APPEARED AT THE TIME OF ARGUMENTS

In RP/1126/2010

In RP/3296/2010

PRONOUNCED ON:  13^th   DECEMBER  2017

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          These revision petitions have been filed under section 21(b) of the Consumer Protection Act, 1986, challenging the legality and correctness of the order dated 16.12.2009, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as “the State Commission”) in First Appeal no. 11/2009, Simarjit Singh vs. IndusInd Bank Ltd., vide which, while allowing the appeal, the order dated 04.12.2008, passed by the District Consumer Disputes Redressal Forum, Sangrur, Punjab in  Consumer Complaint No. 344 filed on 28.07.2008 by the complainant Simarjit Singh, dismissing the said complaint, was set aside and the consumer complaint was allowed.

2.      The facts of the case are that as per the version given in the consumer complaint no. 344 filed on 28.07.2008 by Simarjit Singh, he purchased a Ashok Leyland 4018 Tuskar Turbo Tractor 130WB, bearing registration no. PB13Q 8731 in July, 2006 from the dealer, Sidh Motors Pvt. Ltd., Ludhiana for a consideration of Rs. 13,50,000/- after raising finance from the opposite party (OP) IndusInd Bank Ltd.  According to the complainant, he defaulted in the repayment of three instalments of the loan amount, but after receipt of notice dated 12.03.2008 from the OP Bank, he paid an amount of Rs. 1,75,350/- to the Bank on various dates i.e. on 24.03.2008, 06.05.2008 and 31.05.2008.  As per the complainant, the total amount payable to the Bank by June, 2008 was Rs. 8,08,800/-, against which he had paid an amount of Rs. 8,19,380/- to the OP Bank, meaning thereby that the amount paid by him was more than the amount payable by that time. 

3.      It has been alleged in the consumer complaint that when the said vehicle loaded with timber, costing about Rs. 20 lakhs, was being driven from Gandhi Dham (Gujarat) to Srinagar (J&K), it had to stay at village Bhasaur, District Sangrur, Punjab (to which the complainant belongs) due to the strike of the truck-owners on 03.07.2008.  The vehicle started its journey to Srinagar on 04.07.2008; however some 10 to 12 persons belonging to the OP Bank took forcible possession of the vehicle alongwith timber, due to which, the consignment could not be delivered to the customer to Srinagar, causing financial loss to the complainant.  The OP Bank sent letter dated 09.07.2008 to the complainant, demanding certain amount from them.  Despite making personal visits to the office of the opposite party, the matter was not settled and the vehicle was not released.  The complainant filed the consumer complaint in question, seeking release of the vehicle and for giving them back the timber laden on the vehicle, to return all their documents and to give a sum of Rs. 4 lakhs as compensation for financial loss caused to the complainant and compensation of Rs. 5 lakhs towards mental agony, besides Rs. 11,000/- as litigation expenses.

4.      The complaint was resisted by the OP Bank by filing a written statement before the District Forum, Sangrur, in which they stated that the District forum, Sangrur had no jurisdiction to entertain the consumer complaint in question, because the OP Bank had no branch office in district Sangrur and no cause of action had accrued within district Sangrur.  The loan had been sanctioned at Ludhiana and the vehicle was surrendered by the complainant at Ludhiana.  The OP Bank also stated that the matter could be heard by a Civil Court of competent jurisdiction only, as there were so many complicated questions of facts and law.  Moreover, as per clause 23 of the loan agreement, the matter should be referred to the Arbitrator for adjudication.  The OP Bank further stated that the complainant had become defaulter in payment of instalments due in October 2007, November 2007 and February 2008.  A registered notice dated 12.03.2008 was issued to the complainant to pay the instalments as per the loan agreement.  At that time, a sum of Rs. 1,39,335/- was due against the complainant.  The OP Bank denied having taken forcible possession of the said vehicle on 04.07.2008 as alleged.  In fact, the complainant had taken another loan for Rs. 8.77 lakhs from the Bank against account no. JL004701H and the complainant had defaulted in the repayment of that loan.  The complainant surrendered the vehicle to the OP Bank on his own on 05.07.2008 and also executed a letter of surrender dated 07.07.2008.  Even then the OP Bank, as a goodwill gesture, sent a letter dated 09.07.2008 to the complainant to deposit the outstanding amount against him and to get the vehicle back.  The OP Bank stated that the complainant had issued a cheque to discharge his liability for account no. JL004701H, but the said cheque bounced due to insufficient funds.  A complaint under section 138 of the Negotiable Instruments Act, read with section 420 of the IPC had been filed against the complainant in the court of Judicial Magistrate, Ludhiana.  The present consumer complaint had been filed as a counter to the action taken by the OPs.  The OP Bank further stated that at the time of surrender, the vehicle was loaded with timber, but the said stock was taken away by Balwant Singh, a representative of the complainant, who got it loaded in some other vehicle with the consent of the complainant.  There was no deficiency of service on their part therefore, and the consumer complaint deserved to be dismissed.

5.      After taking into account the averments of the parties, the District Forum dismissed the complaint vide their order dated 04.12.2008, stating in their order that the said Forum had no territorial jurisdiction to entertain the complaint, as no cause of action had arisen within their jurisdiction and moreover, the opposite parties did not have any branch office etc. in district Sangrur.  The complaint was also not maintainable before the District Forum as they had no pecuniary jurisdiction to entertain the same.  The complainant had demanded that the vehicle was loaded with timber stock worth Rs. 20 lakhs, for which he sought relief from the OP Bank as well as relief on account of loss of business and mental agony etc.  The total relief being demanded was more than Rs. 20 lakhs and hence, the case did not lie within the pecuniary jurisdiction of the District Forum.  The District Forum also observed that the complainant himself surrendered the vehicle to the OP Bank as indicated from the documents before them and hence, the complaint was not maintainable.  Being aggrieved against the order of the District Forum, the complainant challenged the same by way of appeal before the State Commission, which was allowed vide impugned order dated 16.12.2009.  The said Commission directed through their order that after deducting 20% of the price of the vehicle as depreciation, the balance amount of Rs. 10.80 lakhs should be awarded to the complainant.  In addition, a sum of Rs. 5 lakhs should be given as compensation for mental harassment and another sum of Rs. 4 lakhs should be given for loss of business.  In this way, the State Commission allowed the appeal and consequently, the directions sought by the complainant in his consumer complaint were fully granted.  Being aggrieved against the order of the State Commission, both the parties have filed the present cross revision petitions before this Commission. 

6.      During hearing before us, the learned counsel for the OP Bank argued that the order passed by the State Commission was adverse in the eyes of law as the said Commission had not touched upon the issue of territorial and pecuniary jurisdiction, based on which, the District Forum had rejected the consumer complaint.  In fact, the consumer complaint filed before the District Forum, Sangrur should have been ordered to be dismissed and liberty given for filing a fresh complaint, but the same was not done.  The State Commission had also not communicated whether the version of the OP that timber was got off-loaded from the vehicle in question by a representative of the complainant, was true or not.  The learned counsel has filed copies of the loan agreement dated 22.07.2006 between the parties and copies of surrender letter dated 07.07.2008 and the letter dated 09.07.2008 sent by the OP Bank to the complainant.  As per the surrender letter, the vehicle had been surrendered by the complainant on 05.07.2008 and the possession taken by the OP Bank.  The OP Bank sent a letter dated 09.07.2008 to the complainant, asking him to pay a sum of Rs. 1,16,504/- before 22.07.2008 and get the vehicle released.  According to the learned counsel, there was no deficiency in service on the part of the Bank and hence, the order passed by the State Commission should be set aside and the consumer complaint dismissed.

7.      The complainant, who was present in person, stated that he never signed any surrender letter as being claimed by the OP Bank.  The OP Bank had built up their case on forged documents.  The complainant stated that the order passed by the State Commission was in accordance with law and should be upheld.  The complainant has further drawn attention to an order dated 17.03.2017, passed in Arbitration case no. 9/2012 between the parties by the Court of Additional District Judge, Sangrur, according to which, the award of Arbitration given by the Arbitrator in favour of the Bank had been set aside on an application made by the complainant before the Court.  The Additional District Judge observed that keeping in view the order dated 16.12.2009, passed by the State commission in favour of the complainant, the ex-parte award passed by the Arbitrator was not sustainable.  The learned counsel for the OP Bank replied that the order passed by the Additional District Judge, Sangrur had no bearing on the outcome of the present case.  The learned counsel further stated that they had already sold the vehicle in question after giving due notice to the complainant and hence, there was no question of return of the vehicle to him.

8.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9.      The District Forum, Sangrur dismissed the consumer complaint filed by the complainant on the ground that the complaint was not maintainable before them for lack of territorial jurisdiction as well as the pecuniary jurisdiction.  The District Forum also upheld the version of the OP Bank that the complainant had himself surrendered the vehicle in question as evidenced from the documents on record.  However, on the other hand, the order passed by the State Commission is based on the assertion that the letter of surrender dated 07.07.2008 was a false and fabricated document.  In fact, the OP Bank had taken forcible possession of the vehicle in question, although there was no valid ground to take possession of the same, keeping in view the fact that the payment of instalments in default had already been made by the complainant.  The State Commission observed that since the complainant had paid an amount of Rs. 1,75,350/- to the Bank in response  to their notice  dated 12.03.2008, the complainant  could have  very well paid the next outstanding instalment of Rs. 31,354/-.  Moreover, there was no question of surrendering the vehicle, as it was loaded with timber as admitted by the OP Bank itself.

10.    The first point that merits consideration in these revision petitions is that the District Forum had dismissed the consumer complaint in question on the ground that the said Forum had no territorial or pecuniary jurisdiction to entertain the consumer complaint.  It was, therefore, the duty of the State Commission to have gone into the issue of jurisdiction before coming to their conclusion.  In case, the State Commission felt that the consumer complaint was not within the jurisdiction of the District Forum, the only alternative available to them was to dismiss the complaint with liberty to the complainant to file another complaint before the consumer fora of competent jurisdiction.  The failure of the State Commission to touch upon this important issue leads to the conclusion that the order passed by the State Commission was perverse in the eyes of law.

11.    The next important point for consideration in the matter is that the vehicle has since been sold by the OP Bank and the sale proceeds realised by them.  The State Commission observed in their order that the vehicle was sold by the OP Bank on 31.03.2000, but they had not given any details about the sale proceeds of the truck.  It was incumbent upon the State Commission to have asked the OP Bank to give them complete information about the amount realised from the sale of the vehicle and then to determine whether any amount was outstanding against the complainants, or the Bank was required to pay certain amount to them after the sale of the vehicle.  The issue of imposing any penalty etc. on the OP Bank for their alleged act of omission or commission could have been decided separately, but the State Commission before pronouncing their order, should have taken into account the sale proceeds realised from the disposal of the vehicle.  The direction to give the value of the vehicle minus 20% depreciation does not have any reasonable basis therefore.  Moreover, the State Commission has allowed a compensation of Rs. 4 lakhs to the complainant for loss of business and Rs. 5 lakhs for mental agony etc., the amounts which were demanded by the complainant in his consumer complaint.  The State Commission should have indicated a firm basis for arriving at the figures of providing compensation to the complainant, rather than depending only on the demands raised by the complainant.

12.    The Arbitration proceedings have also been conducted between the parties by an Arbitrator.  It is indicated by an order passed by the Additional District Judge, Sangrur on 17.03.2017 that the award of the Arbitrator was in favour of the Bank, but the said award was set aside as per the order of the Additional District Judge on the ground that the State Commission had already decided the matter.  The effect of the Arbitration proceedings on the present case also requires to be gone into by the State Commission before passing the final order in the case.  

13.    The State Commission have passed the impugned order on the presumption that the letter of surrender supposed to have been executed by the complainant was a false document.  The State Commission have stated that they based their conclusion on the evidence on record.  However, the best evidence could be a comparison of signatures of the complainant on the surrender document with his standard signatures.  A perusal of the order of the State Commission reveals that they never made any effort in that direction.  The State Commission could very well have asked the parties to get the report of a hand-writing expert, which could have thrown light on the fact whether the writing of the complainant Simarjit Singh on the documents produced, was correct or not.

14.    Based on the discussion above, it is evident that the order passed by the State Commission is not based on a proper appreciation of the facts and circumstances on record, rather many important aspects of the case as noted in the preceding paragraphs, have not been gone into by them.  The order passed by the State Commission is, therefore, set aside, being perverse in the eyes of law.  The matter is remanded back to the State Commission for taking a fresh decision in the matter, after calling the parties again and giving them an opportunity of hearing and submitting any further evidence, if any.  The State Commission should give due consideration to all the points involved in the dispute and then pass a fresh order, keeping in view the facts and circumstances of the case.