ORDER BY HON’BLE PRESIDENT- MR. P.K. PADHI:

                                                                                            JUDGMENT

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;

            “Direct the opposite parties not to repossess the Truck bearing Regd. No.OD-05-AR-5059, supply a copy of the loan agreement and current account statement and to adjust the rate of interest as per the old agreement after deducting the penal interest and to receive the installment for the loan without adjusting the same in any other charges and to exonerate the complainant from any other unnecessary charges and not to misutilie the blank signed cheques of State Bank of India, Tikhiri branch and pay the compensation of Rs.3,60,000/-”.

            The brief fact of the case is that, the complainant being an educated and unemployed person due to financial stringency refinanced on EICHER PRO 6037 S CWC in the year 2018 being financed by opposite parties for his livelyhood and to maintenance of his family from the earning of the vehicle. The opposite party No.2 provide finance and sanctioned loan for Rs.27,55,000/- and interest charges Rs.18,18,751.96 and insurance Rs.1,90,000/- total agreement value Rs.47,63,751.96 which will be repaid in 99 EMIs. The opposite party No.2 & 3 had not supplied the loan agreement at the time of sanction of the loan and on asking the opposite party No.2 deferred the matter showing some reason and others. The complainant paid a substantial amount towards the loan, the opposite parties forcefully tried to repossess the said vehicle on 04.5.2022 without serving any notice regarding the outstanding with proper calculation and adjustment reached near the house of the complainant to repossess the vehicle where it has been parked for some mechanical trouble, but failed to do so as the vehicle could not be started and also threatened the complainant through their agents to repossess the vehicle any time with help of break down service without any settlement in spite of several request.

            Opposite parties appeared and filed their written version stating as under;

            The complainant is not a consumer and does not come under the purview of the definition of consumer. As per the Hon’ble Apex court judgment in “Laxmi engineering Works V. PSG Industrial Institute reported in 1995 AIR SC 1428, it has clearly been explained that “A person who purchase an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle of machinery, he (does not ceased to be a consumer). As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expression “used by him” and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words. In view of the above explanation mandated by the Hon’ble Apex court of the country it is clear that the complainant himself does not ply the alleged vehicle, rather has appointed driver for plying the same which necessarily excludes him from the purview of the definition of consumer and in extension from the purview of the Consumer Disputes Redressal Mechanism and as such he fails to proof that he himself was plying the vehicle. In view of the above award passed by the learned Arbitrator, the opposite parties are now raising preliminary objection that the above consumer complaint case filed by the complainant is not maintainable and this learned Commission lacked jurisdiction to adjudicate upon the instant consumer complaint case. In this regard, the law is well settled by the Hon’ble National consumer Disputes Redressal Commission, while rendering judgment in “The Installment Supply Ltd. Vs. Kangra Ex-Serviceman Transport Co. & another” in R.P. No.2363 of 2002 decided on 05.10.2006, reported in 2006(3) CPR 339 (NC), in which Hon’ble national commission has observed as follows;

            “Held: Award was passed before complaint was filed by Respondent No.1. It will thus govern the dispute between the parties. In view of the decision of the arbitrator, which is binding on parties, the fora below should not have passed an order by overlooking the award. Hence, this revision petition is allowed, orders passed by for a below set aside and complaint dismissed.”

            “A complaint cannot be decided by the consumer for a after an arbitration award is already passed”. So the instant consumer complaint case which has been filed after passing of arbitration award is not maintainable and liable to be dismissed at the threshold by this learned Commission.” The complainant did not adhere with the repayment term of the loan contract and has been making payments according to his own whims and fancies, as belatedly without paying the EMI amounts on the date specified in the repayment schedule. The complainant had willfully defaulted in paying his loan dues. Arbitration award has been passed as such the complainant is not entitled to keep the asset in his custody due to chronic default of loan dues. The complainant made a breach of contract by not adhering to the term and conditions as agreed upon said loan agreement as agreed and made delay by not repaying the installments on the due dates in each month. The complainant issued the cheques are bounced due to insufficient of funds in his account. So the petitioner is a regular defaulter. The complaint is not maintainable as the loan agreement contains the clause for Arbitration and Territorial Jurisdiction of the agreement is as follows:

            23.1-  All disputes, differences and/or claim arising out of or touching upon this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the arbitration and Conciliation Act, 1996, or any statutory amendments thereof and shall be referred to the sole Arbitration of an Arbitrator of an arbitrator nominated by the lender. The award given by such an Arbitrator shall be final and binding on all the parties to this agreement.

            23.3- The venue of arbitration proceedings shall be at Chennai and the language shall be in English.

            In view of the settled principle of law and the decision of Hon’ble Apex court cited above and in view of the award passed by the arbitrator and complainant having suppressed the said fact on 21.02.2020, we find no merit in this consumer complaint and accordingly the consumer complaint is dismissed.  No cost.