Orissa

Cuttak

CC/254/2012

Uma Sankar Panda - Complainant(s)

Versus

Branch Manager,M/s Tata Motors & Finance Ltd - Opp.Party(s)

B M Mohapatra

10 Feb 2020

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.254/2012

 

Uma Sankar Panda,

S/O:Sitanath Panda,

At:Sarapada,PO:Bodhanga,

P.S:Salipur,Dist:Cuttack.                                                            … Complainant.

 

                Vrs.

                                                

1.        Branch Manager

M/s. TATA Motors & Finance Ltd.,

Keshari Complex,Kharavela Nagar,

                        Bhubaneswar,Dist Khurda

2.        Ample Solutions through Proprietor,

AT:Shelter Chhak,PO:Tulasipur,

Cuttack

 

3.         R.T.O,Cuttack,

At:Kacheri Road,Dist:Cuttack.… Opp. Parties.

                

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    12.11.2012

Date of Order:  10.02.2020

 

For the complainant.  :    Sri B.M.Mohapatra,Adv. & Associates.

For the O.P.No.1          :    Sri R.K.Pattnaik,Adv. & Associates.

For the O.Ps 2 & 3        :           None.

 

Sri Dhruba Charan Barik,President.

The complainant having attributed deficiency in service and unfair trade practice to the O.Ps, has filed this complaint seeking appropriate relief against them in terms of his prayer in the consumer complaint.

1. The f acts of the consumer complaint stated in brief are that the complainant had purchased a truck bearing Regd. No.OR-04-H-7599 for a consideration of Rs.15,71,748/-.  It was financed by O.P No.1 and the complainant had made down payment of Rs.16,09,423.09p.  The period of recovery of the total loan amount as per agreement was 46 months commencing from 2.1.2008 to 2.10.2011.  It is stated that after payment of full E.M.is on 26.8.2011 the agreement period came to an end but the O.P No.1 did not issue NOC to the complainant.  For that reason the complainant issued a letter on 78.8.11 to the O.P.1 to this effect.  Instead of issuing NOC, the O.P.No.1 again demanded outstanding loan amount from the complainant and the latter paid Rs.44,000/- + Rs.20,000/- in total Rs.64,000/- to O.P No.1.  Strangely enough O.P.1 did not issue the NOC on the ground that balance amount was still unpaid.  It is pertinent to mention here that photo copy of statement of account issued by O.P.1 has been filed in this case and marked as Annexure-1 series.  But the accurate statement has not been given in Annexure-1.  Annexure-2 is the R.C.book of the above truck filed in this case and it shows that the vehicle is still under hypothecation.  The case of the complainant further reveals that receipt of Rs.64,000/- from the complainant is over and above the genuine demand and as such, such payment was illegal and unjust.  Added to it the complainant has further stated that despite taking the extra mount of Rs.64,000/-, failure of O.P.1 to issue NOC in this case has caused serious mental agony and harassment to him and this by itself is tantamount to deficiency in service and unfair trade practice.

The complainant has therefore prayed that the O.P. may be directed to pay Rs.40,000/- towards compensation for deficiency in service, Rs.25,000/- for unfair trade practice, Rs.10,000/- for non-supply of NOC and Rs.25,000/- towards cost of litigation to him.Besides, it is also prayed that the O.P. may be directed to refund excess amount of Rs.64,000/- together with interest to him which would approximately come to Rs.1,00,000/-.Prayer is therefore made to direct the O.P to make payment of Rs.2,00,000/- in total to him in the interest of justice.Further prayer is made that this Forum may be pleased to declare that the contract between the parties has already ceased with effect from 12.10.2011 and that the truck bearing No OR-04-H-7599 of the complainant was freed from hypothecation with a direction to O.P.1 to issue NOC forthwith to the complainant.

2. O.P No.1 entered appearance and contested the case.  O.Ps 2 & 3 neither filed written version nor participated in the case.

O.P No.1 has interalia stated that the present dispute is not a consumer dispute.Rather it is essentially a civil dispute between the parties.The complainant has engaged a driver to ply the vehicle in question on his behalf.The said vehicle has been engaged in commercial activities, as such the complainant ceases to be a consumer as defined U/S-2(d)(1) of the C.P.Act.Copy of the repayment details has been filed which has been marked as Annexure-A.

It is further revealed that in view of the arbitration clause in the agreement between the parties, the arbitration case has already been filed and on 13.6.2012 interim order has been passed in that arbitration proceeding with regard to the custody of the vehicle in question.Subsequently final award has already been passed in that proceeding on 8.3.13.Annexure-B & C are photo copies of the above documents filed in this case.

It is important to leave a mention here that despite the interim order passed in the Arbitration proceeding with regard to custody of the vehicle the complainant has been able to obtain subsequent interim order from this Forum for the same purpose by suppressing material facts.It is as such held that the complainant has not approached this Forum in clean hands. On that score alone the case is not maintainable.

3. We have heard the learned counsels for the complainant and the O.Ps and gone through their pleadings along with annexures.

The O.P No.1 interalia has submitted that the present consumer complaint is not maintainable as the complainant is not a consumer as defined U/S-2(d)(1)of the C.P.Act.He has also engaged a driver on his behalf who was plying the truck in question and the said vehicle has been consistently engaged in commercial activities.The learned counsel for the complainant has taken serious exception to it.As rightly submitted by him that except the bald statement in pleading of O.P.1 there is no other document to prove that the said vehicle was engaged in commercial activities and a driver has been engaged to ply it on behalf of the complainant.In this back drop the unsubstantiated stand taken by O.P.1 is just not acceptable especially when the complainant has made it categorically clear that he was driving the said truck to earn his livelihood by way of self-employment.The argument advanced by O.P No.1 on that point therefore fails.

The next point of submission made by the learned advocate for O.P.1 is that the complainant has not approached this Forum in clean hand and he has suppressed a number of material facts deliberately with oblique motive.More particularly it is stated that there is an arbitration clause in the agreement between the parties and accordingly an arbitration case has already been initiated against the complainant.An interim order has also been passed in the said proceeding on 13.6.12 with regard to custody of the said vehicle and finally award has also been passed on 8.3.13.Photo copy of the above document has been filed and marked as Annexure-B & C.It is also stated that deliberately by suppressing material fact, the complainant in the present case has managed to obtain an interim order to the effect that no coercive action shall be taken against the complainant so far as the truck in question is concerned.The learned counsel for the complainant during course of his argument has fairly submitted that the complainant was not aware of the fact of pendency of such an arbitration proceeding against him and that the arbitration award has been passed violating all procedural norms behind his back.It is also submitted that only photo copies of the award of the arbitrator has been filed and the entire case record with regard to proceeding of the said arbitration matter although called for has not been produced in the court.Objection is also raised that the said award has been passed prior to filing of the present case.On careful examination of the documents on record and after hearing the parties from both the sides, it is crystal clear that there was no whisper about the arbitration proceeding in this case in the pleading of the complainant.It is also apparent on the face of the case record that in the present consumer complaint interim order has been passed on the prayer of the complainant on 20.11.12.The complainant has nowhere denied the existence of such arbitration clause in the agreement.From this it is discernible that the complainant has deliberately suppressed the material facts with oblique motive before this forum and he has not approached this authority in clean hand.

It is important to state that the learned advocate for the complainant has not called in question the legality and correctness of the award vide Annexure-B & C.What has been called in question before us is the procedure adopted by the Arbitrator in arriving at the conclusion and non-production of the entire record including order sheet before us as per his prayer.Law is well settled that this Forum lacks jurisdiction to sit over the award in appeal passed by the Arbitrator to determine the legality and correctness of the same in any manner.The stand taken by the learned advocate for the complainant on this point has no force in it.Law is well settled that once award has been passed, this Forum lacks jurisdiction to deal with the subject matter of the consumer complaint.Even if it is conceded for sake of argument and not otherwise that award has been passed prior to filing of this consumer complaint still then this Forum cannot proceed with the hearing of the present case under the provisions of C.P.Act.In this connection reference may be made to a decision of the Hon’ble National Consumer Disputes Redressal Commission,New Delhi reported in 2006(3) CPR-339 (NC) (The Installment Supply Ltd. Vrs. Kangra Ex-Serviceman Transport Company and another).It has been held in that case that once award has been passed before the complaint was filed, it will govern the dispute between the parties.In view of the decision of the Arbitrator which is binding on the parties, the Fora below should not have passed an order by overlooking the award.

In the ultimate analysis, it is held that the complainant has utterly failed to prove deficiency in service and unfair trade practice on the part of the O.Ps in any manner.Hence ordered;

                                                                                ORDER

The consumer complaint be and the same is dismissed on contest against O.P.1 and exparte against O.Ps 2 & 3.

                  Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 10^th  day of February,2020  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                   President.

                                                                                                                      

                                                                                                           (Smt. Sarmistha Nath)

                 Member(W)