BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.369 of 2008

Date of Instt. 21.07.2008

Date of Decision: 08.05.2018

Neelam Kumari aged 45 years wife of Sh. Vijay Kumar resident of Village Datarpur Tehsil Mukerian Distt. Hoshiarpur.

..........Complainant

Versus

1. Magma Shrachi Finance Limited, Regd. Office 24, Park Street Calcutta-700016 through its Managing Director/Chairman.

2. Magma Shrachi Finance Limited, Regional Office, Savitri Complex-I, Second Floor, Cabin No.211, Near Dholewal Chowk, Ludhiana through its Manager.

3. Magma Shrachi Finance Limited, Branch Office, Ladowali Road, Near B.S.F. Chowk, Jalandhar through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Gurcharan Singh, Adv Counsel for the Complainant.

Sh. Vikas Sood, Adv Counsel for OPs.

Order

Karnail Singh (President)

1. This complaint has been received on remand from the Hon'ble National Commission, vide order dated 10.11.2017, whereby direction was given to this Forum to decide the complaint afresh after giving an opportunity of the party being heard.

2. Brief facts of the complaint are that the complainant is a permanent resident of VPO Datarpur, Tehsil Mukerian, District Hoshiarpur and the complainant has purchased Ashoka Leyland vehicle bearing registration No.PB-07R/8163 in the year 2006 by taking a loan from the OP No.2 and as such, the complainant is a consumer of the OPs. The complainant has purchased the above said vehicle to earn her livelihood by way of the self employment.

3. That the complainant was required to repay the loan amount in installments and the complainant started making payment of installments and she had made last payment of Rs.27,805/- on 30.04.2008. Even on 31.03.2008, she had paid Rs.22,500/- to Mr. Rajinder Kumar representative/official of the OP No.3. It is pertinent to mention here that the complainant has made the payment of installment to Mr. Rajinder Kumar representative/official of OP No.3 and she had paid Rs.3,33,705/- to the OPs till date. The complainant had paid the installments regularly to the OPs. As there is slump in the business, the complainant is not able to pay the entire amount, but assured the OP No.2 and 3 that she will make all the payments within a short period. To the utter surprise of the complainant, on 30.04.2008, the complainant has made the last payment to the OP, inspite of this fact the OP No.2 forcible repossessed the vehicle in question from the driver Rakesh Kumar on 30.04.2008 from Tanda Bye Pass Road, Hoshiarpur. Even the Gunda elements, who were representing themselves to be the agents of the OPs did not allow the goods/cash etc. to be removed lying in the vehicle and they took away the vehicle along with the articles of the driver. Even the driver requested them that the complainant will pay the interest if there is any delay in paying the installment due towards the complainant, but the said Gunda elements did not listen the request of the driver. When the complainant came to know about the incident then she immediately contacted the OP No.2 and enquired about the seizure of the vehicle, but the OP No.2 has not given satisfactory reply to the complainant. It is pertinent to mention here that no notice was given after the seizure of the vehicle, which clearly shows that the OP No.2 has re-possessed the vehicle with some ulterior motive. Thus, it is clear that OPs have in-connivance with each other, seized the vehicle illegally, unlawfully and has thus indulged in the unfair trade practice and it is also a deficiency in service. The complainant has unnecessarily harassed and has gone through the mental agony and could not earn any thing, which was necessary to make his both ends meets and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs may be directed to release the vehicle bearing registration No.PB-07R/8163 and also be directed to receive the balance amount, two-three installments till 30.04.2008 and further OPs be directed to pay Rs.50,000/- as compensation and Rs.25,000/- as litigation expenses.

4. Notice of the complaint was given to the OPs and accordingly, OPs appeared and filed written statement, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and further averred that the present complaint is bad for mis-joinder and non-joinder of necessary parties. It is further alleged that the complainants had taken the financial assistance from the OP and failed to discharge the liability in time. Thereafter, dispute arose between the parties and the vehicle was repossessed as per law. After the repossession, the vehicle was sold as per terms and conditions of the loan agreement. The statement of account is attached. The terms and conditions of the loan agreement are binding on both the parties. If there is any grudge or dispute from the complainant towards the OPs, then she can only avail the remedy under the Arbitration and Conciliation Act, 1966 as amended up to date. The complete statement of account and foreclosure is attached. Hence, the complainant has not filed the present complaint with clean hands and the same is liable to be dismissed. It is further submitted that this Forum has no territorial jurisdiction to entertain and try the present complaint. On merits, the factum in regard to a loan for purchase of the vehicle by the complainant is not denied, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA along with documents Ex.C-1 to Ex.C-18 Installment Deposit Receipts, Ex.C-19 Copy of Invoice, Ex.C-20 Installment Deposit Receipt, Ex.C-21 Copy of Registration Certificate, Ex.C-22 Copy of Insurance and closed the evidence.

6. Similarly, counsel for OP No.1 to 3 tendered into evidence affidavit of Sukhveer Singh, Attorney of Magma Fincorp Ltd. as Ex.OP/A alongwith some documents i.e. Ex.OP-1 to Ex.OP-5 and then closed the evidence.

7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

8. The OP took a plea that the complainant was defaulter of 5/7 installments when the vehicle in question was repossessed by the OP and further the same was sold in open auction, as per terms and conditions elaborated in the agreement and as such, there is no violation on the part of the OPs and further OP took a plea that there is an Arbitration Clause in the agreement and copy of the agreement is Ex.OP-3, wherein at Page No.5 Clause No.22 have arbitration clause and in view of the Arbitration Clause, the OP referred the matter to Arbitrator and accordingly, notice was issued to the complainant, but the complainant did not appear and ultimately, the Arbitrator decided the award and photostat copy of the award is available on the file Ex.OP-4 and further the said award was challenged by the complainant under Section 34 of the 'Arbitration and Conciliation Act', but the said appeal of the complainant was dismissed in default for want of appearance, vide order dated 24.01.2018, by the Court of Sh. Sandeep Kumar Singla, Additional District Judge, Hoshiarpur and copy of the order is Ex.OP-5.

9. Before imparting with the main dispute, first of all we have to consider whether the instant complaint is maintainable, when the award has been already passed by the Arbitrator on 31.03.2010 and photostat copy of the same is available on the file Ex.OP-4. No doubt, as per settled law, if there is any Arbitration Clause in agreement, even then the Consumer has additional remedy to file a complaint before the Consumer Forum, subject to condition neither of the party has not already approached to the Arbitrator, if the matter is pending or decided by the Arbitrator, then neither of the party has right to avail the opportunity as given in Section 3 of the 'Consumer Protection Act' rather they have to follow the proceeding and award of the Arbitrator and similarly happened in this case, the Arbitrator, who was appointed on 23.09.2008 for deciding the matter in dispute, the Arbitrator was appointed prior to the decision of this Forum in regard to same matter in issue and proceeding before the Arbitrator were well within the notice of the complainant as the complainant has challenged the award before the Additional District Judge, therefore, we are of the opinion that the Arbitration award has already got finality and thus, the instant complaint is not maintainable and in support of this observation, we like to refer a pronouncement of Hon'ble National Commission, cited in 2016 (2) CPJ 231, titled as “Magma Fincorp Ltd. Vs. Gulzar Ali”. On the same point, we further like to refer an other pronouncement of Hon'ble National Commission, cited in 1992(3) CPJ 38, titled as “M/s Durga Commercial Corporation Vs. M/s United India Insurance Co. Ltd and Others” and further we like to refer an other pronouncement of Hon'ble National Commission, cited in 2016(4) CPJ 35, titled as “Jagdish Kainthla Vs. Bajaj Allianz Company and anothers”, wherein his Lordship held as under:-

“Consumer Fora do not have jurisdiction to sit in judgment over the awards of arbitrators”.

10. If we see the case of the complainant in the light of above judgments, then we reach to the conclusion that the award has been already passed by the Arbitrator, which has got finality and as such, the instant complaint is not maintainable rather the remedy with the complainant is only to challenge the said award of the Arbitrator. So, accordingly, with these findings, we conclude that the complaint of the complainant is not maintainable. Therefore, the same is dismissed with no order of cost. Parties will bear their own cost. This complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

08.05.2018 Member President