RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No. 1309 of 2015
Indusind Bank Ltd., Branch Office, Near Hotel
Mansarowar, Civil Lines, Ayub Khan Chauraha,
P.S., Kotwali and District, Bareilly.
Registered Office, 2401, General Thimaiya Road,
Cantonment, Pune. State Office, Saran Chamber-II,
Park Road, Hazratganj, Lucknow through it's
ManagerLegal. …Appellant.
Versus
1- Chotelal s/o Sri Prabhu Dayal,
R/o Chahbai, Bankhana, Bareilly.
2- Mohammad Alam s/o Miyanjan,
R/o 187, Ghoshiyan, Gulabnagar,
Bareilly. ...Respondents.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Raj Kamal Gupta, Member.
Shi Brijendra Chaudhary for the appellant.
Sri K.M. Agarwal for the respondents.
Date 27.2.2018
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
Aggrieved by the judgment and order dated 23.4.2015, passed by the District Forum-I, Bareilly in complaint case No.22 of 2010, the appellant has preferred the instant appeal.
The facts leading to this appeal, in short, are that the respondents/complainants had got a truck made of Tata Motors Ltd. purchased from Commercial Motors, after getting it financed by the appellant/OP on 5.9.2006. The complainants had purchased the truck for livelihood of their family. The complainants had arranged
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Rs.2,60,000.00 and the representatives of the OP furnished details of investments providing Chassis number and Engine number of the vehicle which was subsequently registered at RTO, Bareilly as UP 25 T-6546. The complainants, thereafter, made payments of instalments totaling to Rs.2,88,200.00. The complainants could not deposit the instalments of July and August, 2007 hence, in the month of September, 2007 the said truck was forcibly taken by the appellant/OP. The complainants were assured that about Rs.2 lacs shall be reimbursed to him after selling of the truck. The complainant, thereafter, contacted the OP but to no avail and suddenly received a registered letter from the OP raising illegal demand of Rs.1,18,398.00 from some arbitration proceedings. The OP had never informed about the intended sale and sale price of the truck. The market price of the 11 months old truck shall not be less than Rs.11 lacs. The complainants suffered loss to the tune of Rs.2,60,000.00 and the demand of Rs.1,18,398.00 was totally an illegal one, hence a complaint case was filed for compensation etc. by the complainants in the District Forum wherein, the OPs filed their WS mentioning therein that the complainants were not the consumers as he had two more trucks in their names and was engaged in the business of transportation. Besides, the complainants defaulted in making payments of instalments and the complainants had to deposit the truck with the Bank as they could not repay the instalments and it is totally false that the truck was forcibly taken by the answering OP. The Branch Manager
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of the OP never assured the complainants for reimbursement of Rs.2 lacs rather a letter dated 19.9.2007 was issued by the OPs asking the complainants to pay the total outstanding amount and get the truck released in their favour but the complainants could not do so. Hence, the OPs had to sell the truck and after selling the truck Rs.1,18,398.00 was found due on the complainants hence, a notice was sent. Thereafter, the matter was referred for arbitration where the award has been passed against the borrower. As per the agreement, the matter was to be referred to the Arbitrator and therefore, this complaint was not maintainable and liable to be dismissed. The ld. Forum, thereafter, passed the impugned order on 23.4.2015 as under:-
"परिवादीगण छोटेलाल आदि का उपभोक्ता परिवाद विपक्षी बैंक के विरूद्व निम्नलिखित व्यवस्थानुसार स्वीकृत किया जाता है:-
(क) यह कि विपक्षी बैंक द्वारा जारी मांगपत्र अंकन 1,18,398/- रूपये निरस्त किया जाता है।
(ख) यह कि विपक्षी बैंक अंकन 91,072/- रूपये परिवादी नं01 छोटेलाल को 30 दिन के अंदर अदा करे, अन्यथा परिवादी नं01 छोटे लाल उक्त धनराशि पर परिवाद दायर करने की दिनांक 27.01.10 से 09 प्रतिशत वार्षिक ब्याज प्राप्त करने का अधिकारी होगा।
(ग) यह कि परिवादी संख्या-1 छोटे लाल विपक्षी बैंक से उक्त धनराशि प्राप्त करने के बाद उसकी आधी धनराशि परिवादी संख्या-2 राम स्वरूप (मृतक) के वारिसान को अदा करने के लिए जिम्मेदार होगा।
(घ) यह कि परिवादी वाद व्यय के रूप में विपक्षी बैंक से अंकन 5000/-रू0 प्राप्त करने का अधिकारी होगा।"
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Feeling aggrieved with the impugned order that the appellant has filed this appeal mainly on the grounds that the matter was referred to the Arbitrator and that the complaint was not maintainable in the Forum. Besides, the complainants were not the consumers as they were having two trucks and were carrying the business of transportation. The vehicle was surrendered before the bank as the complainants were not able to pay the dues to the Bank but the ld. Forum has passed the order against the facts and evidence in an arbitrary manner therefore, the impugned order is liable to be set aside and the appeal allowed.
The respondents/complainants have filed their objections.
Heard counsel for the parties and perused the entire records.
In this case, it is not disputed that the complainants had purchased a truck after getting it financed through the appellant/OP. It is also not disputed that certain instalments could not be paid by the complainants and therefore, the vehicle was sold out in an auction by the OPs after getting its possession. The disputed point according to the appellant/OP is that despite selling the truck a certain amount of Rs.1,18,398.00 was found due to the complainants, therefore, a notice was sent to them to repay that but the respondents/complainants did not make the payment of it and even though they did not commit any deficiency in service in selling the truck and making payments of the amount due to the complainants, the ld.
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Forum has passed the order illegally. On the contrary, the disputed point according to the complainants is that when the vehicle was sold out then proper procedure of its auction was not taken and instead of reimbursing the complainants, an illegal demand of Rs.1,18,398.00 was made by the appellant/OP hence, the appellant had committed deficiency in service. Therefore, the District Forum has rightly passed the impugned order. It is also disputed by the appellant/OP that the complaint was not maintainable as the respondents/complainants were not the consumers as they were having two trucks and were involved in a business of transportation. It is also challenged by the appellant/OP that the complaint was not maintainable as the matter was decided by the Arbitrator as per the agreement and therefore, the ld. Forum did not have the jurisdiction to decide this case.
So now three issues arise:
- As to whether the Forum below had had the jurisdiction to decide the complaint in view of the arbitration agreement proving for dispute to be settled through arbitration or not,
- As to whether the complainants had purchased the truck for commercial purposes or not, and
- As to whether the appellant/OP committed any deficiency in service in selling the truck and thereafter making demand of Rs.1,18,398.00 from the complainants or not.
We first take up the point as to whether the Forum below had had the jurisdiction to decide the complaint in
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view of the arbitration agreement proving for dispute to be settled through arbitration or not. In this regard, it is argued by the ld. counsel for the appellant that as per the agreement entered into for finance of the vehicle, the dispute, if any, was to be referred to Arbitrator and in the instant case, the arbitration proceedings were taken up and hence, this complaint was not maintainable in the Forum below. It is argued by the ld. counsel for the respondents/ complainants that the remedy under the provisions of the Consumer Protection Act can not be shut out on the ground of any arbitration proceeding as the remedy under the Consumer Protection Act is in addition to any other remedy and is not in derogation of it. As it has been held many a times by the Hon'ble National Commission that the arbitration clause can not debar a complaint from being filed in the Consumer Fora. Therefore, on the basis of arbitration in the agreement, the complainants can not be stopped from filing a complaint, therefore, it is concluded that the complaint was very well maintainable in the Forum below despite arbitration clause in the agreement.
Now we come to the next issue as to whether the complainants had purchased the truck for commercial purposes or not. In this regard, it is argued by the ld. counsel for the appellant that the complainants had purchased the truck for commercial purposes and therefore, were not the consumers as provided under Section 2(d) but in this regard, it is argued by the ld. counsel for the respondents that the complainants had purchased the truck for their livelihood and therefore, they
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fall within the explanation provided for the clause commercial purposes wherein if a person buys goods for the purposes of earning his livelihood by means of self-employment then he is not included in the aforesaid definition where it is provided that the consumer who buys goods for any commercial purpose is not a consumer. The complainants have specifically mentioned that they had purchased the truck for their livelihood and therefore, they were not to be included in the clause of commercial purpose as provided under the explanation of Section 2(d) (i)(ii). There is no evidence to conclusively prove that the complainants were involved in the huge business of transportation and since they have categorically stated that they had purchased the truck for the purpose of livelihood therefore, it is concluded that the complainants had purchased the truck for earning livelihood and therefore, it can not be said that they did not fall within the definition of the consumer.
Now we come to the main issue as to whether the appellant/OP committed any deficiency in service in selling the truck and thereafter making demand of Rs.1,18,398.00 from the complainants or not. In this regard, we find that the complainants themselves have admitted that they defaulted in making payments of certain instalments due to them. Therefore, under those circumstances, the appellant have had the authority to repossess the vehicle in question. So there was nothing wrong if the vehicle was repossessed by the appellant/OP but after taking possession of the vehicle the appellant
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appears to have taken an irregular course for realizing the amount due from the complainants as according to the appellant themselves, a notice dated 19.9.2007 was issued to the respondents to deposit the amount due else the vehicle will be sold out. According to the appellant, the complainants despite receiving notice did not make payment of the amount due and hence, the vehicle was sold out. According to the appellant after selling the vehicle, the amount received through sale was not able to satisfy the amount due from the complainants and hence, the amount of Rs.1,18,398.00 was found still due from the complainant therefore, this amount was demanded from the complainants. However, it has not been made clear as to whether the notice for auction of the vehicle was given to the complainants or not and whether the notice for auctioning the vehicle was published through any newspaper or not. It has also not been made clear as to for how much amount, the vehicle was sold out and how the amount of Rs.1,18,398.00 was arrived at as due from the complainants. There is no evidence to show that the complainants were served the notice dated 19.9.2007. It is also not clear as to when the vehicle was sold out after giving of the notice dated 19.92007. In fact, there appears to be eerie silence in the entire transactions right from issuing notice to the complainants to the auction and sale of the vehicle and unfortunately the transparency which should have been there for the purposes of auctioning the vehicle and realizing the amount is absolutely lacking in the instant case. In this regard, the ld. Forum has rightly
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concluded as to how the cost of the vehicle was Rs.11,54,000.00 about a year back of taking possession of that vehicle and hence, even if after lapse of one year 20% is deducted from that amount then the cost of the vehicle comes to Rs.9,23,200.00 on the date of repossession of the vehicle and therefore, the financed amount of Rs.10,59,000.00 @ 5.56% p.a. interest where the complainants had paid 9 instalments to the tune of Rs.2,88,200.00 upto 5.9.2006, hence, the amount which was to be paid by the complainants on the date of repossession of the vehicle on 13.9.2007 came to about Rs.11,20,328.00. Hence, the complainants were only liable to make payment of Rs.8,32,128.00 as they had already made payment of Rs.2,88,200.00 hence, the cost of the vehicle came to about Rs.9,23,200.00 and if the amount due from the complainants of Rs.8,32,128.00 was deducted from it then the complainants were found entitled to Rs.91,072.00 from the appellant/OP. Since obviously, the appellant/OP had committed deficiency in service in not coming up clearly about the auction and its sale of the vehicle and hence, it is clear that they obviously committed deficiency in service in showing the vehicle to have been sold out on a lesser amount than what should be actual cost of the vehicle and therefore, has passed the order for payment of Rs.91,072.00 to the complainants. We find that the Forum below has given a very rationale order in this regard and therefore, we do not find any justification to interfere in the impugned order passed by the Forum below. The appeal deserves to be dismissed.
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ORDER
The appeal is dismissed. Parties shall bear their own costs.
Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Raj Kamal Gupta)
Presiding Member Member
Jafri PA II
Court No.2
