Consumer Complaint No. 252 of 2015

Date of filing: 23.12.2015                                                                   Date of disposal:  13.07.2017

Complainant:               Ravinder Kaur, R/o. 2, Bahir Sarbamangala Para, P.O., P.S. & Dist.-Burdwan, Pin-713101.

-V E R S U S-

Opposite Party No.1:  The Chief Manager, L & T Finance Ltd., L & T House, Ballard Estate, Mumbai.

                              2. The Branch Manager, L & T Finance Ltd., Rashbihari Bose Road, Beside Bengal Engineering College, Bidhannagar, Durgapur-713212.

Present:       Hon’ble Member:  Sri Pankaj Kumar Sinha.

                      Hon’ble Member: Smt. Silpi Majumder.

Appeared for the Complainant:         Ld. Advocate, Deb Krishna Sinha.

Appeared for the Opposite Parties:  Ld. Advocate, Arindam Mukherjee.

J U D G E M E N T

This complaint is filed by the complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not provide her NOC in respect of two vehicles inspite of making payment of the entire loan amount along with interest.

The brief fact of the case of the Complainant is that she purchased two trucks of Tata make for her livelihood in the month May, 2011 financed by the OPs. She availed of loan from the OP-2 amounting to Rs. 18,00,000=00 and Rs. 14,50,000=00 in respect of two agreements and EMI was fixed for Rs. 49,000=00 & Rs. 39,480=00, which were scheduled to start in the month July, 2011 and the entire loan amount along with interest should be completed within April, 2015. The Complainant had to pay a sum of Rs. 49,000/- X46=Rs.22, 54,000=00 and Rs. 39,480/-X45=Rs.18, 16,080=00 within April, 2015. The Complainant has paid Rs. 22, 56,650=00 and Rs. 18, 18,980=00 till 04.05.2015. Though her husband is bed ridden due to cancer, she tried her level best to make payment of the due installments within due period. After completion of entire loan amount along with interest the Complainant demanded NOC regarding two vehicles for getting ownership of the same.  But the Complainant was refused out rightly by the OP-2 and on the contrary the OP-2 claimed an amount of Rs. 2, 29,000=00 from her towards overdue charges, which is whimsical and arbitrary. The Complainant being  in need of money for treatment of her husband made up her mind to sell out the vehicles after obtaining NOC and accordingly by a letter dated 08.09.2015 she offered to pay Rs. 1,00,00=00 for the both vehicles towards overdue charges for getting the NOC. The OPs did not respond to the letter. When she visited the office of the OP-2, the OP-2 started to create mental pressure upon her and the Complainant being a lady was humiliated and ultimately driven out from the office by the OP-2. The Complainant failed to understand that though she cleared the entire dues how she was penalized by the OP-2. Due to wrong attitude of the OP-2 the Complainant had to run from pillar to post for getting the NOC but the OP-1 failed to comply with the same and turned down her earnest request. The Complainant and her husband were in distress and they have failed to understand Pas to why after clearance of the entire dues she is not getting the NOC. As the OPs have provided service to her, hence she is a consumer of the OPs and this case is related with consumer dispute. Due to non-providing of the NOC by the PPs, the same can be termed as deficiency in service and apart from that the OPs claimed a sum of Rs. 2,29,000=00 as late payment penalty for both the loans, which is out and out baseless and illegal. Although the entire loan amount has been paid hence such attitude of the OPs is also an example of unfair trade practice. As her grievance have not been redressed by the OPs before coming to this ld. Forum, hence having no alternative this complaint is filed praying for direction upon the OPs to issue NOC in respect of the two trucks being No. WB41F/1515 & WB41F/1400, restrained the OPs not to disturb in the smooth plying of the said trucks, to pay compensation to the tune of Rs. 1,00,000=00  towards mental pain and agony and harassment and litigation cost of Rs. 20,000=00 to her.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that this complaint is not maintainable before this Ld. Forum in view of the Arbitration Clause, which is specifically mentioned in the agreement, in which  both parties have entered.  Therefore any disputes and differences between the parties would be resolved through arbitration proceeding for which the Complainant has no locus standi to file this complaint before this Ld. Forum.   It is further submitted by the OPs that the Complainant had miserably failed to pay due installments within due time for which as per the terms and the conditions of the agreement delay payment charges and other charges were imposed on the amount of the installments.  As the Complainant did not pay the same, NOC could not be issued.  The Complainant with a view to avoid of making payment of the balance amount as claimed by these OPs as per the terms and conditions of the agreement, filed this complaint with ulterior motive to grab some money through an illegal manner.  According to the OPs they are entitled legally to get delay payment charges and other charges as per agreement from the Complainant.  As there is no deficiency in service as well unfair trade practice on behalf of the OPs the Complainant is not entitled to get any relief as sought for.

            Both parties have filed several papers and documents in support of their respective contentions relating to the loan account and concerned vehicles.  We have carefully perused the records; documents filed by the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. 

            It is seen by us that admittedly the Complainant purchased two trucks in e month of May, 2011 by obtaining financial assistance from the OP-2.  She availed of loan from the OP-2 amounting to Rs.18, 00,000=00 and Rs.14, 50,000=00 for purchasing above-mentioned vehicles.  The EMI was fixed for Rs.49, 000=00 and Rs.39, 480=00, which were scheduled to start from the month of July, 2011 and entire loan amount should be repaid by the Complainant within April, 2015.  The allegation of the Complainant is that though she repaid entire loan amount along with the agreed interest to the OP-2, but the OP-2 did not provide her NOC in respect of the abovementioned vehicles. It is further submitted by the Complainant that she purchased the vehicles for earning her livelihood.  From the complaint it is evident that due to illness of her husband she is inclined to sell out the abovementioned vehicles with a view to incur medical expenditure for her husband, but as the OP-2 did not provide her the NOC, which she is very much entitled to get, this complaint is filed praying for some reliefs.  The rebuttal of the OPs is that this complaint is not maintainable due to existence of Arbitration Clause in the agreement in which both parties have entered.  Further contention of the OPs is that as per the terms and conditions of the Complainant is under obligation to pay delay payment charge and other charges, if any, as per the agreement in case of failure to make payment of the due installments within due time. As the case in hand the Complainant had failed to pay installments within due time, according to the OPs the Complainant is under obligation to pay the above-mentioned charges to the OPs, otherwise the Complainant is not entitled to get NOC in respect of the two vehicles.  According to the OPs as there is no deficiency in service on their part, the Complainant is not entitled to get any relief as prayed for.

At the very outset we are to adjudicate as to whether this complaint is maintainable or not before this Ld. Forum as the OPs have taken a plea in their written version that due to existence of the Arbitration Clause in the loan agreement, this Forum has no authority to try with this complaint and in case of any difference and dispute, the Complainant should approach before the ld. Arbitrator to resolve the same. In this respect we are to mention that in Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 SCC 294) the Hon’ble Supreme Court has observed in the context Arbitration Act, 1940 as under:-

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal agency, constituted under the Consumer Protection act, since the remedy provided under the act is in addition to the provisions of any other law for the time being in force.”

In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-

66. “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. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file 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 the 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.”

Very recently the Hon’ble National Commission has passed one judgment on 13.05.2013 in the Revision Petition no-412/2011 in a case of DLF Limited vs. Mridul Estate Private Limited, based on the abovementioned judgment, wherein it has been held that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the arbitrator in view of the arbitration clause mentioned in any document of the OP. In the said judgment it has been further mentioned that complaint filed by a consumer before the Consumer Fora would be maintainable despite there being arbitration clause in the agreement to refer the dispute to the Arbitrator. Remedy provided under the C.P. Act is a special remedy with objective of redressal of grievances of affected consumers in an expeditious and non-expensive manner. If small consumers are relegated to Alternative Dispute Resolution mechanism of arbitration, remedy provided under the C.P. Act would become illusionary.

            In view of the abovementioned judgments of the Hon’ble Supreme Court as well as the Hon’ble National Commission we are of the view that in the case in hand though there exits an Arbitration Clause in the terms and the conditions of the loan agreement, this case is very well maintainable before the Consumer Forum in view of the Section-3 of the Consumer Protection Act, 1986.

During hearing argument the Ld. Counsel for the OPs has submitted that as the Complainant purchased two trucks, that should not be for the purpose of earning her livelihood.  Moreover the Ld. Counsel for the OPs has also submitted that the Complainant used the vehicles as transport vehicles which will be evident from the agreement wherein both parties put their signatures.  According to the Ld. Counsel for the OPs within the four corners of the complaint nowhere it is mentioned that who are used to drive those vehicles.  In connection with such submission of the OPs we have carefully perused the documents filed by the parties. It is seen by us that the vehicles were purchased in the name of the Complainant and financial assistance was also taken by her for purchasing the same.  At the time of taking loan from the OPs the Complainant entered into an agreement wherein it is mentioned under the column of ‘Industry Type’, it is written as ‘transportation’ and in the column of ‘occupation’, it is written ‘transport’.  Therefore, the details of borrower dated 31.03.2011 shows that the Complainant purchased those vehicles for commercial purpose and the same was used by her as transport vehicles.   As the Complainant used the vehicles for her business purpose hence, this complaint cannot be maintainable before this Ld. Forum in view of Section 2 (1)(d) (ii) of the Consumer Protection Act, 1986,  wherein it is enumerated that ‘consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not includes a person who availed of such services for any commercial purpose’.

            For the purposes of this clause ‘commercial purpose does not includes used by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment’.

            The Hon’ble Supreme Court in Laxmi Engineering case (supra) has been pleased to hold that where a vehicle is purchased by a woman/widow then she is entitled to entrust a driver for driving the said vehicle. In the instant case obviously the Complainant being a woman had purchased two vehicles.  In the Landmark Judgment ‘Laxmi Engineering’ (supra), no where it is mentioned that a woman/widow is entitled to purchase two vehicles for earning her livelihood.  As in the instant complaint admittedly the Complainant purchased two vehicles, the same cannot be treated that the purchase was made for earning her livelihood.  It is also clear to us that obviously, she entrusted two persons to drive those vehicles, which cannot be permissible in the eye of law to be a consumer within the purview of C.P. Act, but certainly she can be a commercial consumer.  Any goods or services hired or purchased by any person for commercial purpose cannot come within the ambit of the definition of ‘consumer’ as enumerated in the C.P. Act, 1986.  Moreover, the detail of borrower shows that for transportation purposes the vehicles was purchased by her.  Hence, she cannot be a consumer and for this reason this complaint does not stand at all.

Going by the foregoing discussion, hence it is

O r d e r e d

 that the Consumer Complaint being No. 252/2015 is dismissed on contest. However, considering the facts and circumstances of the case there is no order as to cost.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.

    Dictated and corrected by me.      

                  (Silpi Majumder)

                         Member

                 DCDRF, Burdwan

                                                      (Pankaj Kumar Sinha)                        (Silpi Majumder)

                                                               Member                                        Member   

                                                          DCDRF, Burdwan                          DCDRF, Burdwan