DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 19 of 15-01-2008<br /> Decided on : 29-05-2008 <br /> <br /> Gurdeep Singh S/o Sh. Shingara Singh R/o. Village Kotha Guru Ka, Tehsil Phul, District Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.M/s. Tata Motors Limited, Tata Motor Finance Division, DGP House, 4th Floor, Old Prabha Devi Road, Mumbai 400025 through its Chairman/Managing Director;<br /> 2.M/s. Tata Motors Finance Limited, Division of Tata Motors Limited, DGP House, 4th Floor, Old Prabha Devi Road, Mumbai 400025 through its Chairman/Managing Director<br /> 3.M/s. Tata Motors (Finance) Limited Divisional Office, 3rd Floor, SCO 123, Feroze Gaandhi Market, Ludhiana through its Manager/Dvisional Manager/ authorised official;<br /> 4.M/s. Tata Motors (Finance) Limited , Branch Office SCF 133 G.T. Road, Opposite Alankar Cinema, Bathinda through its Manager/Branch Incharge. <br /> .... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Lakhbir singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Surinder Pal Singh Khokhar, Advocate.<br /> For the Opposite parties : Sh. H.S. Dhillon, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Complainant had purchased Tata LCV 207 vehicle manufactured by Tata Motors Limited. It was financed by Tata Motors Finance Division of the opposite parties. Registration No. PB-03M-9196 was allotted to this vehicle. At the time when it was financed, there was an agreement between him and the opposite parties that out of the total price of the vehicle i.e. Rs. 3,74,000/-, Rs. 81,000/- would be down payment. Remaining amount of Rs. 2,93,000/- would be financed through Tata Motors Finance Division. Finance charges were calculated as Rs. 52,740/-. Rs. 23,620/- were charged for insurance to be obtained by the opposite parties on his behalf. In this manner, total contract value was fixed as Rs. 3,69,360/- payable in 45 installments of Rs. 8208/- each. It was further agreed and assured by the opposite parties that vehicle would be got insured by them every year on his behalf. Accordingly, they got it insured vide policy No. 360100/31/05/00118 with New India Assurance Company Limited for the period from 30.12.05 to 29.12.06. Insurance premium to the tune of Rs. 11,961/- was directly paid by them to the Insurance Company. They were supposed to get the vehicle insured for the period from 29.12.06 to 29.12.07 as per terms agreed between them. Before 29.12.06 opposite parties were contacted by him for getting the vehicle Insured. Assurance was given by them that vehicle has already been insured for the period from 30.12.06 to 29.12.07. Requisite premium/charges were already recovered by them in the contract value and by way of additional recovery from him. They further told him that policy would expire on 29.12.07 and copy of the Insurance policy would be issued to him. Computerised statement of account clearly showing that Insurance policy would expire on 29.12.07, was issued. He bonafidely believed them as even in the first year Insurance was got effected by them and a sum of Rs. 23,620/- was included in the contract value. Another sum of Rs. 7309/- was shown in the statement of account dated 27.2.07 as additional recovery for the Insurance provision. Two more computerised statements dated 22.6.07 and 14.8.07 were issued by the opposite parties showing the expiry of the Insurance policy on 29.12.07. On 2.6.07 vehicle had met with an accident. Loss to the tune of approximately of Rs. 25,000/- was suffered by him. Opposite parties were approached for getting the Insurance policy got effected by them for the period from 30.12.06 to 29.12.07 for lodging the claim for compensation with the Insurance Company. Opposite parties paid no heed. He alleges that they did not get Insurance of the vehicle for the period from 30.12.06 to 29.12.07 and misappropriated the amount by way of including it in the contract value on account of Insurance charges. Registered legal notice dated 4.7.07 was served by him through his counsel upon the opposite parties, but to no effect. In these circumstances, he alleges deficiency in service and unfair trade practice on the part of the opposite parties and has preferred this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') seeking direction from this Forum to the opposite parties to pay him Rs. 1,20,000/- i.e. Rs. 25,000/- as damages and repair charges of the vehicle; Rs. 25,000/- for non-usage of the vehicle; Rs. 50,000/- for physical, mental tension and harassment and Rs. 20,000/- on account of Insurance charges already charged alongwith interest @18% P.A.<br /> 2. On being put to notice, opposite parties filed their version taking preliminary objections that this Forum has got no jurisdiction. Infact it is a case of rendition of accounts and as such it is is not maintainable before this Forum; dispute, if any, has arisen out of contractual relationship and it does not fall within the purview of the Act; complainant is using the vehicle for commercial purposes and he is owning some other vehicles and as such, he is not consumer; only the Mumbai courts have the jurisdiction as per terms and conditions of the agreement bearing No. 749220 dated 18.1.05; complicated and complex issues both on Law and facts are involved on account of which this Forum cannot decide the matter in its summary jurisdiction; complainant has suppressed material facts and loan matters do not fall within the ambit of the Act. They admit that vehicle was financed by Tata Finance Limited. Insurance provision of Rs. 23,600/- was not taken in advance and the same was to be repaid in installments forming part of the monthly installments of Rs. 8,208/- which were to be paid from 25.2.05 to 25.10.08. For renewal of the Insurance Tata Motor Limited had paid the premiums directly to the Insurance Company i.e. Rs. 11,960/-for the second year, Rs. 10,774/- for the third year and Rs. 10,749/- for the fourth year. Insurance policies are to be issued in the name of the complainant by concerned Insurance Company. In case complainant did not receive any Insurance policy, he should not have put the vehicle on road. Complainant was clearly told that against the provision amount of Rs. 23,620/- with the break up of Rs. 7,873/- for the second year, Rs. 7873/- for the third year and Rs. 7,874/- for the fourth year, they have spent about Rs. 10,000/- in excess of the provision apart from the amount being paid by him by way of agreement installment of Rs. 8,208/- and that this amount would be adjusted towards these expenses. Installment cheques for the months of December, 2006, January, 2007 and June, 2007 were dishonoured for insufficient funds. When he has not made any payment in advance for insurance and they have have done their duty by sending the Insurance premium, there is no deficiency in service and unfair trade practice on their part. They deny that they have misappropriated any amount. Statement of accounts were given as and when they were demanded. They have performed their obligation under the agreed terms by way of sending the amount of premium cheques to the Insurance Company ICICI Lombard General Insurance. They deny the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of contract details (Ex. C-2), photocopies of Invoice (Ex. C-3 to Ex. C-4), photocopies of policy (Ex. C-5 to Ex. C-6), copy of letter dated 1.12.05 (Ex. C-7), receipt (Ex. C-8), copy of legal notice (Ex. C-9), postal receipts (Ex. 10 to Ex. C-12), acknowledgement card (Ex. C-13), photographs (Ex. C-14 to Ex. C-16), receipt (Ex. C-17), photocopy of certificate cum policy schedule (Ex. C-18), photocopy of DDR (Ex. C-19), photocopy of R.C. (Ex. C-20), photocopy of contract details and repayments (Ex. C-21 to Ex. C-26) and photocopy of Insurance Detail (Ex. C-27).<br /> 4. In rebuttal, on behalf of the opposite parties photocopy of Agreement (Ex. R-1), photocopy of Insurance details (Ex. R-2), photocopy of Rejected Receipt (Ex. R-3) and photocopy of certificate cum policy schedule (Ex. R-4) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant. <br /> 6. One of the preliminary objections taken by the opposite parties is that complicated and complex questions of law and facts are involved for the decision of which recording of evidence is required and numerous documents have to be produced and as such, this Forum in its summary proceedings cannot decide the complaint. In our view, this objection cannot be sustained. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved as has been been held by their Lordships of Hon'ble Supreme Court in the case of CCI Chamber Co-op Housing Society Limited Vs. Development Credit Bank Limited III(2003) CPJ 9 (SC). Similar view has been held in the case of J J Merchant and Others Vs. Shrinath Chaturvedi and others III (2002) CPJ 8 (SC). Apart from this, it is also worth mentioning that all the opposite parties have concluded their evidence of their own. Nothing was brought before us by any of the opposite parties that some other evidence is to be led which could not be produced as it was voluminous or could not be recorded by this Forum.<br /> 7. So far as the objection of the opposite parties that it is a case for rendition of accounts is concerned, it cannot be entertained. It is evident from the averments in the complaint that complainant is not seeking rendition of the accounts. He alleges deficiencies in service and unfair trade practice on the part of the opposite parties by alleging that opposite parties did not Insure the vehicle in question from the period 30.12.06 to 29.12.07, which can be determined by this Forum.<br /> 8. As regards jurisdiction of this Forum, Mr. Dhillon learned counsel for the opposite parties argued that this Forum has got no jurisdiction in view of Clause No. 24 of the Agreement entered into between the parties, copy of which is Ex. R-1. <br /> 9. After giving our thoughtful consideration to this submission, we do not feel ourselves inclined to agree with it. Clause No. 24 of the Agreement is reproduced as under :<br /> 24. “JURISDICTION<br /> All disputes, differences and/or claims arising out of these presents or as to the construction, meaning or effect hereof or as to the rights and liabilities of any of the parties hereto, the same shall be settled by Arbitration to be held at Mumbai in accordance with the provisions of the Arbitration and Conciliation Act 1996 or any statutory amendments thereof or any statute enacted for replacement therefore and shall be referred to the sole Arbitration of a person to be appointed by TFL in the even of death, refusal, neglect, inability or incapability of the person so appointed to act as an Arbitrator, TLF may appoint a new Arbitrator. The award including interim award/s of the arbitration shall be final and binding on all parties concerned. The Arbitrator shall not be required to give any reason for this award including interim award/s. The Arbitrator may lay down from time to time the procedure to be followed by him in conducting arbitration proceedings and shall conduct arbitration proceedings in such <br /> manner as he considers appropriate.” <br /> Matter on this aspect of the matter has already been set at rest by the Hon'ble National Commission in the case of Sri Hanuman Sehkari Avas Smiti Limited Vs. Smt. Anandi Choudhery 2005 CTJ 730( CP) (NCDRC) by holding that even where the alternative remedy of Arbitration is available, it does not oust the jurisdiction of the Consumer Forums in view of Section 3 of the Consumer Protection Act. In other words, even if the remedy of arbitration is found provided in the agreement between the parties, it would not bar the Forums from redressing the complainant's grievances. Similar view has been held by the Hon'ble State Commission Shimla in the case of Tej Singh Paul Vs. New India Assurance Company Limited and another 2007 CTJ page 519 (CP) (SCDRC). In the case of Oriental Insurance Company Limited Vs. Mr. Bhingerwala 2005 CTJ 49 it was held by Hon'ble National Commission that Consumer Forums cannot direct the parties to go for arbitration. The direction given by State Commission was not sustained. Case was remanded to State Commission for deciding it on merits. In that case complainant had alleged deficiency in service on the part of the revision petitioner. In these circumstances, this Forum is well within rights to hear the complaint regarding deficiency in service and unfair trade practice alleged by the complainant.<br /> 10. As regards the objection that vehicle is being used for commercial purposes, opposite parties have not proved any affidavit to show that vehicle purchased by the complainant was certainly used for commercial purposes. Opposite parties were to render services to the complainant by way of getting the vehicle Insured from time to time by way of paying the premium and to recover this amount from him in installments. Since opposite parties were to render him services, he is consumer. For this reference may be made to <br /> the authorities Alfa Automobiles Vs. Gopti Nath Trading and<br /> <br /> Another 2006(2) CLT 524 and Meera & Company Vs. Chinar Syntax Limited 2004 NCJ 345 (NC).<br /> 11. Opposite parties in the reply of the complaint on merits admits that Insurance of the vehicle was being renewed from time to time. They were paying the premium directly to the Insurance Company. They assert that a sum of Rs. 11,960/-, Rs. 10,774/- and Rs. 10,749/- was deposited with the Insurance Company for the second, third and fourth years respectively. Here dispute is regarding the Insurance of the vehicle for the period 30.12.06 to 29.12.07. Vehicle had met with an accident on 2.6.07. As is evident from Ex. C-5 & Ex. C-6 opposite parties got the Insurance of the financed vehicle themselves and amount was charged by the Insurance Company from the account of the complainant vide Ex. C-7 & Ex. C-8. Opposite parties had assured and represented that Insurance for the period from 30.12.06 to 29.12.07 was obtained. They also issued statements of account dated 27.2.07, 22.6.07 and 14.8.07 copies of which are Ex. C-2, Ex. C-23 and Ex. C-21 respectively making it clear that policy of the vehicle was expiring on 29.12.07. In other words, they represented to the complainant that vehicle was Insured and the Insurance was valid upto 29.12.07. At the risk of repetition it is again mentioned that they have stated in so many words in the reply of the complaint that a premium of Rs. 10,774/- was paid for the third year for Insurance of the vehicle for the period 30.12.06 to 29.12.07. Infact they did not obtain the Insurance for this period although they are showing that premium of Rs. 10,774/- was paid for this period to ICICI Lombard General Insurance, Mumbai. Ex. R-4 is the copy of the Certificate-cum-policy schedule for the period from 25.8.07 to 24.8.08 for which a sum of Rs. 10,774/- has been shown to have been paid. In case opposite parties had paid premium for Insurance of the vehicle for the period 30.12.06 to 29.12.07 to ICICI Lombard General Insurance then what was the necessity to Insure it again for the period from 25.8.07 to 24.8.08 particularly when Insurance period was to expire on 29.12.07. For the fourth year Insurance premium has been shown to have been paid from 30.12.07 to 29.12.08. Again this does not sound to reason at all when vehicle of the complainant has been shown to have been Insured through Certificate-cum-Policy for the period 25.8.07 to 24.8.08 then what was the necessity for insuring it again from 30.12.07 to 29.12.08. Opposite parties are taking contradictory plea. On the one hand they are saying that vehicle was Insured for the period from 30.12.06 to 29.12.07 and in the additional reply to the application for production of documents dated 21.4.08, their plea is that in view of the continuous defaults, the Insurance was not renewed. Opposite parties did not think it fit to file affidavit in support of their version in the reply of the complaint as they knew that it may lead to filing false affidavit particularly when contradictory pleas have been taken by them in the reply of the complaint and in the additional reply of the application for production of documents. In case they had paid the charges to the ICICI Lombard General Insurance for the period from 30.12.06 to 29.12.07 record of Insurance Company could be got produced by them. Their case that complainant committed default in the payments of the loan amount due to which Insurance was not renewed is not acceptable. As agreed by them and the complainant, opposite parties were to get the vehicle Insured in the name of the complainant and earlier this was being done. In case there was default in the payment of the installments on account of the fact that cheques were dishonoured and opposite parties were not to get Insurance of the vehicle renewed, intimation could be given to the complainant. To the contrary, they continued assuring and representing to him (complainant) that Insurance was expiring on 29.12.07. This representation has proved false. Complainant continued believing them and he was under the impression that his vehicle was got insured by the Finance Company upto 29.12.07. Vehicle had met with an accident. Since vehicle was not Insured on 2.6.07 complainant could not get the amount spent by him for repairs of the vehicle from any Insurance Company by way of lodging the claim. Accordingly, deficiency in service and unfair trade practice on the part of the opposite parties is proved.<br /> 12. Now question arises as to which relief should be accorded to the complainant. As per Ex. C-3 complainant spent Rs. 6461/- towards labour charges and Rs. 15,597/- for parts vide Ex. C-4. Vehicle is of the manufacturing year of 2004. In such a case 25% depreciation is permissible. When depreciation is considered regarding parts replaced i.e. on Rs. 15,597/- amount comes to Rs. 11,698/-. Direction deserves to be given to the opposite parties to pay it to the complainant Rs. 11,698/- plus Rs. 6461/- i.e. Rs. 18,159/- alongwith interest @9% P.A. from 13.7.07 till payment. In our view complainant is not entitled to Rs. 25,000/- for non-usage of the vehicle as vehicle was to be got repaired by the complainant and then he could claim the amount from the opposite parties. Act and conduct, deficiency in service and unfair trade practice on the part of the opposite parties must have caused him mental tension and harassment for which he deserves some compensation which we assess as Rs. 5,000/-.<br /> 13. No other point was urged before us at the time of arguments.<br /> 14. In the result, complaint is partly allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under : <br /> i) Pay Rs. 18,159/- to the complainant alongwith interest @9% P.A. from 13.7.07 till payment.<br /> ii) Pay Rs. 5,000/- to the complainant as compensation under Section 14(1)(d) of the Act<br /> Compliance of this order be made within 30 days from the date of receipt of copy of this order failing which the amount of compensation under Section 14(1)(d) of the Act would carry interest @9% P.A. till realisation. <br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 29-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> (Phulinder preet) <br /> Member<br /> 'iki' <br />