BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.14 of 2015

Date of Instt. 15.01.2015

Date of Decision :13.07.2015

Vikas Kumar, aged about 36 years son of Ram Pal R/o NA-214, Kishan Pura, Street No.6, Jalandhar.

..........Complainant Versus

1. M/s Shri Ram Transport Finance Co.Ltd, (Registered Head Office), 123, Angappa Naicken Street, Chennai-600001, through its managing Director/General Manager/Regional Manager/Authorized Representative.

2. M/s Shri Ram Transport Finance Col.Ltd, (Branch Office), SCO-2, Ist Floor, PUDA Complex, Ladowali Road, Jalandhar through its Manager/Authorized Representative.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Sh.Parminder Sharma (Member)

Present: Sh.Sohit Talwar Adv., counsel for complainant.

Sh.Vikas Sood Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant was desirous of purchase of some car and the officials of the opposite parties No.1 and 2, approached the complainant and represented that they are dealing in providing car loan and can provide the car loan to the complainant on competitive rates. The officials of the opposite parties No.2 also gave an offer to the complainant that if he will take loan from the opposite parties then the processing charges will be waived off. Believing on the representations, assurances and warranties given by the officials of the opposite parties No.1 & 2, the complainant agreed to avail the car loan from the opposite parties No.1 & 2. At the time of applying the loan, the officials of the opposite parties have got signed certain, unfilled printed forms, and also some blank documents and cheques as security from the complainant under the pretext that theses are the part of loan process and have ensured the complainant that the copies of all these documents will be supplied to the complainant within period of 15 days from the date of sanctioning of the loan but till date copies of those documents are not provided to the complainant. The complainant selected Tata Aria car and the total sale price of the said car was 12,44,000/- (the price of the car was Rs.11,69,100 + 300 Logistic charges + 750 price of Temporary Number Plates + 44.024 insurance charges + 2 Sale Accessories + 124 miscellaneous charges=12,44,000/-). The total payment of Rs.12,44,000/- has to be paid for the purchase of the above said vehicle by the complainant. The estimate of Rs.12,44,000/- was handed over to the opposite parties. At the time of submission of all the documents for loan, the employee of the opposite parties informed the complainant that the loan amount will be paid directly to the Tata Motors dealership. At the time of availing loan from the opposite parties by the complainant, Pawan Kumar son of Darshan Singh

R/o BX-110, Mandir Wali Gali, Kishan Pura, Jalandhar, signed the loan documents as the introducer and no loan was ever availed by the Pawan Kumar from the opposite parties. Thereafter an amount of Rs.8,75,000/- was disbursed by the opposite parties to the dealer and the said loan was repayable in 60 monthly installments of Rs.21,850/-. The said new vehicle was purchased by the complainant from M/s Kosmo Vehicles Pvt Ltd, near DPS School, GT Road, Jalandhar, vide bill No.KosmoV-R-0910-279 dated 19.7.2012 of a sum of Rs.11,99,100/-. It is pertinent to mention that the complainant previously having a Tata Safari Car bearing registration No.PB-08-AL-1444, which was sold by the complainant at the time of purchase of new Tata Aria Car to avail an exchange bonus i.e Rs.50,000/- and a discount of Rs.1.40.000/- was also given to the complainant on the purchase of new vehicle by the company. As per account the total payment of Rs.8,75,000/- (loan amount by cheque) + Rs.50,000/- (Exchange Bonus) + Rs.1,40,000/- (Cash Discount)= Rs.10,65,000/- was deducted from the total amount i.e Rs.12,44,000/- (12,44,000 - 10,65,000- 1,79,000/-). The rest of the amount of Rs.1,79,000/- was paid in cash by the complainant directly to the Tata Dealership. After availing the loan from the opposite parties No.2, the complainant started paying installments of loan, in good faith to the opposite parties continuously as EMI(s). The total amount of Rs.1,21,000/- was paid by the complainant to the opposite parties till 11.6.2013. Later on the complainant demanded loan account statement and photocopies of the signed documents consisting of unfilled printed forms, cheques alongwith some blank documents which were taken by the opposite parties No.1 & 2, as per the loan application from the complainant and then the employee of the opposite parties started lingering on the matter under one pretext or the other. Later on when the complainant threatened to stop the payment of EMI's to the opposite parties, the official of the opposite parties provided the copy of statement of account, the complainant was shocked to find that the opposite parties were charging EMI's on a loan amount of Rs.9,09,000/- instead of Rs.8,75,000/- i.e the actual disbursed amount. The opposite parties were also taking high penalty on bouncing of cheques and some other charges which were not disclosed to the complainant at the time of sanctioning of loan. After receiving statement of account the complainant visited the office of opposite parties No.2 and requested the authorized representative to rectify the loan amount and to re-schedule the loan as per actual disbursed amount and to waive off the extra charges which were imposed illegally, in the loan account of the complainant and to provide the copies of all the documents got signed from the complainant at the time of sanctioning of loan. The official of the opposite parties orally admitted fault of the opposite parties but refused to gave it in writing and has assured the complainant that he will request head office for the re-scheduling of the loan and for the reversal of the excess charges levied in the account and will also arrange the copies of the attested documents got signed from the complainant. Thereafter the complainant stop paying the EMI's to the opposite parties and thereafter at the repeated requests and visits of the officials of the opposite parties, complainant agreed for settlement to the effect that if the complainant surrender the vehicle in question then the opposite parties will not claim any amount from the complainant qua the captioned loan. It was also ensured to the complainant that since the condition of the vehicle is good and the same in new vehicle and the opposite parties will ensure the best deal of the vehicle at the prevailing market price and will refund the excess amount to the complainant after sale of the vehicle in question. It was further assured to the complainant by the official of the opposite parties that they will adopt the due process of law for the sale of the vehicle in question and the sale of the vehicle will be confirmed in the presence of the complainant with his final consent. On the assurances as given above complainant agreed to surrender the above said vehicle to the opposite parties and the possession of the vehicle was given on 26.9.2013. It is further mentioned that the market value of the vehicle at the time of his purchase was Rs.12,44,000/- and within a period of one year, the depreciation of the vehicle will be around 10% only as such the fair market price of the vehicle must be around Rs.11,00,000/-. Thereafter the complainant visited number of times in the office of the opposite parties to know about the sale of the vehicle in question but every time the matter was linger on under one pretext or the other. In the month of October, 2014 a phone call was received from the office of the opposite parties No.2 by the complainant and it was informed to the complainant that some dues of the opposite parties No.1 & 2 are payable by complainant qua the above said car loan. The conduct of the opposite parties in claiming the amount of Rs.9,09,000/- in place of actual disbursed amount i.e Rs.8,75,000/- and charging the excess charges in the loan account which were never agreed upon and in selling the vehicle at throw away price for just Rs.5,90,000/- without following the due process of law and without giving any notice to the complainant and claiming a sum of Rs.5,44,290/- from the complainant for remaining dues of the captioned loan account is nothing else than the unfair trade practice and deficiency in service which can not be permitted under the Consumer Protection Act and the opposite parties are liable to be prosecuted for the same. On such like averment, the complainant has prayed for directing the opposite parties for setting-aside the demand of Rs.5,44,249/- and for refund of the excess amount to him after deducting 10% of the depreciated value of the vehicle. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and moved an application for dismissal of the complaint on the averments that earlier the complainant took the financial assistance from the opposite party and committed the intentional default. The complainant has already challenged the award and filed the petition under section 34 of the Arbitration and Conciliation Act and the same is pending in the court of learned Additional District Judge, Jalandhar. The matter has already been adjudicated by the arbitrator and the complainant has already challenged the award and the present complaint is not maintainable.

3. In reply, the complainant took preliminary objections that application is not maintainable and same has been filed to delay the proceedings. On merits, it admitted that he challenged the award of Arbitrator given at his back and has filed a petition under section 34 of the Arbitration and Conciliation Act and same is pending in the court of Learned Additional District Judge, Jalandhar. The present complaint filed by the complainant is against the applicant i.e opposite party and it is guilty of unfair trade practice and deficiency of service, which has separate cause of action.

4. We have carefully gone through the record and also heard the learned counsels for the parties.

5. In reply to the above said application, the complainant has admitted that he has filed a petition under section 34 of the Arbitration and Conciliation Act challenging the award passed by the Arbitrator. No doubt, the remedy provided under the Consumer Protection Act is in addition to any other remedy available under any other law to the complainant and not in derogation thereof but the complainant can not avail two remedies at the same time. He can either seek remedy under the Consumer Protection Act or under any other law but can not avail two remedies at the same time. Admittedly, the complainant has challenged the award already passed by the Arbitrator by filing petition under section 34 of the Arbitration and Conciliation Act which is pending in the court of Learned Additional District Judge, Jalandhar. So he has also taken recourse to the remedy available under the above said Act. A party can not be allowed to avail two remedies at the same time. In case, the present complaint is held to be maintainable and ultimately it is accepted and on the other hand petition under section 34 of the Arbitration and Conciliation Act filed by the complainant before the court of Learned Additional District Judge, Jalandhar is dismissed and award passed by the Arbitrator is up-held then there will be two conflicting orders in force at the same time and would lead to peculiar situation. So in our considered opinion, the complainant can not seek two remedies at the same time. Since, he has already challenged award passed by the Arbitrator under section 34 of the Arbitration and Conciliation Act which is pending before the court of Learned Additional District Judge, Jalandhar, as such the present complaint is not maintainable.

6. In view of above discussion, the above said application moved by the opposite parties is accepted and the complaint filed by the complainant is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jaspal Singh Bhatia

13.07.2015 Member President