Madhya Pradesh

StateCommission

A/15/812

SHYAMLAL PATEL - Complainant(s)

Versus

HDFC EGRO GIC - Opp.Party(s)

07 Oct 2015

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 812 OF 2015

(Arising out of order dated 11.05.2015 passed in C.C.No. 151/2013 by District Forum, Rewa)

 

SHYAMLAL PATEL,

S/O SHRI VANSHMATI PATEL,

R/O POST DHERA, WARD NO.1, TEHSIL-MAUGUNJ,

REWA (M.P.)                                                                                       … APPELLANT.

 

Versus

 

1. MANAGER, HDFC ERGO GENERAL

    INSURANCE COMPANY LIMITED,

    MUMBAI, MAHARASHTRA.

 

2. MANAGER, HDFC ERGO GENERAL

    INSURANCE COMPANY LIMITED,

    BRANCH-JABALPUR (M.P.).

 

3. MANAGER, TATA MOTORS FINANCE LTD,

    CHORHATA, NEAR BY-PASS. REWA (M.P.)

 

4. MANAGER, TATA MOTORS FINANCE LTD.

    1, THINK TECHNO CAMPUS BUILDING,

    A-SECOND FLOOR OFFICE, POKHRAN ROAD TWO,

    THANE, WEST MUMBAI, MAHARASHTRA.

 

5. MANAGER, TATA MOTORS FINANCE LTD,

    DGP HOUSE, FOURTH FLOOR,

    OLD PRABHADEVI ROAD,

    MUMBAI, MAHARASHTRA.

 

6. MANAGER, HDFC PVT.LTD.

    DM 205,206 SECOND FLOOR, PALASIA ROAD,

    JANGIR CHOURAHA,

    INDORE (M.P.)                                                                              …RESPONDENTS.

 

BEFORE :

            HON’BLE SHRI JUSTICE RAKESH SAKSENA    :     PRESIDENT

            HON’BLE SMT. NEERJA SINGH                             :       MEMBER

            HON’BLE SHRI SUBHASH JAIN                              :      MEMBER

                     

COUNSEL FOR PARTIES :

 

                Shri S. P. Tiwari, learned counsel for the appellant.                                                        

                                                 

 

 

 

-2-   

O R D E R

                                        (Passed on  07.10.2015)

                   The following order of the Commission was delivered by Shri Subhash Jain, Member:

           

                   This appeal is filed by the complainant being aggrieved by the order dated 11.05.2015 passed by the District Consumer Disputes Redressal Forum, Rewa in C.C.No.151/2013.

2.                The facts of the case as per complainant in brief are that the complainant/appellant after availing finance from Tata Motors Finance Ltd, Branch-Rewa purchased a truck for which he deposited margin money in the sum of Rs.1,05,000/- and sum of Rs. 14,80,000/- was financed. Thereafter he spent a sum of Rs. 2,50,000/- in building the body of the truck and he deposited Rs.1,91,144 in four instalments. On 03.01.2012 his truck was stolen of which report was lodged at Police Station Karamlas, Nagpur and the insurance company was also informed but the insurance did not settle the claim, he therefore filed a complaint alleging deficiency in service on the part of the opposite parties/respondents claiming Rs.16,62,500/- towards insurance and Rs.50,000/- as other expenses total Rs.18,16,500/-.

3.                The respondents insurance company resisted the complaint stating that after deducting a sum of Rs.1500/- under excess clause from the IDV of the vehicle Rs.16,62,500/-, balance amount of Rs.16,61,000/- has already been paid to the financer Tata Finance Company Limited on 24.01.2013. It was further submitted that if the appellant has already paid any amount in instalments to finance company, then he is entitled to get back the same from the financer. The compliant therefore against the insurance company is not tenable.

-3-

4.                The respondent no.4 Tata Motors Finance Ltd. resisted the complaint stating that the appellant had deposited only Rs.79,535/- instead of Rs.1,05,000/- as alleged towards margin money.  The fact regarding payment of Rs.2,50,000/- towards body building was denied.  It was admitted that the appellant had deposited a sum of Rs.1,91,144/- in instalments and except this he has not paid any other amount. The appellant was given financial help of Rs. 14,80,000/- of which finance charge was Rs.5,22,144/-, thus the appellant has to pay Rs.21,07,144/- in 44 monthly instalments on 15^th day of every month. Appellant failed to pay the instalments regularly and became defaulter, therefore the Arbitrator was appointed who passed an award on 16.07.2013 in which the finance company was found to be entitled to recover an amount of Rs.10,26,413/- along with 18% interest from 18.04.2013, from the appellant.

5.                The District Forum after hearing counsel for parties and considering evidentiary material on record found that the insurance company has already paid an amount of Rs.16,61,000/- to the financer on 24.01.2013 and since an arbitration award has also been passed in the matter dismissed the complaint as not maintainable.  Against which the appellant has preferred this appeal. 

6.                Learned counsel for appellant argued that the District Forum erred in dismissing the complaint as the appellant is a consumer and he is entitled to get relief from the Consumer Forum as the respondents committed deficiency in service.

7.                After hearing learned counsel for the appellant and on going through the record we find that it is not disputed that the appellant purchased

-4-

a truck after getting financial assistance from the financer Tata Motors Finance Ltd and got the same insured with the HDFC Ergo General Insurance Company Ltd.  The insurance company has also paid a sum of Rs.16,61,000/- to the financer on 24.01.2013.  From the record we find that in the present matter two awards have been passed by two different Arbitrators first by Shri Nitin Chhadha on 16.07.2013 and the second by Shri P.C.Phalgun on 20.08.2013.  

8.                The Hon’ble Supreme Court in M/S National Seeds Corporation Ltd. Vs M. Madhusudan Reddy I (2012) CPJ 1 (SC) has held that “The remedy of arbitration is not the only remedy available to a grower.  Rather, it is an optional remedy.  He can either seek reference to an Arbitrator or file a complaint under the Consumer Act.  It the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996.  Moreover, the plain language of Section 3 of Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”

9.                Looking to the law discussed by the Hon’ble Supreme Court in National Seeds case, it appears that remedy of the arbitration is not only the remedy available to parties.  It is optional remedy.  Either party can seek reference to arbitration or to file a complaint under the Consumer Protection Act, 1986.  If one of the parties opts for the remedy of arbitration, then it

-5-

may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act, 1986.  If he chooses for arbitration proceedings in the first instance, then he cannot file a complaint before the Consumer Forum.   

10.              In view of the facts and circumstances of the case we are of the view that once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the complaint before the District Forum, under the Consumer Protection Act, 1986 is not maintainable.

11.              In view of the aforesaid discussions, we find that the order of the District Forum is just and proper.  We do not find any infirmity or illegality in the order passed by the District Forum.  The appeal filed by the appellant being devoid of merit is dismissed at the admission stage.