BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.19/2015.
Date of instt.: 02.02.2015.
Date of Decision: 12.05.2016.
Karnail Singh son of Karam Singh, resident of Village & P.O. Jaswanti, Tehsil and Distt. Kaithal.
……….Complainant.
Versus
Mahindra & Mahindra Finance Services Ltd., Dhand Road, Kaithal, through its Manager.
..……..Opposite Party.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Rajnish Kumar, Advocate for complainant.
Sh. Manoj Ichhpilani, Advocate for the opposite party.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he is the owner of vehicle bearing registration No.HR-64/6407. It is alleged that the complainant availed the facility of Hire Purchase Agreement/Hypothecation/Lease on 16.11.2011 from the Op at the time of purchasing the vehicle on the conditions to pay the price of the vehicle in the instalments of Rs.52,200/- monthly. It is further alleged that the complainant paid the entire amount as per Hire Purchase Agreement to the Op since 16.11.2011 but the Op had shown only 36 instalments of amounting to Rs.52,200/- per month in the account statement of complainant, whereas some of the instalments were not shown in the account of complainant. It is further alleged that the complainant also deposited Rs.52,200/- after 21.11.2014 but this amount has also not been entered in the account of complainant by the Op. It is further alleged that on 21.11.2014, the officials of the Op seized/snatched the vehicle No.HR-64/6407 of the complainant forcibly and illegally. It is further alleged that the complainant visited the office of Op many times and requested to return the vehicle to the complainant, but in vain. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that the present complaint is false and frivolous; that the complainant is not a “Consumer” as defined under the Consumer Protection Act, 1986; that an amount of Rs.20,65,000/- was advanced to the complainant vide duly executed loan agreement dt. 16.11.2011 and the complainant had to repay the loan amount alongwith interest in 52 EMIs of Rs.52,200/-. But the complainant failed to repay the aforesaid EMI in time. He was irregular in payment. Therefore, the Op terminated the contract and called upon the complainant to pay a sum of Rs.11,85,055/- being the total dues payable as per contract immediately vide recall notice dt. 28.07.2014. It is further stated that the Op made many oral requests to the complainant to make the payment but he failed to do so. Hence, in the month of November, 2014, the complainant showed his incapacity to pay the loan amount and voluntarily surrendered the vehicle in question to the Op. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A & Ex.CW1/B and documents Mark-A to Mark-E and closed evidence on 26.11.2015. On the other hand, the Ops tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to R4 and Mark RA to Mark RD and closed evidence on 15.02.2016.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. Ld. Counsel for the complainant argued that the complainant was the owner of the vehicle bearing registration No.HR-64/6407 and the complainant availed the hire purchase agreement/hypothecation/lease on 16.11.2011 from the Op at the time of purchasing the vehicle. He further argued that the complainant had been paying the entire amount as per hire purchase agreement but the Op has shown only 36 instalments in his account. He further argued that on 21.11.2014, the officials of Op snatched the vehicle in question forcibly and illegally on the ground that the complainant has not deposited the due instalments. He further argued that the complainant has deposited Rs.52,200/- after 21.11.2014 but the same has not been entered in the account of complainant by the Op. On the other hand, ld. Counsel for the Op argued that the complainant is not a consumer as the truck was used for commercial purposes. He further argued that an amount of Rs.20,65,000/- was advanced to the complainant vide agreement dt. 16.11.2011, Mark-RA and the same had to be repaid in 52 E.M.I. of Rs.52,200/- each but the complainant has failed to repay the aforesaid E.M.I. in time. He further argued that the vehicle in question has been sold by the Op and the Op has issued notice Ex.R3 to the complainant before the sale. He further argued that the valuation of the vehicle in question was got assessed through Autoinspekt, who assessed the value at Rs.6,59,000/- vide document Mark-RC. He further argued that the vehicle in question was sold for Rs.11,00,000/- and the said amount of Rs.11,00,000/- has been deposited on 24.12.2014 in loan account of complainant and this fact is clear from the document Ex.R4, the statement of account (loan) of the complainant. He further argued that the complainant had voluntarily surrendered the vehicle in question and this fact is clear from the document Mark-RD. He further argued that Sh. Sanjay Aggarwal (Advocate), Mumbai was appointed as sole arbitrator in the matter and the arbitrator has passed the award on 24.12.2011, the copy of same is Mark-RB and made request for dismissal of complaint.
6. From the pleadings and evidence of the parties, it is clear that Sh. Sanjay Aggarwal, Adv. was appointed as sole arbitrator and he passed the award in the matter on 24.11.2014, copy of the same is placed on file by the Op as Mark-RB. When the arbitration award has been passed, the complainant has the remedy to challenge the same in accordance with the provisions of the Arbitration Conciliation Act only. In this regard, we rely upon the authority titled as Shyamlal Patel Vs. Manager, HDFC Ergo General Insurance Company Ltd. & others, 2015(4) CLT page 422 (MP), wherein it has been held that Arbitration-held-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 maintianable. Hence, the present complaint is not maintainable before this Forum.
7. Even otherwise also, the complainant had taken the vehicle No.HR-64/6407 on hire purchase agreement Mark-RA dt. 16.11.2011. From Mark-RB, it is also clear that the complainant himself has surrendered the said vehicle to the Op. The Op has served a notice Ex.R3 to the complainant before the sale of vehicle (TATA-LPT-3118) bearing registration No.HR-64/6407. The Op has got the value assessed from Autoinspekt (IBB India Blue Book) vide Mark-RC at Rs.5,59,000/-. The vehicle was sold for sum of Rs.11,00,000/- i.e. much more than the value assessed. From Ex.R4, the statement of account of the complainant regarding loan, of the truck in question, it is clear that the said amount of Rs.11,00,000/- has been got adjusted on 24.12.2014 in the loan account of complainant. In these circumstances, we found that the complainant has failed to prove any deficiency on the part of Op.
7. Thus, as a sequel of above discussion, we find no merit in the present complaint and we hereby dismiss the same. No order as to costs. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.12.05.2016.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
