FA 31/2014
Heard on – 12.04.2016
Judgement on – Friday, 22 day of April, 2016.
HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
JUDGEMENT
Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to final order dated 29.10.2013 made by the Ld. District Consumer Disputes Redressal Forum, Howrah (for short, Ld. District Forum) in consumer complaint no. 145/2012 whereby the consumer complaint initiated by the respondent no.1 u/s 12 of the Act was allowed on contest with cost of Rs.10,000/- against the appellants and ex parte against the respondent no. 2 without any order as to costs.
The respondent no.1 herein being complainant lodged the complaint alleging that being an unemployed person for maintenance of his livelihood by way of self employment purchased one chassis from Lexus Motor Ltd. being Registration no. WB-11B/7146 on 12.05.2011 at a consideration price of Rs.18,64,000/- on which the complainant paid an amount of Rs. 3,00,000/- to the opposite parties and the rest of the amount of Rs.15,64,000/- was financed by the parties against the chassis and the said loan was repayable by the complainant by monthly EMI of Rs. 51,000/- for a period of 47 months from 15.06.2011 to 15.04.2015. The complainant states that after purchase, he had to bear Rs.3,50,000/- as body building charges, Rs.40,000/- as misc. Expenses, Rs.1,00,000/- as tax and totalling Rs. 4,90,000/-. After purchasing the vehicle, complainant was going on paying EMI on regular basis but since January, 2012 due to serious mechanical defect of the vehicle he could not pay EMI to the said company. As the vehicle did not work properly within the warranty period, complainant requested the op’s and their authorised service centre for repairment but all the requests went in vain rather in spite of having warranty, the complainant had to bear the expenses of such repairing. The complainant states that after consistent persuasion, however, the op company ultimately agreed to release the vehicle on payment of Rs.11,00,000/-. On 25.09.2012 , in accordance with the settlement arrived at, complainant paid Rs.2,40,000/- by bank draft and the same was received by op company. Subsequently when the complainant was ready to pay the balance settled amount for release of the vehicle and visited the op no.4 (authorised service centre) to watch the condition of the vehicle, he came to know that on 22.09.2012 the TATA Motors Finance Ltd. had already taken over the said vehicle by issuing a letter to op no.4. The complainant alleges that the financer had received Rs.2,40,000/- from him after taking possession of the vehicle on 22.09.2012. Hence, the complaint with prayer for reliefs like – a) for a direction upon op nos. 1 to 3 to return the vehicle bearing no.WB-11B/7146; b) for a direction upon the ops to accept the final settlement by receiving Rs.8,60,000/- or alternatively to refund the amount of Rs.13,50,072/- with 18% p.a. thereon; c) compensation of Rs.5,00,000/- and d) litigation cost of Rs.20,000/- etc.
The appellants herein being opposite party nos. 1 to 3 by filing a joint written version disputed the allegations levelled by the complainant stating that the complainant did not make payments of EMI regularly on the stipulated date i.e. 15th day of each English Calendar month. The ops have also stated that they are being financing company does not take part in manufacturing of vehicles and thus have no knowledge of any manufacturing defect, repair or warranty of the same vehicle. They have also denied that any discussion on settlement of Rs.11,00,000/- was reached or that they had promised to return the vehicle within 15 days of receipt of payment. The ops have categorically stated that they referred the matter to the Sole Arbitrator on 07.05.2012 and the Sole Arbitrator issued two notices upon the complainant, but the complainant did not appear before the Ld. Arbitrator and the Ld. Arbitrator was pleased to pass an order on 13.07.2012 and on the basis of such award the vehicle was repossessed and as such the complaint should be dismissed with cost.
The op no.4 did not file any written version or contested the case.
After assessing the materials on record the Ld. District Forum by the impugned order allowed the complaint with a direction upon op nos. 1 to 3 to return the vehicle bearing no.WB-11B/7146 to the complainant in good running condition within 15 days after receipt of balance amount of Rs.8,60,000/- from the complainant without any interest alternatively to refund Rs.13,50,072/- together with 12%p.a. thereon from the date of filing of complaint till actual payment, a compensation of Rs.2,50,000/- and litigation cost of Rs.10,000/-. Being aggrieved and dissatisfied with the said order, the op nos. 1 to 3 have preferred this appeal.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the appellants as well as respondent no.1. None appears for the respondent no.2.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record it would reveal that the respondent no.1 in order to maintain his livelihood and his family members approached to appellants to purchase a vehicle. The appellants are the financer, branch office of the finance company of Tata Motors Ltd. On 18.05.2011 the respondent no.1 entered into a loan-cum-hypothecation agreement and purchased one vehicle bearing registration no.WB-11B/7146 being vehicle model no. LPT3118TC at a total consideration of Rs.18,64,000/-. On the date of agreement respondent no.1 paid an amount of Rs.3,00,000/- and it was stipulated that the balance amount of Rs.15,64,000/- financed by the appellants would be repaid by the respondent no.1 by monthly EMI of Rs.51,000/- for a period of 47 instalments commencing from 15.06.2011 to 15.04.2015.
It may be pertinent to record that along with memorandum of appeal no relevant documents have been filed even the appellant did not take any pain to file the petition of complaint u/s 12 of the Act, rather filed an application u/s 13 (3b) of the Act which indicates an indifferent and cynical attitude of the appellants. The appellants also did not file any document indicating talk of negotiation between them and the respondent no.1.
Be that as it may, after purchase of the vehicle, the respondent no.1 had to incur expenses of body building and cabin etc. amounting to Rs.3,50,000/-. The documents placed on behalf of the respondent no.1 at the time of hearing clearly indicates that after paying initial instalment of Rs.3,00,000/- on 12.05.2011 the respondent no.1 paid Rs.51,000/- each on various occasions on 23.08.2011, 29.09.2011, 29.10.2011 and 21.11.2011 respectively. However, the respondent no.1 could not make payment in accordance with the terms of the agreement. But several receipts produced by the respondent no.1 clearly postulate that the respondent no.1 had every intention to repay the amount of loan by instalments and same would reveal from the receipts dated 14.12.2011, 11.01.2012, 14.01.2012 an 31.01.2012 whereby the respondent no.1 has paid Rs.20,000/-, Rs.20,000/-, Rs.50,000/- and Rs.13,000/- respectively. The materials on record also go to show that the vehicle in question met certain mechanical defects which required repairing. In this regard the approach of the appellants was far way from satisfactory and there is sufficient evidence to show that during the warranty period for the purpose of repairing the respondent no.1 had to bear his own cost. This itself indicates deficiency in services on the part of the appellants.
The respondent no.1 took a plea that a talk of settlement was going on which has been denied by the appellants in their written version. However, there are certain documents like letter dated 25.10.2012 given by the authorised signatory of Tata Motors Finance Ltd. which clearly indicates that the proposal of the respondent no.1 for settling the dispute was under active consideration of the appellants. However, all on a sudden on 25.04.2012 the appellants through their Advocate issued a loan recall notice for termination of agreement to the respondent no.1/borrower and one Rajpal Rai Chowdhury/guarantor. However, there is no acknowledgement receipt to show that such loan recall notice was received by the respondent. Thereafter, on 07.05.2012 the appellants referred the dispute to one Mr. Nitin Chavan, Chartered Accountant for arbitral proceeding against the respondent no.1. Though the appellants tried to establish that they issued two notices upon the respondent no.1/borrower as well as guarantor of the said vehicle on 07.05.2012 and 21.05.2012 but the appellants have miserably failed to produce a single scrap of paper to establish that such notices were received by the respondent no.1. On 07.05.2012 the Sole Arbitrator on the basis of the averment of the plaint petition passed an order with a direction upon the respondent no.1 to hand over the possession of the vehicle in question. Ultimately just after few days on 13.07.2012 an award was passed without any opportunity to the respondent no.1 to highlight his case before the Ld. Arbitrator.
Basing upon the order of Ld. Arbitrator the vehicle in question was repossessed by the appellants. Prior to such repossession no notice was given to the respondent no.1 with a demand for making payment. On the contrary we find substance in the contention of the respondent that a talk of compromise was going on. Against such repossession the respondent no.1 lodged one G.D.E. being No.298 dated 06.10.2012 with Sankrail P.S. under Howrah district within the jurisdiction where the service centre of the respondent no.2 is situated.
Ld. Advocate appearing for the respondent referring a decision of National Consumer Commission reported in II (2014) CPJ 109 (Beverly Park Maintenance Services Ltd. – Vs. – Kashmir Fab Styles Pvt. Ltd.) and a decision of this Commission reported in (2016)1 WBLR (CPSC) 661 (Thorp Finance [India] Ltd. & Anr. – Vs. – Debabrata Sarkar & Ors.) has submitted that when the respondent did not participate in the arbitral proceedings and choose to file consumer complaint, the award passed by the Ld. Arbitrator is not binding upon the respondent. The Ld. Advocate for the appellant refuting the same has submitted that since an award has been passed by the Ld. Arbitrator, Consumer Forum lost its jurisdiction to entertain the same.
Upon hearing the Ld. Advocate over the issue, we think that it would be profitable to refer a decision of Hon’ble Supreme Court of India reported in (2015)1 WBLR (SC) 385 (Rosedale Developers Pvt. Ltd. – Vs. – Aghore Bhattacharya & Ors.). In paragraph – 7 of the said decision, it has been observed – ‘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 Protection 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 Protection 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 protection 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’. Therefore, relying upon the authority as referred above, it can be safely said that a mere arbitral award without notice upon the respondent does not debar him from taking action under the scheme of the Act.
Needless to say, a repossession of vehicle without any notice to its owner is ex-facie illegal. Prior to arbitral proceedings no notice was served and though it is pin pointed on behalf of the appellants that on 07.05.2012 and 21.05.2012 two notices were issued by the Ld. Arbitrator, but the appellants have failed to show any acknowledgement cards or track consignment report to prove that the same was duly received by the respondent no.1/borrower.
The Ld. District Forum, in that back drop has rightly observed that the appellants company played a trick to befool the complainant because after taking the vehicle from the custody of respondent no.2, they had no occasion to collect Rs.2,40,000/- from the respondent no.1 on 25.09.2012. In fact, after repossession of the vehicle the appellants collected Rs.2,40,000/- from the respondent no.1 who somehow could secure the amount with an idea that the vehicle would be returned to him on payment.
In that perspective, the Ld. District Forum was quite justified in allowing the consumer complaint by directing the appellants to return the vehicle in question after receipt of balance amount of Rs.8,60,000/- out of Rs.11,00,000/- without interest within 15 days from the date of the order but the alternative relief does not appear to us convincing . The materials on record indicates that respondent no.1 had to pay down payment of Rs.3,00,000/-, EMI of Rs.3,07,000/-, on account of final settlement Rs.2,40,000/- and Rs.13,072/- to purchase a spare parts during the warranty period aggregating Rs.8,90,072/-. The expenditure incurred by the respondent no.1 amounting to Rs.4,90,000/- cannot be associated with the relief as the same was incurred by the respondent no.1 for the purpose to make the vehicle fit for ply. Therefore, the said alternative amount as assessed by the Ld. District Forum should not exceed Rs.8,90,000/- (rounded off). The interest imposed by the Ld. District Forum appears to be on higher side because as per prevalent banking interest, it should not exceed 9% p.a. The amount of compensation awarded by the Ld. District Forum also appears to us excessive and we think a compensation of Rs.1,00,000/- instead of Rs.2,50,000/- would meet the ends of justice.
For the reasons aforesaid, the appeal is allowed on contest in part but without any order as to costs in this appeal. The impugned order is modified to the extent that the appellants shall return the vehicle bearing no.WB-11B/7146 to the respondent no.1 on receipt of balance amount of Rs.8,60,000/- without any interest thereon within one month from the date alternatively to refund the amount of Rs.8,90,000/- together with interest thereon @9% p.a. from 16.10.2012 till its realisation.
The appellants are further directed to make payment of compensation of Rs.1,00,000/- to the respondent no.1 as compensation for mental pain and harassment and litigation cost of Rs.10,000/-. The above amounts must be paid within 30 days from the date otherwise it shall carry an interest @ 9% p.a. from date till its realisation.
With the modifications indicated above, the instant appeal stands disposed of.
Let a copy of this order be forwarded to the Ld. District Forum for information.
