IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC /57/2017.
Date of Filing: 11.04.2017. Date of Final Order: 01.08.2018
Complainant: Sujit Kumar Ghosh, S/O Swapan Kumar Ghosh,
78/12, Exhibition Bagan Road, P.O.& P.S. Berhampore,
Dist. Murshidabad, Pin 742101.
-Vs-
Opposite Party: 1. The Manager, Tata Motors Finance Ltd (10th Floor),
106A & 106B Makeri Chamber, Norimon Point,
Mumbai-400021.
2. Branch Manager, Tata Motors Finance Ltd.,
Berhampore Branch, Sahid Surya Sen Road, Gorabazar,
P.O.&P.S. Berhampore, Dist. Murshidabad, Pin 742101.
Agent/Advocate for the Complainant : Sri Surojit Banerjee.
Agent/Advocate for the Opposite Parties : Sri Jaydeep Misra.
Present: Sri Asish Kumar Senapati…………………. President.
Smt. Chandrima Chakraborty ……………………..Member.
FINAL ORDER
Asish Kumar Senapati, President.
This is a complaint U/s 12 of the C. P. Act, 1986.
One Sujit Kumar Ghosh (herein after referred to as the complainant) filed this case against the Manager, Tata Motors Finance Ltd and the Branch Manager, Tata Motors Finance Ltd (herein after referred to as the OPs) praying for compensation alleging deficiency in service.
The facts of the case, in brief, is as follows:-
The complainant was an unemployed youth intended to carry on transport business and approached the OPs for purchasing a Tata L.P.T. Truck by financial assistance of the OPs. The OPs lent a sum of Rs.18, 20,000/- out of total price of the said truck of Rs.21, 44,000/- . That the said Truck has been registered at the office of the Registering Office at Murshidabad being registration No. WB57B 6979 and the complainant has been running his transport business by plying the said Truck on road to earn his livelihood. The OPs claimed Rs.6, 55,200/- as finance charge which is illegal. The complainant paid Rs.15, 66,885/- by cash periodically in terms of the agreement by installments regularly up to 07.03.2017. The complainant, with his utter surprise, found from the Statement of Accounts delivered by the OPs that a sum of Rs.8,54,835 has been demanded for alleged over-due installments and a sum of Rs.3,14,405/- towards interest. The demand of the OPs is excessive and baseless. The complainant requested the OPs to settle the claim at Rs.2, 52,115/- with interest totaling a sum of Rs.4, 00,000/ but the OP did not agree to settle the claim and they are trying to take over the Truck forcefully. Hence, the complainant filed this case.
The OPs put their appearance and filed Written Version on 12.09.17 contending that the complainant is a consumer and this Forum has no pecuniary jurisdiction because the present dispute involves more Rs.20 Lakhs as the contract value is Rs.24,75,200/- . That the OPs filed an application No. 40/2015 for arbitration before the Ld. Arbitrator and Arbitration case No. 79/15 against the complainant was passed and the Ld. Arbitrator passed an award that the complainant would pay a sum of Rs.12,00,146.1/- inclusive of interest and other charges . That the present case is barred by principle of resjudicata . That on 30.04.13 a higher purchase agreement was entered into by and between the complainant and the OPs as financer and Saraswati Ghosh, as guarantor where the OPs let out to the complainant of Tata LPT Truck on higher purchase basis on the terms and conditions of the said agreement. As per agreement, the claimant was to repay the amount of Rs.18,20,000/- and interest of Rs.6,55,200/- by way of 47 monthly installments but the complainant failed /neglected to make payment of installments payable by the complainant. The OP by issuing a notice dt. 07.08.15 called upon the claimant to make payment of the outstanding dues and handed over the possession of the said vehicle to the complainant but the complainant failed and neglected to repay the entire outstanding amount of
Rs. 12, 00,146.21 as on 07.08.15 was. Ultimately, an Arbitration Case No. 79/15 was initiated against the claimant and his guarantor Swarasati Ghosh and the Ld. Arbitrator vide his order dt. 07.11.15 awarded a sum of Rs.12, 00,146.21 inclusive interest and other charges along with interest @18% p.a .
The OPs prayed for dismissal of the complaint with cost.
Upon the versions of the complaint, written version, the following points are framed for proper adjudication of the case:
Points for Decision
- Is the complainant a ‘’consumer ’’ in terms of the provisions of the C. P. Act, 1986?
- Has this Forum territorial and pecuniary jurisdiction to entertain the case?
- Have the Ops deficiency in service,as alleged ?
- Is the complainant entitled to get any relief /reliefs, as prayed for?
Decision with Reasons.
Point No.1.
The Ld. Advocate for the complainant submits that the complainant is a consumer and he hired the services of the OPs.
In reply the Ld. Advocate for the OPs submit that the complainant is not a consumer as he purchased the Truck on taking financial assistance from the OPs for commercial purpose.
The complainant has asserted that he purchased the Truck to carry on his transport business for his livelihood.
It is argued by the Ld. Advocate for the complainant that the purchase of the Truck was for self employment.
Admittedly, the complainant purchased the Truck on getting financial assistance of the OPs amounting Rs.18, 20,000/- and it has been asserted by the complainant that he has been carrying on his livelihood by running the said Truck.
The word “Consumer” is defined u/S 2(1)(d) (ii) of the C. P. Act, 1986 and it 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 of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promises, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.’’
Explanation- For the purpose of this Clause “Commercial purpose” does not include use 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.
It is the version of the complainant hat he has been carrying on his livelihood by running the said Truck and the transport business is a small venture of earning his livelihood but it is not even asserted that he has been running his transport business to earn his livelihood by means of self employment. Running of a transport business is undoubtedly a commercial purpose. But the complainant has not stated that the running of his transport business is for his earning his livelihood by means of self employment. Therefore, we have no hesitation to hold that the complainant has failed to establish that he is a “consumer’ in terms of Section 2(1)(d)(ii) of the C . P. Act, 1986.
Point No.2
Ld. Advocate for the complainant submits that this Forum has both territorial and pecuniary jurisdiction to entertain the complainant as there is a consumer dispute between the parties.
In reply the Ld. Advocate for the OPs has argued that the Contract value of the disputed truck is Rs.24,75,200/- and this Forum has no jurisdiction to entertain any complaint which involves any amount more than Rs.20 Lakhs.
We have gone through the written complaint, written version, evidence adduced by the complainant and the documents submitted by both sides.
Section 11 of the C. P. Act, 1986 prescribes the jurisdiction of the District Forum. The District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed “does not exceed rupees twenty lakhs”.
In the present case, the complainant has asserted the value of the services amounting to Rs.6,55,200/- + Rs.3,14,584/- which falls under the pecuniary jurisdiction of the District Forum.
Considering all aspects of the case, we find that this Forum has territorial as well as pecuniary jurisdiction to entertain this complaint.
Point Nos. 3&4.
Ld. Advocate for the complainant submits that the OPs have illegally claimed financial charges and demand of Rs.12,22,000/- is not justified as the complainant has already paid Rs.15,60,000/- and the OPs are only entitled to get a sum of Rs.2,53,115/- . He prays for passing an appropriate order against the OPs for their deficiency in service.
In reply Ld. Advocate for the OPs submits that the complainant is not entitled to get any relief as the OPs have no deficiency in service. It is argued that the complainant and his Guarantor Swaraswati Ghosh are duty-bound to repay the loan amount in terms of the Agreement dt. 30.04.2013 (Annex A). He contends that the complainant was a defaulter in payment of monthly installments in terms of the Agreement and it is apparent on the face of the Statement of Accounts filed by the OPs (Annexure B). It is contended that the OPs filed an Arbitration Application No. 40/2015 and in Arbitration Case No. Lot 79/August 041 of 2015 dt. 17.08.15, the Ld. Arbitrator vide his Order dt. 7.11.15 passed an award directing the complainant and Saraswati Ghosh to pay a sum of Rs.12,00,146.21 along with interest @18% pa. with effect from 6.08.15 till the date of payment/realization. He argues that the order was passed on 7.11.15 by the Ld . Arbitrator and the complainant has filed the case before this Forum on 11.04.17 with a view to frustrate the arbitration award. He argues that there is a provision for referring the dispute to an Arbitrator vide Cl.23.1 of the Loan Agreement. It is urged that there is no deficiency in service on the part of the OPs.
Per contra, the Ld. Advocate for the complainant submits that there is no bar to file a case before the Consumer Forum, even an Arbitration case is pending or disposed of on the self same issue. It is urged that the complainant was not represented in the Arbitration case and the Arbitration Award is not binding on the complainant.
Admittedly, the complainant took financial assistance from the OPs amounting Rs.18, 20,000/- for purchasing of a Truck. It is clear from the Statement of Accounts filed by the OPs (Annexure B) that the complainant was not regular in payment of installments. Admittedly, loan was disbursed to the complainant on the basis of a Loan Agreement dt. 30.04.13. There is a provision to refer any dispute to the Arbitrator in Cl. 23.1 of the Loan Agreement. Accordingly, the OPs referred the dispute to the Arbitrator vide Arbitration Case No. Lot 79/August 041 of 2015 and the Ld. Arbitrator , after serving notice on the complainant and his Guarantor Saraswati Ghosh , passed an award on 7.11.15 directing the complainant and guarantor Saraswati Ghosh to pay a sum of Rs.12,00,146.21 along with interest @18% p.a. with effect from 06.08.15 till the date of payment/realization . The complainant has not complied with the order passed by the Ld. Arbitrator on 07.11.15.
With due regard to the submissions of both sides, we think that consumer complaint cannot be entertained , if it is found that Arbitration Award has already been passed long before fling of consumer complaint. In the present case, Arbitration award in terms of the Loan Agreement was passed on 07.11.15 but the complainant has filed the case against the OPs on 11.04.17. We find that the complainant has failed to establish any deficiency in service on the part of the OPs. Hence, we hold that the complainant is not entitled to get any relief against the OPs.
In the result, the complaint case fails.
Reasons for Delay:-
This case was filed on 11.04.2017 and got admitted on 19.04.17. The OPs put their appearance and filed W/V on 12.09.17. The Forum tried its level best to dispose of the case as expeditiously as possible in terms of Section 13(3A) of the C. P. Act, 1986. The cause for delay is also explained in day to day orders.
Fees paid are correct
Hence,
Ordered
that the Consumer Complaint No. 57/2017 be and the same is hereby dismissed on contest against the OPs without any order as to cost.
Let a plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website: confonet.nic.in
Dictated & corrected by me.
President.
Member President.
