Telangana

Mahbubnagar

CC/09/5

Smt. J. Jayamma W/o Ramkondaiah - Complainant(s)

Versus

M/s IndusInd Bank Ltd., rep. by its Branch Manager. - Opp.Party(s)

Sri P. Amba Shankar

31 Jul 2009

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Friday the 31^st day of July, 2009

  Present:-   Sri  T. Ashok Kumar, M.A., LL.B., I  Addl. Dist. & Sessions  Judge-cum-FAC President

          Sri P.Venkateshwar Rao, B.Com. LL.B., Member

               Smt. B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member               

C.C.NO. 5  Of   2009

 

Between:- Smt. J. Jayamma, W/o Ram Kondaiah, Aged: 34 years, R/o H.No.7-5-195/17,  Laxminagar Colony,  Mahabubnagar.  

                                                                                                                                                                   … Complainant

And  

M/s IndusInd Bank Ltd., Rep. by its Branch Manager, Vijayanandana Apartments, Mettu Gadda, Mahabubnagar.

                                                                                                                                                         … Opposite Party

 This C.C. coming on before us for final hearing on 5-6-2009,  in the presence of Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant and of Sri  K. Srikanth, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:

O R D E R

(Sri P. Venkateshwar Rao, Member)

1.        This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to return the vehicle Bajaj Auto 3 Wheeler Diesel-GC-1000 with Registration No. AP 22V 6833 in favour of the complainant and receive the loan installments or in the alternative to pay the sum of Rs.1,10,500/- with interest from the date of investment along with documents and to pay Rs.25,000/- towards compensation and also costs of the proceedings.   

2.     The brief facts of the case are that the complainant purchased   Three Wheeler Bajaj Diesel Auto of 1000 C.C. bearing No. AP22V 6833 for a consideration of Rs.1,10,500/- with the financial assistance from the OP bank for Rs.85,000/- payable in 30 months from 20.7.2006 to 7.6.2009 @ 3,400/- p.m. to OP.   The complainant paid Rs.65,900/- in total under installments. Due to mechanical problem the said vehicle kept idle for about two months, hence the complainant has not been able to pay the remaining installments.  The OP forcibly seized the said vehicle from the complainant without any prior notice.  The complainant approached the OP and asked to receive balance due and return the vehicle.   The complainant also got issued legal notice on 3.12.2007 to OP, but there is no response from the OP.  Thus the OP rendered deficient services by seizing the vehicle without any prior notice which amounts to illegal and unjust and against to law.    Therefore the OP may be directed either to return the Auto or to pay Rs.1,10,500/- with interest apart from compensation of Rs.25,000/- for causing mental agony and to pay costs of the proceedings.      On the other hand the contention of the OP is that the complainant paid Rs.28,900/- only under the installments and she violated the terms and conditions under H.P. Agreement and made default of several installments and not paid such dues inspite of several demands by OP.  As such in terms of Agreement the Auto was seized and repossessed and disposed off the vehicle on 24.5.2008 under auction to the best possible price of Rs.23,000/-.  For the recovery of the balance outstanding the OP has initiated arbitration proceedings before Arbitration Tribunal at Chennai.  Inspite of receiving the notice from the said tribunal the complainant failed to appear and file her version before it.  After considering evidence the Arbitrary panel awarded Rs.74,589/- in favour of the OP.  By suppressing the said fact intentionally the complaint was filed before this Forum.   As such this Forum is not having jurisdiction to entertain and decide the complaint because it was filed after an arbitration award was already passed.  The award of the arbitrator is binding on the parties to the proceedings.  Thus there is no deficiency of service on the part of OP as the OP acted in accordance with the law and H.P. Agreement.  Therefore the complaint is liable to be dismissed with costs.    
3.  The complainant filed her affidavit and got marked Exs.A-1 to A-12.

4.  The OP filed his affidavit and got marked Exs.B-1 to B-5 on his behalf.

5.  The complainant and OP filed their respective written arguments.

6.  Heard the learned counsel for both the parties at length.

7. The points which fall for consideration are:

(i) Whether this Forum has got jurisdiction to decide the complaint after an arbitration award is already passed?

(ii) Whether the complainant is entitled to the reliefs as prayed for?

8.    Point No.1:- The issue involved in this complaint is whether the complaint can be decided by Consumer Forum after an arbitration award is already passed.  

   There is no dispute with regard to the facts that the OP financed the amount to the complainant to purchase the Auto and due to default of some installments the said Auto was seized by the OP.  The contention of the complainant is that seizing and disposing the vehicle for default of few installments without any prior notice is illegal.  Further Arbitration Clause in Hire Purchase Agreement could not exclude or ban the jurisdiction of Consumer Forum to entertain complaint for deficiency in service.   

    According to OP the complainant suppressed about the award of the Arbitration and filed the present complaint before this Forum.   Moreover the complainant violated terms and conditions of H.P. Agreement as such the seizure and initiating arbitration proceedings against the complainant is just and proper even according to law and agreement.  

    We have gone through the material evidence available before us.   We observed that there is no whisper in the complaint about the award of Arbitration.  The OP filed C.C. of Arbitration award and got marked as Ex.B-4.  In this award it is clearly mentioned in page No.3 that the first respondent (complainant herein) has received notice of Arbitration and all other communication of this tribunal and submitted her version on 1.11.2008 stating that she had remitted in all Rs.28,900/- towards installments.  The subject vehicle when it was stationed at a parked place in July, 2007 was taken away without her knowledge and the contentions of the complainant (OP herein) were denied.  It is also evident from Ex.B-4 that the Arbitration award was passed on 24.12.2008 in favour of OP herein by directing the complainant herein and her guarantor to pay an amount of Rs.76,426/- and Rs.1,250/- towards costs of the proceedings to the OP bank.   The complainant filed her complaint before this Forum on 24.11.2008 by suppressing the fact that the Arbitration proceedings are in pending.   The learned counsel for the complainant argued by relying the decisions of 1. II (2009) CPJ 273 Del  2. III (2007) CPJ 161 (NC)  3. 2008 (1) CPR 301 (WB SC)  4. 2006 (1) CPJ 46 (NC)  5. 2007 (2) SCC 711 and 6. 2008 (2) CPR 26 (NC) that the clause of Arbitration under agreement could not exclude the jurisdiction because as per Sec.3 of C.P. Act.  No doubt it is a settled law and in many number of cases the apex courts held that provision for arbitration in agreement could not exclude the jurisdiction of Consumer Forum for deficiency in service that according to Sec.3 of C.P. Act, 1986 clearly stipulates that this is an additional remedy.  However the facts of the case on hand are quite different from the situations of those cases particularly to the facts and circumstances of the citations noted above which are referred by the counsel for the complainant.  In the case on hand already Arbitration award was passed.   It is also a settled law that the award of Arbitration amounts to be an order of civil court.  Hence the principle of res-judicata will apply to the case on hand.  The complainant ought to have filed appeal before the competent court challenging the award of Arbitration if she had any grievance on the said award.  The learned counsel for OP relied upon the unreported decision of the Hon’ble APSCDRC passed in FA 34/2006 in K. Pitchi Reddy Vs. M/s Ashok Leyland Finance Ltd., case in support of his arguments apart from this citation.  The Hon’ble National Commission in its decision reported in CPJ 2007 (1) P.34 N.C. in Instalment Supply Ltd., Vs. Kangra  Ex-serviceman Transport Co.& Another case also held that “The issue involved in this case is whether a complaint can be decided by the Consumer Fora after an Arbitration award is already passed.  The simple answer to the question is No”.   The Hon’ble National Commission further held that “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, order passed by Fora below set aside and complaint dismissed”.   The OP referred Hon’ble APSCDRC decision supra also on the same footing.  Both the decisions are quite applicable to the case on hand because the facts of those cases are very similar to the facts of the case on hand.                 

   In light of the above decisions we are of the considered opinion that this Forum has no jurisdiction to entertain and decide the complaint because the award of Arbitration is already passed for the same issues involved in the complaint on hand.   Therefore the complaint is not maintainable.  Accordingly this point is decided in favour of OP and against the complainant. 

9.  Point No.2:- In view of our findings on issue No.1 we hold that the complainant is not entitled for any of the reliefs.  This point is answered accordingly.   

10. In the result, the complaint is dismissed but in the circumstances of the case without costs.  

   Typed to dictation, corrected and pronounced by us in the open Forum on this the 31^st day of July, 2009.           

 

     MEMBER                            MEMBER                   PRESIDENT (FAC)     

          Appendix of evidence

       Witness examined

For complainant: Nil                                                 For opposite party:  Nil

Exhibits marked for Complainant:-

Ex.A-1:        Delivery Receipt, dt.22.6.2006.

Ex.A-2:        Cash Receipt, dt.22.6.2006.

Ex.A-3:        Cash Receipt, dt.20.7.2006.

Ex.A-4:        Cash Receipt, dt.21.8.2006.

Ex.A-5:        Cash Receipt, dt.25.9.2006.

Ex.A-6:        Cash Receipt, dt.19.10.2006.

Ex.A-7:        Cash Receipt, dt.24.2.2007.

Ex.A-8:        Cash Receipt, dt.12.3.2007.

Ex.A-9:        Cash Receipt, dt.9.5.2007.

Ex.A-10:      Cash Receipt, dt.18.6.2007.

Ex.A-11:      Xerox copy of R.C., dt.28.6.2006.

Ex.A-12:      Letter to OP, dt.3.12.2007.

Exhibits marked for OP:-

Ex.B-1:        Xerox copy of Certificate of Incorporation.

Ex.B-2:        Xerox copy of General Power of Attorney.

Ex.B-3:        Copy of notice issued by OP, dt.23.11.2007.

Ex.B-4:        Copy of Arbitration Award, dt.24.12.2008.

Ex.B-5:        Copy of Installment details.                                                                                                                     

By the Forum:   

    - Nil-

                                                                                                                                                  PRESIDENT (FAC)

Copy to:-

1. Sri P. Amba Shankar, Advocate, Mahabubnagar for the complainant.
2. Sri  K. Srikanth, Advocate, Mahabubnagar for the opposite party.