Haryana

Karnal

CC/142/2019

Jeeto Devi - Complainant(s)

Versus

Cholamandalam Investment And Finance Company limited - Opp.Party(s)

Sanjeev Kumar

14 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 142 of 2019

                                                        Date of instt.08.03.2019

                                                        Date of Decision:14.12.2022

 

Jeeto Devi wife of late Shri Mohan Lal, resident of village Baraunda, District Kurukshetra at present resident of house no.100, Gali no.1, Skakti Puram, Karnal.

 

                                               …….Complainant.

                                              Versus

 

Cholamandlam Investment and Finance Company Ltd., Sector-12, Karnal through its Branch Manager/authorized signatory.

 

                                                                      …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Rohit Gupta, counsel for the complainant.

                    Shri Dheeraj Sachdeva, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the husband of complainant namely Mohan Lal since deceased had purchased a vehicle Eicher PRO 1110XP H HSD, bearing registration no.HR-65-A7245 and the said vehicle has been got financed by the husband of the complainant from OP to earn his livelihood. A sum of Rs.12,24,000/- has been financed by OP to be paid in 54 monthly installments of Rs.30,062/- each starting from 01.12.2015 uptil 01.05.2020. The said financed amount of Rs.12,24,000/- has been got insured by the OP from their insurance company. As per term and condition of the insurance policy in case the death of Mohan Lal during the pendency of financed amount, the family members of Mohan Lal would not be liable to pay any further installments to the OP and the financed amount as outstanding on the date of the death of Mohan Lal would be paid by the insurance company to OP. The husband of complainant had deposited/paid 3 installments of Rs.30070/- vide receipt no.3085486908 dated 01.12.2015, Rs.30070/- vide receipt no. 3085487452 dated 31.12.2015 and Rs.30100/- vide receipt no.3085488174 dated 03.02.2016 with the OP. The husband of complainant died on 26.02.2016 and an intimation in this regard was sent to the OP with a request to waive off/terminate the balance financed amount as outstanding on 26.02.2016 and to pay insured benefits etc. to the complainant. It is further averred that complainant has been forced by the OP to make the payment of 8 installments of Rs.30100/- vide receipt no.3083471533 dated 01.03.2016, Rs.30070/- vide receipt no.13857567dated 01.04.2016, Rs.30220/- vide receipt no.13649829 dated 06.05.2016, Rs.30100 vide receipt no.B10012650244 dated 30.06.2016, Rs.30100/- vide receipt no.T10483450046 dated 30.07.2016, Rs.30100/- vide receipt no.T10483450130 dated 30.08.2016, Rs.30100/- vide receipt no.14018944 dated 30.09.2016 and Rs.30100/-, vide receipt no.T10483450505 dated 31.10.2016 to the OP under the pressure and threat to snatch the aforesaid vehicle with an assurance that the said amount of installments alongwith interest would be returned to the complainant on receiving the entire balance financed amount as outstanding on the date of the death of the husband of the complainant from the insurance company from which the financed amount has been insured. A sum of Rs.8,00,000/- has been received by the OP from the insurance company vide fund transfer through RTGs on 23.11.2016 and the balance amount has also already been received by the OP from their insurance company. Thereafter, complainant had approached the OP for the issuance of Loan Clearance Certificate and for completion of the formalities as required for the deletion of the entry of H.P.A entered in the name of the OP in the Registration Certificate of the aforesaid vehicle but OP did not paid any heed to the genuine request of complainant and threatened the complainant to deposit the balance installments or in the alternative they will take the possession of the vehicle in question.  It is further averred that OP with the help of muscle mans and gundas have snatched the vehicle loaded with goods of a third party illegally and forcibly by kidnapping the driver of the complainant at Dhulia (Maharashtra) on 13.02.2018. The complainant requested the OP to release the aforesaid vehicle loaded with goods from their illegal custody and to handover the same to the complainant on coming to know the aforesaid fact. However, OP refused to release the aforesaid vehicle loaded with goods of a third party from their illegal custody and to handover the same to the complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that both Mohan Lal and Rakesh Kumar approached to the OP for availing loan facility for purchase of commercial vehicle Eicher Pro 11.10 Registration no.HR-65-A-7245 is and on the application made by the applicant Mohan Lal and co-applicant Rakesh Kumar an amount of Rs.12,24,000/- was financed to them and a written agreement bearing no.XVFPKAL00001515793 executed on 27.10.2015 and tenure was for 54 months and monthly installment is Rs.30062/- from Cholamandlam Finance and using the same for commercial purpose not for his own use. It is further pleaded that complainant earlier filed a complaint before this Commission titled as Jeeto Devi Versus Cholamandlam vide CC no.106/2019 where the complainant herself admitted in the second para of the complaint that the deceased Mohan Lal got purchased a commercial vehicle. It is further pleaded that the co-applicant Rakesh is also owing an other commercial vehicle Eicher Pro 3015 bearing registration no.HR-45-C-3103.  The relationship between borrower/co-borrower/guarantor is governed by the written contract entered in between the borrower/co-borrower/guarantor and M/s Cholamandlam Finance Ltd. There are various terms and conditions embodied in the written contract. The matter in issue is with respect to contractual obligation of both the parties which cannot be heard arbitrarily. Further, the signed written contract includes a clause Arbitration and accordingly any dispute arose between parties to the contract would be resolved by the sole arbitrator of the company and hence this Commission has no jurisdiction to entertain the present complaint. It is further pleaded that complainant executed a written commercial loan/ Hypothecation Agreement and as per the agreement all the dispute arising out of the above mentioned agreements are subject to jurisdiction at Head Office of the OP at Chennai, all disputes are subject to jurisdiction of Chennai court. It is further pleaded that as per the record maintained by the OP and as per statement of account available with the OP, an amount of Rs.5,23,532/- is pending due against the complainant as per statement dated 04.04.2019. The deceased Mohan Lal Borrower and co-applicant Rakesh has opted for an Insurance from Cholamandlam MS and the sum assured was Rs.8,00,000/- and the deceased Mohan Lal was insured by the Cholamandlam MS a separate legal entity. The deceased Mohan Lal expired during the tenure of the insurance and the claim for the insurance has been paid by the insurance company into the loan accounts of the Mohan Lal and an amount of Rs.8,00,000/- was credited on 23.11.2016. And at the same time the OP requested the LRs of the deceased and co-applicant to clear the loan account but they kept mum for more than two years. It is further pleaded that complainant does not fall within the definition of consumer as envisaged under the Consumer Protection Act. Complainant got financed a commercial vehicle and using the same for commercial purpose and as per Consumer Protection Act person using the unit for commercial does not come under the definition of consumer until and unless it is specifically mentioned by the complainant that the same is used for the purpose of earning his livelihood by means of self-employed. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of statement of bank account of Mohan Lal Ex.C1, copy of payment receipts Ex.C2 and Ex.C3, copy of demand draft Ex.C4, copy of treatment record of Anchal Ex.C5, copy of treatment record of Divyanshu Ex.C6 and closed the evidence on 25.09.2019 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Ankit Panwar GPA cum Legal Manager Ex.OP1/A, copy of loan agreement Ex.OP1, copy of certificate of insurance Ex.OP2, copy of statement of account dated 04.04.2019 Ex.OP3, copy of repayment schedule Ex.OP4 and closed the evidence on 25.09.2019 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that the husband of complainant, namely Mohan Lal (since deceased) had purchased the vehicle in question to earn his livelihood and the same was got financed  from the OP for a sum of Rs.12,24,000/-, which was to be paid in 54 monthly installments. The said financed amount of Rs.12,24,000/- has been got insured by the OP from its insurance company. As per terms and conditions of the insurance policy, in case the death of loanee during the pendency of financed amount, the family members of Mohan Lal would not be liable to pay any further installments to the OP and the financed amount would be paid by the insurance company to OP. The husband of complainant had deposited three installments with the OP and died on 26.02.2016. An intimation in this regard was given to the OP with a request to waive off/terminate the balance financed amount as outstanding on 26.02.2016. He further argued that complainant has been forced by the OP to make the payment of eight installments which were deposited by the complainant under the pressure. The OP assured the complainant that the amount of installments alongwith interest would be returned to the complainant on receiving the entire balance financed amount as outstanding on the date of the death of the husband of the complainant from the insurance company from which the financed amount has been insured. A sum of Rs.8,00,000/- has been received by the OP from the insurance company. Complainant had approached the OP for the issuance of Loan Clearance Certificate and for completion of the formalities as required for the deletion of the entry of H.P.A entered in the name of the OP in the Registration Certificate of the aforesaid vehicle but did not do so and threatened the complainant to deposit the balance installments. He further argued that OP with the help of muscle mans and gundas have snatch the vehicle loaded with goods of a third party on 13.02.2018. The complainant requested the OP to release the vehicle in question loaded with goods but OP refused to release the vehicle even after depositing of Rs.1,00,000/- as per the order of this Commission and lastly prayed for allowing the complaint.

8.             Learned counsel for the OP, while reiterating the contents of the written version, has vehemently argued that Mohan Lal and Rakesh Kumar approached to the OP for availing loan facility for purchase of commercial vehicle Eicher Pro 11.10 and on the application made by the applicant Mohan Lal and co-applicant Rakesh Kumar an amount of Rs.12,24,000/- was financed to them. He further argued that as per statement of account dated 04.042019, an amount of Rs.5,23,532/- is pending against the complainant. The borrower expired during the tenure of the insurance and the claim for the insurance has been paid by the insurance company into the loan accounts of the Mohan Lal and an amount of Rs.8,00,000/- was credited on 23.11.2016 and at the same time the OP requested the LRs of the deceased and co-applicant to clear the remaining loan account but they kept mum for more than two years.  He further argued that the vehicle in question is being used for commercial purpose and this Commission has no jurisdiction to entertain and try the present complaint. He further argued that as per arbitration clause of the Agreement, this Commission has got no jurisdiction to try and decide the present complaint. He further argued that this Commission has also no territorial and pecuniary jurisdiction to try and entertain the present complaint and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the husband of complainant availed a loan facility of Rs.12,24,000/- from the OP for purchasing of vehicle in question and the said loan amount has been disbursed on 27.10.2015. It is also admitted that the said loan amount was insured for a sum of Rs.8,00,000/- and the said amount credited in the account of the OP on 23.11.2016. It is also admitted that the installment of the loan amount was fixed of Rs.30070/- and the loan amount was to be repaid in 54 monthly installments. It is also admitted that the husband of complainant expired on 26.02.2016.

11.           The first question for consideration is that whether the vehicle in question was being used for commercial purpose and present complaint is maintainable or not?

12.           The husband of complainant purchased the vehicle in question for earning his livelihood. This fact has been specifically mentioned in para no.2 of the complaint as well as affidavit Ex.CW1/A of the complainant. There is no other source of income of the loanee namely Mohan Lal. The onus to prove that the vehicle in question was being used for commercial purpose lies upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. There is nothing on the file to establish that the vehicle in question was being used for commercial purpose and husband of complainant was having other source of income. In this regard we are relying upon the authority case titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission in which Hon’ble National Commission held that      

“A contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable”.

Further in M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 in which the Hon’ble Supreme Court held that

“if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer”.

13.             Keeping, in view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  

 14.          The next question for consideration is that whether the present complaint is also maintainable in view of the Arbitration clause, in the Loan Agreement or not?

 15.          In this regard, we are of the considered view that if for the sake of argument it may be considered that the arbitration clause between the OP and the complainant, even in that case also this Commission has jurisdiction to try and entertain the present complaint, as it is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition (c) Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

 

Further, similar view was taken by Hon’ble National Commission in case titled as Sanjay Gopinath Versus M/s IREO Grace Realitech Pvt. Ltd. (bunch of the cases) decided on 31.08.2021 wherein Hon’ble National Commission while placing reliance on the judgment of Hon’ble Supreme Court of India titled as M/s Emaar MGF Land Limited Versus Aftab Singh-I (2019) CPJ 5 (SC) has held that an Arbitration clause in the Agreement does not bar the jurisdiction of Consumer Fora to entertain the complaint. Hence, the objection raised by the learned counsel for the opposite party that the clause of Arbitration bars this commission from entertaining the complaints is unsustainable.

16.           Hence, keeping in view ratio of the law laid down in the above judgments and facts and circumstances of the case, the present complaint is maintainable before this Commission.

17.           The next question for consideration is that whether this Commission has territorial as well as pecuniary jurisdiction to try and entertain the present complaint or not?

 18.          The husband of complainant has got financed the vehicle in question from the OP at Karnal. The loan installments have also been repaid by the husband of complainant as well as complainant to the OP at Karnal. The vehicle in question also got insured at Karnal hence, this Commission has territorial jurisdiction to try and entertain the present complaint.

 19.          It is pertinent to mention here that the issue with regard to pecuniary jurisdiction has already been decided by this Commission, vide order dated 12.04.2019 and OP has not challenged the said order before Higher Court of law. Thus, the said order has attained finality.

20.           As per the version of the complainant, after the death of her husband, she was under impression that the remaining loan amount is to be paid by the insurance company.

21.           The loan amount of Rs.12,24,000/- has been disbursed  by the OP on 27.10.2015. The said loan amount was got insured for the tune of Rs.8,00,000/-. OP has relied upon the statement of account Ex.OP3 for the period of 20.10.2015 to 04.04.2019. On perusal of the said statement of account it reveals that husband of the complainant in his life time has repaid the three installments of Rs.30070/-on 01.12.2015, 31.12.2015 and 03.02.2016 respectively.

22.           The husband of complainant expired on 26.02.2016 and after his death, complainant has also repaid the eight installments i.e. Rs.30100/- dated 01.03.2016, Rs.30070/-, dated 01.04.2016, Rs.30220/- dated 06.05.2016, Rs.30100/- dated 30.06.2016, Rs.30100/- dated 30.07.2016, Rs.30100/- dated 30.08.2016, Rs.30100/- dated 30.09.2016 and Rs.30100/-, dated 31.10.2016 to the OP. It has  been proved from the said statement of account Ex.OP3 neither the husband of complainant nor the complainant had become defaulter for repaying the loan amount and all the loan installments have been paid by them regularly as per schedule of the loan installment.

23.           It is also admitted that insurance company has paid  Rs.8,00,000/- to the OP on 29.11.2016. It is very surprising that on receipt of said insured amount, OP has not adjusted the whole amounts in the loan account of the complainant rather they started adjusting the said amount in the installments and the same process have been completed by the OP from dated 28.01.2017 to 15.12.2018. This fact has been proved from the statement of account Ex.OP3. It was the duty of the OP, on receipt of the insured amount, same should have been adjusted at the same time and installments of remaining amount should have been re-scheduled. It is also very surprising that OP has also imposed the Field Visit Charges in the said account statement, ignoring the facts that the insured amount has already been credited in their account.  OP has enjoyed the insured amount for a very long time and from the said amount have started repaying the loan amount in monthly installments, which is totally illegally, arbitrary and unjustified in the eyes of law.

24.           During the pendency of the present complaint, OP has taken into possession of the vehicle in question and by the order of this Commission, complainant has paid Rs.1,00,000/-on 18.04.2019 and this Commission has directed the OP to release the vehicle in question on receipt of the said amount but OP has not released the vehicle and complainant filed a contempt application which is still pending for adjudication and fixed for 03.01.2023.

25.           In view of the above discussion, it has been proved on the record that the account statement Ex.OP3 is totally illegally, arbitrary and unjustified and same is not binding upon the complainant, thus the act of the OP amounts to deficiency in service and unfair trade practice.

26.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP not to snatch the vehicle in question in any manner. We further direct the OP to re-schedule the loan account of complainant on the date of receipt of Rs.8,00,000/- from the insurance company and also adjusted all the amount paid by the complainant and her husband in the loan account and after that recovered the remaining loan amount, if any. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 14.12.2022                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

 

 (Vineet Kaushik)               (Dr. Rekha Chaudhary)

      Member                               Member