaw for which the premiums has already been paid by the Complainant. As the auto rickshaw of the complainant was not insured, it was not possible to ply the vehicle in the road and the auto rickshaw remains idle, which put the complainant in to financial loss and mental agony. Being aggrieved complainant sent a legal Notice on 28/01/2016 to Op No. 1&2 requesting the Op-Bank to exempt the interest on loan amount as the vehicle was not insured and not roadworthy for plying. On 7/2/2016 the Ops sent a Notice to complainant illegally demanding to pay Rs.20,400/- within 7 days failing which action will be initiated against the complainant and will seize the vehicle of the complainant. The cause of action of the case arose on 16/02/16 when the complainant requested the Ops to insured the vehicle and the same was turned down by the Ops. Hence, the complaint before the Forum with prayer that a direction may be given to Ops not to seize the vehicle and to exempt the interest on loan amount from dt. 21/8/15 to till date along with Rs. 10,000/- for financial loss and mental agony.
3. Being noticed Op –Bank appeared through their Ld. Counsel and filed written statement challenging the maintainability of the Complaint mainly on the grounds of ‘territorial Jurisdiction ‘, ‘clause of arbitration’, ‘Accounts disputes’ and definition of consumer’ by citing different reported decisions. Op- Bank on their para-wise reply averred that Op-Bank has bifurcated the insurance premium through the EMI’s but not collected in full as stated by the complainant. It is further averred that the Insurance Certificated of the alleged vehicle is updated from 5th Dec-2015 to 4th Dec-2016 and the Op- Bank completely denies the receipt of Notice dtd. 28/1/16 also Op-Bank denies the receipt of any written request to insured the auto rickshaw on 16/2/2016 by the complainant. It is also averred that as the Op- Bank has not committed any deficiency in service, so no liability can be fixed in Op-Bank to pay for the financial loss and mental agony. Accordingly, the complainant is devoid of any merit and is liable to be dismissed.
Through Notice was served to Op No.3, Manager, APE Authorized centre, S.D.C.V Auto Pvt. Ltd., (Extension center), Law College Chhaka, Kendrapara by Regd. post but OP No.3 did not prefer to file any written statement, accordingly set ex-parte on 5/12/16 by this Forum.
4. Heard the arguments advanced by ld. Counsels for the parties. Complainant to substantiate his case filed attested photocopy of Notice dtd. 7/2/16 issued by Op- bank, attested photocopy of Advocate’s notice to Op- Bank dtd. 28th January-2016 along with copy of postal receipts, attested photocopy of R.C.Book, Fitness certificates, Insurance cover-note and repayment schedule (3 pages). On the other hand Op-Bank filed attested copy of the loan agreement as Annexure-A as per the written statement.
The admitted facts of the case are that complainant by availing a finance from Op-Bank purchased an auto rickshaw and it is also admitted that after completion of 1 year of insurance the vehicle the dues for future insurance premiums are included/accumulated and scheduled in the EMI’s of the complainant-borrower.
In the written statement Op-Bank challenging the maintainability of the complaint on grounds that present complaint can’t be treated as a ‘consumer’ as per sec-2(d) of C.P.Act. by citing the decision of Honbl’e Supreme Court in case of Laxmi Engineering works vrs PSC, Industrial Institute cited in 1995 AIR-SC-1428. But the Op-Bank does not filed a single scrap of paper to show that the complainant who availed the finance and purchased an auto rickshaw was not driven by the complainant for maintaining his livelihood and the said vehicle was driven by other person and used for any other purposes to earning a huge profit. Hence this averment and decision of the Honbl’e Apex Court is not applicable to the instant proceeding. The second point of maintainability as raised by Op- Bank that the allegations are relate to contractual obligation and issue of Notice for realization of loan amount do not fall within the ambit of ‘deficiency in service’. Further the complaint relates to ‘Accounts dispute’ and as per the decision of Honbl’e State C.D.R. Commission Odisha, in case of Bhabani Sankar Acharya vrs M/S Gold Mohur Foods and Ltd. reported in 2007 OLR (CSR) 38 and another case, where Hon’ble State Commission opined that consumer Forums lacks the Jurisdiction to decide the Account dispute. In this regard we, are of the opinion that the total facts of the case not relates to Account disputes only, in the complaint it is alleged that though Insurance premiums were paid to the Op-Bank for 3 years to obtain and continue the insurance policy of the vehicle as a result he could not ply the vehicle in the road. According to us these allegations are treated and will within the definition of ‘deficiency in service’ as defined in Sec2(g) of C.P.Act, 1986 and the complaint is maintainable before this Forum. The OP-Bank further challenges the maintainability of the complaint on grounds of ‘Arbitration’ clause as per the agreement and questions the territorial Jurisdiction of this Forum. The Op- bank on the written statement states that as per the agreement bearing No. 0CC02524G executed between Op bank and Complainant borrower to avail the finance and as per the ‘Arbitration’ clause of the agreement, if any disputes arises between the parties same is to be referred to a sole ‘Arbitrator’, the plea of Op- Bank is not sustainable in view of decision of Honbl’e Apex Court on analyzing sec-3 of C.P.Act 1986 in case of Fair Air Engineers Pvt. Ltd. vrs N.K. Modi(1996) 111CPJ1(SC). In the said decision Honbl’e Apex observed that the proceedings before the consumer Fora are legal proceedings having judicial authority, if any of the parties entered into the contract apply for a stay of proceeding before filing the written statement, then the Judicial authority may stay all the proceedings. In the instant case Ops have not filed any petition for stay prior to filing of written statement. Hence the complaint is maintainable. The Op- Bank in the written statement further raises that neither of the Ops are actually or voluntary resides or their branch situated within the local limits of the Forum nor any cause of action arose within the territory of this Forum. The complaint reveals that the Extension counter of the OP No.3 dealer is situated within the local limits of the Forum, equally during course of agreement Ld. Counsel for complainant argued that as per Sec II(2)(C ) of C.P.Act 1986 the cause of action, wholly or part, arises within the local limits and further submits that the complainant-borrower is residing and plying his financed vehicle within the local limits of the Forum. The Notices for repayment and the allegations of remaining idle of the vehicle for its non-Insurance all are cause of action, or a part there of which, arises within the territorial jurisdiction of the Forum. On considering the arguments and on examination of documents like the Registration Certificate of the vehicle, the Notice dtd. 7/2/16 issued to Complainant-borrower by the Op-Bank are a part of the cause of action, and the grounds taken by Op-Bank on non-maintainability of the complaint is not accepted by this Forum and we safely arrive into a conclusion that as per the position of law involved in the dispute the complaint is maintainable before this Forum.
On allegations of deficiency in service complainant alleges that after purchase of the subject vehicle the premium amount of Rs. 6466/- paid and insurance was valid from Dtd.22/08/2014 to Dt.21/08/2015 and for next 3 years premiums amounting of Rs.18,000/- were paid to the OP- Bank which were accumulate in the monthly EMI’s. The allegation of the complainant is partially supported by written statement of the Op-Bank which discloses that “ xxxxx bifurcating the insurance premium through the Future EMI’s but not collected in full as stated by the complainant. Secondly the Insurance certificated of the alleged vehicle is updated from 5th December2015 to 4th December,2016 xxxxxxxxx”. The statements of the parties is supported by repayment schedule dt.3/9/2014 of OP-Bank. The attested photocopy of the repayment schedule is produced by the complainant. Further the attested photocopy of insurance cover note reflects that the insurance of the subject vehicle was valid from 22/08/2014 to 21/08/2015. Complainant also alleges that after completion of 1 year of insurance i.e. 21/8/2015 though Op-Bank received the insurance premium/EMI’s regularly but the insurance of the vehicle was not renewed for which complainant could not ply the vehicle and the vehicle remains idle. Complainant being aggrieved on non-insurance of the vehicle issued a legal Notice on 28/01/2016 to Op- Bank to insured the vehicle. The non-renewal of insurance of complaint’s vehicle are supported by the written statement of Op-Bank. The Op-Bank in their own admission states that the insurance of the vehicle was updated from 5th Dec-2015 to 4th Dec-2016. Now it is clear before us that the 1st year insurance of the vehicle is expired/complete on 21/8/2015 and the next insurance of the vehicle was updated from 5/12/2015 to 4/12/2016. Now it is crystal clear that the subject vehicle was not insured for the period 21/8/2015 to 4/12/2015 and Op-Bank is completely responsible and accountable for the non-insurance of the vehicle as the Op-Bank as per the terms and conditions of the repayment schedule accepted Rs. 18,000/- from the complainant for charges of insurance premium for more than 1 year. In the circumstances the OP-Bank is negligent and deficient in service by not obtaining the continuance of the insurance of the vehicle of the complainant-borrower and let the future of the vehicle into a great risk during the gap period i.e. from 21/8/2015 to 4/12/2015.OP-Bank in their written statement questions the knowledge of complainant-borrower regarding non-insurance of the vehicle further denies the receipt any legal notice of complainant dtd. 28.01.2016. Complainant to substantiate his case files attested photo copy of Advocate’s Notice and postal receipt which can not be disbelieved in absence of cogent reasons. The question of knowledge of non-insurance of vehicle by the complainant is nothing but a vague allegation to shift the onus on the other side.
In the present I.A. case which arises out of this original C.C.Case where this Forum considering the interim petition passed an order on dt. 24/2/2016 directed the Ops not to take any corecive action against the complainant. Op –Bank filed objection and a petition seeking modification the order dt. 24/2/2016. Prior to filing of objection by Op-Bank, complainant-petitioner filed a petition on 31/5/2016 accordingly Op-Bank filed the objection on 22/6/2016. Considering the petitions and objections as a whole this Forum bearing order No. 14 dtd. 5/12/2016 passed an order to take up the matter for hearing in original C.C. case. The petition and objection of Op-Bank reveals that an amount of RS. 39485/- is pending on the petitioner-borrower up to May-2016 as an outstanding dues and as per the agreement the matter has been referred to the Sole-Arbitrator. The petition of the complainant/petitioner reveals that during pending of the proceeding and on receipt of the interim direction and to non-complying the order, the Op- Bank without waiting for the order of the Forum has referred to the matter to the Arbitrator S.Rajani Ram Das for realization of the loan amount. In the context we refer to our earlier order No.14 Dtd.05.12.2016 in addition to the same it is our observation that the complaint is filed on dtd.19.02.2016,OP-Bank appeared into the present dispute on dtd.29.03.2016 and filed written statement on dtd.31.05.2016 where not a single sentence has been disclosed regarding realization of loan amount and the dispute has been referred to the Sole Arbitrator. However, on dtd.04.01.2017 OP-Bank files written notes on argument and discloses that for realization of the loan amount of complainant the matter has been referred to sole arbitrator M/S.S.Rajani Ram Das at Chennai bearing proceeding No.SRR/ACP No.508/2016. The written notes on argument is annexed by a copy of the claim statement as Annexure-B. In this context we are of the unanimous view that new pleas can not be taken by mentioning in the notes on argument, where there is no scope available to the other side to plead. Further, we are surprised that when the matter has been referred to sole Arbitrator on dtd.30.03.2016, what prevented the OP-Bank not to disclose the matter in the written statement which is filed in a later date i.e. on dtd.31.05.2016, or prior to filing of the written statement which is not only a disgusting affair but also an ill intention of the OP-Bank to create a clash between the two statutory authorities. Hence, the filing of arbitration proceeding and suppression of facts before the Forum can not take away the legal entitlements of the complainant, which is filed under C.P.Act,1986.Accordingly, we disposed of the petition.
Complainant is his complaint petition prays this Forum for direction to Op-Bank to exempt the interest 21/8/2015 to till date. We, observe that there is a considerable force in the prayer of the complainant, as due to latches of Op-Bank for not obtaining the Insurance of the subject vehicle in time, certainly the complainant has sustained financial loss and mental agony. In our view exemption of interest as prayed for by the complainant will substitute the financial loss and mental agony of the complainant. Accordingly, we allowed the prayer in part by directing the OP-Bank not to collect any interest or over due from 21/8/2015 to till completion of the EMI’s as per the agreement/schedule of repayment, if any amount is paid or collected same to be adjusted in the loan account of the complainant-borrower. The further prayer of the complainant for not to seize the vehicle has already been passed in the I.A. case no.11/16 as interim measure which is hereby vacated, subject to compliance of this order, the prayer for compensation of Rs. 10,000/- for mental agony and irreparable loss has earlier dealt in our observation. We do not see any deficiency in service by Op No.3 Manager, APE Authorized Service Centre S.D.C.V, Auto Pvt. Ltd. and is freed from the allegation of deficiency in service.
Having observations reflected above, it is directed that OP-Bank will recast the repayment schedule by exempting the interest and over dues, if any of the loan account of the complainant from dtd.21.08.2015 to till the completion of the EMI’s and the revised repayment schedule will be communicated to the complainant within one month of receipt of this order, till then the OP-Bank is hereby restrained not to take any corecive action against the complainant, Rs.50/- will be charged per day for delay and non-compliance of the order.
Accordingly, the complaint is allowed in part without cost.
Pronounced in the open Court, this the 28th Day of January,2017.
