BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 197 of 2018
Date of Institution : 16.07.2018.
Date of Decision : 23.10.2019.
Satpal Singh, aged about 50 years son of Shri Kehar Singh, resident of Ward No.11, Ellenabad, Tehsil Ellenabad, District Sirsa.
……Complainant.
Versus.
1. D.D. Motors, Hisar Road, Sirsa (authorized dealer of Mahindra Tractors), through its proprietor/ partner/ Incharge.
2. M/s Magma Fin Corp Limited, office: Dabwali Road, Sirsa, District Sirsa, through its Manager/ Incharge/ authorized person.
3. M/S Magma Insurance company, Magma House, 24 Park Street, Calcutta- 500 016, through its Managing Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
MRS.SUKHDEEP KAUR………MEMBER.
Present: Sh. B.S. Vinayak, Advocate for complainant.
Sh. R.K. Chaudhary, Advocate for opposite party no.1.
Sh. Saurabh Nagpal, Advocate for opposite party no.2.
Sh. R.K. Mehta, Advocate for opposite party no.3.
ORDER
The case of complainant, in brief, is that complainant purchased one tractor Mahindra- 575 from opposite party no.1 for Rs.6,78,000/- vide invoice No.991 dated 8.3.2016. At that time, the op no.1 received huge amount from the complainant in cash on account of preparation of registration certificate from the concerned Registering Authority. But till date the op no.1 has not handed over the RC to the complainant. That op no.1 has got financed the above said tractor from op no.2 and also received huge amount on account of file charges but both the ops have not handed over any documents with regard to the hypothecation etc. Even the op no.2 got insured the above said vehicle from op no.3 and received huge amount on account of premium of insurance but till date policy has not been supplied to the complainant rather told that this insurance will be effective for a period of one year w.e.f. 8.3.2016. It is further averred that at the time of financing the above said tractor, the ops got signatures of complainant on many printed, blank forms and blank papers and as an advance security the ops have also taken nine blank signed cheques from the complainant of his banker Oriental Bank of Commerce, Ellenabad from his account No.04422191002407. At that time, the ops assured the complainant that these signed cheques shall not be misused against the complainant and same cannot be acted upon in any manner and shall not be presented to the bank. That the complainant has paid installments regularly to ops and Rs.1,50,000/- has already been paid by complainant to ops on account of above said loan. But the ops have not given any documents regarding the above said vehicle, loan and insurance etc. That the complainant approached and requested the ops on many occasions to supply RC, insurance and other documents including insurance policy but all in vain and the ops have postponed the matter with one pretext or the other. It is further averred that thereafter, the above said tractor was stolen on 18.7.2016 in the area of village Mithi Sureran. The complainant tried to trace out the above said vehicle but all in vain and ultimately a rapat no.39 dated 30.7.2016 was lodged by complainant with police station Ellenabad. But till date the above said tractor has not been traced out by police. The complainant informed op about all these facts and he is ready to pay interest, if any for a period of three months due to non tracing of vehicle and thereafter he is not responsible for the same in any manner. That immediately after theft of vehicle complainant informed to ops no.2 and 3 and submitted all required documents which were available with him and he has submitted his claim before ops nos. 2 and 3 but all in vain and the ops are not ready to give any relief whatsoever rather they have threatened the complainant to pay the installments of loan taken by complainant to finance company. The ops have received huge amount on account of premium of insurance, hence, the ops jointly and severally are liable to pay loan to finance company with interest thereon. The complainant has no other source of income and he cannot pay the installments. That complainant approached and requested the ops to pay the installments of loan and also requested to return the blank signed cheques and to desist from recovering any amount, but all the times the ops postponed the matter with one pretext or the other. Ultimately, the complainant served a legal notice upon the ops on 3.8.2016 but to no effect. Then ops in collusion with each other have refused to admit the claim of complainant rather threatened to recover the amount of loan and also threatened to misuse the signed blank cheques. That the act and conduct of the ops comes under the ambit of deficiency in service as well as unfair trade practice. Hence, this complaint.
2. On notice, opposite parties appeared. Op no.1 filed written statement raising preliminary objection that complainant has no cause of action against the answering op. It is submitted that answering op sold a tractor Mahindra 575 to the complainant on 8.3.2016 for an amount of Rs.6,78,000/- vide invoice No.991 dated 8.3.2016. The tractor was financed by op no.2 for an amount of Rs.4,40,000/- and the balance amount of Rs.2,38,000/- was paid by complainant in cash to the answering op. The original invoice, sale certificate and Form 22 were handed over to complainant and complainant received the possession of tractor in satisfactory condition. Thereafter, complainant never approached the answering op for any complaint. It is further submitted that it is wrong and denied that answering op has received any amount from complainant in cash on account of preparation of registration certificate as alleged. Remaining contents of complaint are also denied.
3. Op no.2 filed reply raising certain preliminary objections regarding jurisdiction etc. It is submitted that as per agreement entered into between the parties hereto all disputes, differences, claims and questions whatsoever arising out of this agreement shall be referred to the Arbitrator and as such this Forum does not have the jurisdiction to entertain the present complaint. An award has already been passed against the complainant by the Arbitrator. The execution application filed against complainant/JD in this regard is pending for disposal before the Hon’ble Court at Sirsa. It is further submitted that relationship between the op and complainant is that of creditor and borrower and borrower is not a consumer under the Act. The dispute is between complainant and op no.1 regarding registration certificate of vehicle and there is no dispute with op no.2 and no relief is claimed against op no.2. On merits, it is submitted that complainant has purchased one new tractor from op no.1 with the help of finance by op no.2 and an amount of Rs.4,67,925/- was sanctioned and paid to the dealer op no.1. The loan was to be paid by complainant to op no.2 within 48 months as per payment schedule mentioned in loan agreement. But till date complainant has paid only Rs.6000/- to the company since the beginning of loan. The vehicle was duly hypothecated with the Magma financer, hypothecation was already entered on the invoice of the vehicle and on the insurance policy of the vehicle. It is further submitted that no blank paper or any printed blank performa was got signed from complainant. It is specifically denied that complainant has paid Rs.1,50,000/- to the op on account of loan, no receipt was placed on file by complainant. The complainant has not disclosed the true facts to this Forum. No intimation of stolen/loss of vehicle was given to op no.1 and no copy of rapat or any intimation was supplied to the Financer. Remaining contents of complaint are also denied.
4. Op no.3 filed written statement taking certain preliminary objections. It is submitted that no intimation regarding alleged theft has ever been received by answering op from the insured/ complainant or op no.2. According to the term and conditions of the policy, insured/ complainant was under contractual obligation to give the intimation about any incident, theft immediately to the company, but insured failed to comply with the term and conditions of the insurance policy. It is further submitted that except issuance of policy, remaining contents of complaint does not relate to answering op, hence reply can be given by ops no.1 and 2. It is denied that till date policy has not been supplied. The answering op issued the policy immediately. Remaining contents of complaint are also denied.
5. The parties then led their respective evidence.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has deposed and reiterated all the averments in the complaint. He has also placed on file copy of legal notice Ex.C1, postal receipt Ex.C2, copy of invoice Ex.C3, copy of rapat Ex.C4, copy of adhar card Ex.C5, copy of declaration Ex.C6 and copy of letter Ex.C7. On the other hand, op no.2 produced affidavit of Sh. Rajiv Jindal as Ex.RW1/A, copy of letter alongwith copy of award Ex.R1, copy of agreement Ex.R2, copy of statement of account Ex.R3, copy of petition Ex.R4. OP no.3 produced affidavit of Sh. Sunil Gupta, Deputy Manager Legal as Ex.RW2/A. OP no.1 produced affidavit of Sh. Yogesh Bansal as Ex.RW3/A.
8. During the course of arguments, Sh. Saurabh Nagpal, learned counsel for op no.2 has suffered a statement that award has been passed against the complainant on 26.4.2017 whereas present complaint has been filed on 16.7.2018, the copy of award is Ex.R1 and execution of the award is pending in the Court of Sh. Parveen Kumar, learned Addl. District Judge, Sirsa against Satpal Singh and is fixed for 15.2.2020 for notice.
9. So, it appears from the statement of learned counsel for op no.2 that there were arbitration proceedings between complainant and Financer op no.2 and award dated 26.4.2017 was passed by the Arbitrator. However, present complaint has been filed by complainant on 16.7.2018. As per statement of learned counsel for op no.2, execution application for enforcement of the award is pending in the Court of Sh. Parveen Kumar, learned Addl. District Judge, Sirsa and is fixed for 15.2.2020. The perusal of the record also reveals that op no.2 has already placed on record copy of the award dated 26.4.2017 as Ex.R1. It is settled principle of law that once arbitration proceeding has taken place between parties and arbitration award has been passed by a competent arbitrator, the complaint under Consumer Protection Act is not maintainable at all.
10. Though, complainant has alleged in his complaint that he has paid Rs.1,50,000/- to op no.2 financer but on the other hand op no.2 has taken plea that complainant has deposited only Rs.6,000/-. In order to prove this plea, the complainant has not placed on record any payment receipts from which it could be presumed that he has already paid Rs.1,50,000/- to op no.2.
11. The second plea of complainant is that complainant has not received registration certificate of vehicle from op no.1 though he had made payment for the same. The perusal of the record reveals that tractor was purchased by complainant on 8.3.2016 for a sum of Rs.6,78,000/- and present complaint has been filed by complainant on 16.7.2018 after a lapse of more than two years and complainant has not placed on record any document from which it could be presumed that complainant has made any payment to op no.1 for issuance of registration certificate and has ever made any request to get registration certificate of the vehicle issued. So, this plea of complainant also appears to be devoid of any merit. The third plea of complainant is that he has executed certain blank documents and has also handed over blank cheques to op no.2 financer, but however, complainant has not mentioned denomination (numbers etc.) of those cheques and has also not mentioned that how many cheques were given by him. So, this plea of complainant also appears to be devoid of any merit.
12. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced in open Forum. President,
Dated:23.10.2019. Member District Consumer Disputes
Redressal Forum, Sirsa.
