STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 10.04.2019
Date of final hearing: 09.11.2023
Date of pronouncement: 20.12.2023
First Appeal No.367 of 2019
IN THE MATTER OF:-
- Jamurat Jha w/o Sh. Abdul Kadir, aged 28 years.
- Sh. Abdul Kadir, aged 34 years, resident of H.No. 220, Old Hamida, Anand Colony, Yamuna Nagar.
....Appellants
Versus
- HDB Financial Services Ltd. A Company incorporated under the provision of the Companies Act, 1956 having its branch office at SCO-42043, Sector 17, Commercial Belt, HUDA Jagadhri through its Branch Manager.
- Shree Ram General Insurance Company Ltd. Opp. Lal Dwara Mandir, FF Near Waryam Singh Hospital, Yamuna Nagar. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Rohit Goswami, counsel for the appellants.
Sh. S.C. Thatai, counsel for respondent No. 1.
Sh. Jatin Sehrawat, proxy counsel for Sh. Sachin Ohri, counsel for respondent No. 2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 72 days in filing of present appeal stands condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this appeal No.367 of 2019 has been invited by unsuccessful complainants as named above, to the legality of order dated 13.12.2018 passed by District Consumer Disputes Redressal Forum-Yamuna Nagar at Jagadhari (In short “District Consumer Commission”) in complaint case No.182 of 2016, vide which their complaint has been dismissed.
3. Complainants alleged that: they wanted to purchase second hand truck and were in need of money for that. They approached OP No.1-financier to provide them financial help. After completion of requisite formalities, OP No.1 disbursed loan of Rs.6,66,000/- to them, which was repayable by way of monthly installments @ Rs.23,944/- w.e.f. 04.06.2013 to 04.04.2016. Complainants purchased truck No. HR-58B-4817 for Rs.8,50,000/- from Gurpreet Singh S/o Sh. Daljit Singh, R/o Yamuna Nagar after paying margin money of Rs.1,84,000/- plus financed amount of Rs.6,66,000/-. Truck was got insured from OP No.2 vide insurance policy No.102017/31/13/007494 for Rs.7,00,000/-, being its insured value. Complainant started repaying loan to OP No.1 and paid Rs.1,16,000/- up to December-2013. Unfortunately, truck met with an accident in Landora, Haridwar (UP). Intimation of accident was given to OPs. They brought truck at Yamuna Nagar by spending Rs.15,000/- and OP No.2 appointed its surveyor. All documents were handed over to surveyor including estimate of repair issued by mechanic-Abbas, who repairs truck, bus body as well as by M/s Kadar Motor Works for repair of engine etc. Total amount came to tune of Rs.3,79,000/-. Due to accident of truck, complainants failed to pay two installments to OP No.1-financer, who without any intimation and knowledge to them took possession of truck with help of his musclemen, which was parked with Abbas Truck and Bus Body Repair situated at Industrial Area, Yamuna Nagar. When complainant came to know about illegal possession of truck in question by OP No.1, they went to its office and requested to release truck, but OP No.1 refused to release it, until payment of remaining loan is paid. Complainants issued legal notice to OP No.1. Despite receipt of legal notice; it neither released truck, nor replied to legal notice. Complainants came to know that truck has been sold by OP No. 1 illegally for Rs.1,50,000/- to third party, for meager amount. Prior to accident of truck, in month of October/November-2013, complainants got replaced eight tyres by paying Rs.1,44,000/-. Actual value of truck would not be less than Rs.8,50,000/-. Had, OP No. 1, not taken its illegal possession from Abbas Truck and Bus Body Repair; it would have got it repaired after getting insurance amount OP No.2. OP No.1 filed execution for alleged arbitration proceedings and award dated 30.09.2014 against complainants by misusing process of law. They came to know about it, when they received notice of Additional District Judge at Jagadhari. Prior to it, they did not receive any notice with regard to arbitration proceedings nor they were given opportunity to contest the same. As per Arbitration Award dated 30.09.2014; they were held liable to pay Rs.5,14,852/- to OP No. 1 along with interest @18% p.a. It is pleaded that Arbitration Award dated 30.09.2014 being wrong and illegal is being challenged by filing petition under Section 34 of Arbitration and Reconciliation Act, 1996. It is pleaded that: OP No. 2 despite completion of formalities; OP No. 2 did not settle claim of complainants in terms of insurance policy. Rather, vide letter dated 09.06.2014, it demanded certain documents for settlement of claim which were supplied vide letter dated 07.07.2014, but despite that claim has not been settled by OP No.2, which amounts to deficiency in service on the part of OPs and they (complainants) suffered mental agony, harassment and economic loss for which OPs are liable to pay compensation of Rs.50,000/- to complainants. OP No. 1 is liable to refund Rs.1,84,000/- being margin money and to pay Rs.1,16,000/- being the amount of installment paid by complainants upto December -2013 and Rs.1,44,000/- being price of eight tyres along with expenses of Rs.15,000/- spent to bring truck from Landura to Yamuna Nagar with upto date interest. OP No. 2 is liable to make payment of Rs.3,79,000/- as claim on the basis of estimate given by mechanic-Abbas and Kadar to complainants with up to date interest and Rs.50,000/- as compensation.
4. Upon notice, OPs appeared; filed their written statement pleading therein about non-maintainability of complaint. It is pleaded that there is no deficiency in service on the part of OP No.1. For getting loan facility; agreement No. 472663 was executed by it with complainants. OP No. 1 financed the vehicle for commercial purpose. Complainants committed default in payment of EMI and not paid any installment after 30.11.2013. Complainants handed over financed vehicle/Truck to OP No. 1 which was sold by it with complainants’ consent. There was arbitration agreement between the parties. Arbitrator has order and issued decree in its favour to recover Rs.5,14,852/- with interest from complainants. Rs.5,30,481.96 is pending against complainants from 14.07.2014 and execution petition has been filed by it. OP No. 1 has every right to proceed to recover the same with interest. It is pleaded that OP No. 1 has first right over insurance proceeds.
5. OP No. 2-insurer pleaded that truck was not in custody of complainants as the same has been confiscated by OP No.1 due to non-payment of loan amount. It is in possession of OP No. 1. It has not been got repaired by complainants. Without assessment of damages; it is not possible for OP No. 2 to settle the claim of complainants. These facts were in knowledge of complainants and also told to surveyor by complainants that vehicle is under custody of financer and complainants have not having enough money to release the same. These facts have been mentioned by surveyor in his report dated 16.03.2014. Various notices dated 28.03.2014, 07.04.2014, 18.04.2014 and 05.05.2014 were given to complainants for clearing documentation formalities. Claim of complainants was closed by treating it as ‘No Claim’. It is pleaded that OP No. 2 is not guilty of negligent or deficient service.
6. By way of application OP No. 1-fianncer has pleaded that Arbitration Award dated 30.09.2014 was passed against the complainants. To enforce the same execution is pending in the Court of learned Additional District Judge, Yamuna Nagar at Jagadhri. Arbitration Award dated 30.09.2014 is prior to filing of complaint. It governs the dispute between parties and decision of arbitration is binding. Forum has no jurisdiction to try and entertain the complaint.
7. Complainants, in their reply to said application have denied any arbitration agreement between the parties and stated that it is illegal, null and void, not valid as per law. They were not told by OP No. 1-financer about arbitration agreement which is outcome of ‘fraud and misrepresentation’. Complainants are residing at Yamuna Nagar. Office of OP No. 1-financer is also situated at Yamuna Nagar. No prudent person would agree for arbitration agreement, in case of dispute, for arbitration proceedings to be conducted at Chennai, which is at distance of 3000 kms from Yamuna Nagar. It shows that no consent for alleged arbitration agreement was ever obtained from complainants. They have prayed for dismissal of application.
8. Learned District Consumer Commission has accepted the application of OP No. 1 and dismissed the complaint, being not maintainable before Consumer Forum, vide its order dated 13.12.2018-impugned herein, in this appeal, by complainants.
9. Learned counsel for parties have been heard at length. On behalf of complainants, it is contended that learned District Consumer Commission has committed gross illegality to non-suit the complainants, solely on the reason that there was an arbitration award passed on 30.09.2014 against them, which bars the jurisdiction of District Consumer Commission. It is contended that complainants were totally unaware of any arbitration agreement, which, even if existed, is outcome of ‘fraud and misrepresentation’ exerted upon them by OP No.1. Complainants were consumer of OPs and their complaint, filed before District Consumer Commission certainly required adjudication by District Consumer Commission, within the parameters of Consumer Protection Act.
10. Per contra, learned counsel for OPs has supported the order dated 13.12.2018 passed by Learned District Consumer Commission by urging that: it is outcome of proper appreciation of all relevant facets of the case and same does not warrant any interference in this appeal.
11. Complaint was filed on 01.06.2016, before learned District Consumer Commission by complainants. Before filing of complaint; arbitrator had already adjudication upon geneses of dispute between parties and passed award dated 30.09.2014. To enforce this arbitral award dated 30.09.2014; OP/respondent No. 1-Financer has resorted to appropriate legal remedy by filing execution before competent Court. Contention on the part of appellants/complainants that: there was no arbitration agreement is bereft of credence in legal parlance. Admittedly, even as per positive stance of complainants; they obtained loan of Rs. 6,66,000/- from OP No. 1-financer. No financer, would finance this huge amount of Rs. 6,66,000/-, to any one, without securing their hands, qua its recovery and without getting executed any written loan agreement to that effect. It is specific stand of OP No. 1-financer that: for getting loan facility; agreement No. 472663 was executing by it with complainants. Complainants committed default in payment of EMI and not paid any installment after 30.11.2013 and there existed arbitration agreement. Complainants themselves handed over financed vehicle/Truck to OP No. 1 and this fact has been endorsed by OP No.2-insurer as well, in its reply. It is further apparent from pleadings that financed vehicle was sold by OP No. 1 with complainants’ consent, after obtaining its possession. There is no denial that amount of Rs.5,30,481.96/- is pending outstanding against complainants from 14.07.2014 and for which; execution petition was filed by OP No.1-financer. OP No. 1 has every legal right to proceed against complainants for recovering this amount with interest on the strength of Arbitral award dated 30.09.2014. Arbitrator has issued decree in favour of OP No. 1-financer to recover Rs.5,14,852/- with interest from complainants. Under relevant provision of law; execution has been filed by OP No. 1.
12. Pleas of ‘fraud and misrepresentation’ taken by complainants qua arbitration agreement and plea regarding alleged illegality of proceedings are/were the moot questions, to be decided only by executing Court, through objections, if at all same are/were filed at the behest of complainants under Section 34 of Arbitration Act. Despite pleading in the complaint that Arbitral Award is being challenged by filing petition under Section 34 of Arbitration and Reconciliation Act; learned counsel for appellants/complainants could not point out during arguments in this appeal, as to whether, in fact complainants have filed any objections against arbitral award dated 30.09.2014 or not, in the execution proceedings, so invoked by OP No. 1-financer and what was the fate of objections. Fact regarding OP No.1-financer having invoked arbitration proceedings, and obtained award dated 30.09.2014, has an important bearing on the controversy involved in this appeal. This circumstance would obviously ousts the jurisdiction of District Consumer Commission.
13. Legal position is no more res-intgra that: pleas regarding ‘fraud and misrepresentation’ are foreign to the jurisdiction of Consumer Protection Act. Complaints involving allegations regarding ‘cheating’, ‘fraud’ and ‘misrepresentation’ etc. cannot be entertained by Consumer Commissions. Likewise, allied question as to whether complainants were served with notice of arbitration proceedings or whether award passed by arbitrator is legally correct or not, or whether arbitration proceedings conducted at Chennai were without jurisdiction are foreign to the scope and ambit of Consumer Commissions. All such type of pleas/questions would fall within the jurisdiction of Civil Court.
14. In the wake of above subjective and critical discussion; this Commission does see any illegality or perversity in the well reasoned order dated 13.12.2018 passed by learned District Consumer Commission-Yamuna Nagar at Jagadhri. This order dated 13.12.2018 maintained, affirmed and upheld. Present appeal being devoid on merits is hereby dismissed.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 20th December, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
