SRI BIJOY KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal imposition of penal interest and threatening to reposses the vehicle are the allegations arrayed against OPs.
2. Complaint in nutshell reveals that, Complainant for his self-employment and to maintain his family purchased a TATA ACE vehicle from Op-3 being financed by TATA MOTORs by executing an agreement No. 5001189832 dtd. 11/03/2013 bearing Regd.No. OD-29-9560 on availing a finance to the tune of Rs.3,36,000/-. Complainant in order to avail the finance deposited Rs. 31,925/- as down payment and also paid other fees for availing extended warranty etc. It is alleged that after purchase Ops did not provide after sale service for which Complainant suffered a huge financial loss and became a defaulter inspite of that Complainant paid 7 EMI amounting of Rs. 81,270/-. It is also alleged that at the time of documentation, Complainant handed over 11 nos. of cheque of Oriental Bank of Commerce to Op-1 to collect the EMI’s, but Ops did not encash the same. Complainant on perusal of statement of loan account found that, there was wrong calculation, and imposition of illegal and arbitrary charges on the Complainant, Complainant approached Op No. 1 to 3 to revise and recalculate the outstanding dues, but Ops paid a deafear to all the requests of the Complainant. It is further alleged that on dt. 8/2/2016 Ops through M/S O.A.Das and Associates sent a Notice to Complainant demanding to pay Rs. 6,40,375.48/- and also called to attend to Mr. N.C. Joseph, Advocate, Mumbai on dt. 17/03/2016 in connection to Arbitration proceeding No. TMFSL/3131 of 2016, which is initiated against the Complainant. Complainant takes the further plea that, Complainant is not in a financial and physical condition to attend the arbitrator and if Ops repossesed the vehicle of the Complainant, he will sustain heavy financial loss. The acts of the Ops according to Complainant is illegal, arbitrary and termed as deficiency in service. The cause of action of the instant case arose on dt. 20/03/2016 when the Complainant received the arbitrator ‘Notice’ which within local limits of this Forum. Complainant preys this Forum seeking a direction to Op No. 1to 3 to waive out the excess interest and other illegal charges imposed upon the Complainant and to calculate and to revise the statement of loan account, with a further direction to Op No. 1 to 3 not o seize the finance vehicle from the custody of the Complainant, accordingly Op No.4 be directed to provide free service and repairing and the Ops may be directed to pay Rs. 25,000/- as compensation for mental agony and deficiency in service.
3. Though Notice was served to TATAMOTORS Finance Ltd.(OP No. 1 to 3) by Regd. Post with A.D., but Op No. 1 to 3 did not prefer to appear into the dispute, hence set ex-parte by this Forum vide order No.19 dtd. 18.07.2017. M/S Trupti Automobiles(Op-4) appeared into the case through their Authorized representative, Mr. Kajal Kumar Chand and filed written statement, denying the allegations of the Complainant. Op-4 in their written statement by parawise reply countered the allegations and states that there is no allegation against Op-4, and all the allegations as per complaint is aimed at TATA MOTORS Ltd. (Op No.1 to 3), where the Op-4 has no role to play, accordingly the Complainant may be dismissed against Op-4.
4. Take up the case of the Complainant and Op-4 on merit as non-appeared on behalf of them on date of argument and ex-parte hearing against Op No. 1to 3, perused the documents filed by Complainant as per list. It is a case of non-rebuttal in nature where the allegation of deficiency in service is arrayed by the Complainant against the concerned Ops(Op No. 1to 3). In the Complaint, it is alleged that, TATA ACE vehicle bearing No. OD-29-9560 was financed to Complainant by Op-1 to 3 and Complainant is a defaulter for the reasons stated in the Complaint. It is further stated in the Complaint that M/S O.A. Das and associates sent a Notice to complainant demanding to pay Rs.6,40,346/- on dt. 8.2.2016 and to attend the arbitration proceeding bearing No. TMFSL/3131 of 2016 before Mr. N.C. Joseph on dt. 17/03/2016 at Mumbai. In support of his allegation Complainant filed Xerox copy of letter dtd. 8.2.2016 loan recall Notice and Xerox copy of letter dtd. 17/3/2016of arbitrator, Mr. N.C. Josheph. Though it is a proceeding of ex-parte, but the allegation and documents presented by Complainant-loanee itself reflects that, Complainant was a defaulter in respect of his finance of vehicle for different reasons and after its default the dispute is referred to arbitrator, Mr. N.C. Josheph Mumbai, which was/is filed for its disposal.
In this circumstances Complainant’s seeks intervention of this Forum on the grounds of deficiency in service with certain prayers. We, are of the unanimous view that prior to filing of the present complaint, the present dispute is referred to an Arbitrator, which is acting under the statute for settling the dispute between financer and loanee. So, no opinion/intervention is required of this Forum as the matter is refer to an Arbitrator. Equally, the provisions/laws/decisions of the Honbl’e commissions/Court do not allow the Foras to create a separate opinion, when the dispute is pending before an Arbitrator, which may lead to a clash between two quasi-Judicial authorities, under this circumstances the Complaint bears no merit and is dismissed without any cost. The I.A. misc case which arises out of the present Complainant was dropped on dt. 18/7/2017 with a direction to Ops not to take any coercive action. Accordingly, as per our aforesaid observation the Op-finance Company is free to take lawful steps in connection to disputed vehicle, so far the I.A. misc case 25/16 is concerned. Equally the Op-4 has not committed any deficiency in service and freed from the allegations of deficiency in service.
Having observations reflected above the Complaint is dismissed on merit against OpNo.4 and ex-parte against Op No. 1to3, without any cost.
Pronounced in the open Court, this 28th day of October,2017.
I, agree. I, agree.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
