BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.983/2011 against C.C.No.325/2010 District Forum-II, Hyderabad
Between
Md.Farooq S/o.Md.Mohiuddin
Aged about 30 years, Occ:Business,
R/o.H.No.4-3-130/9, D.No.186,
Attapur, Rajendranagar,
R.R.District. ..Appellant/
Complainant
And
M/s.IndusInd Bank Limited,
Rep. by its Manager,
3rd floor, Minerva House,
94, Sarojini Devi Road,
Secunderabad-500 003. Respondent/
Opp.party
Counsel for the Appellant : M/s.Md.Muneeruddin
Counsel for the Respondent : M/s K.Someswara Kumar.
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
TUESDAY, THE THIRTIETH DAY OF OCTOBER,
TWO THOUSAND TWELVE
Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in CC No.325/2010 on the file of District Forum-II, Hyderabad, the complainant preferred this appeal.
The brief facts as stated in the complaint are that the complainant purchased Ashok Leyland Tusker Super 2214/IS for self-employment purpose from Automotive manufacturers Private Limited for a total sale consideration of Rs.11,05,901/- and a sum of Rs.11,05,000/- was financed by the opposite party for 5 years, the EMI’s being Rs.27,500/- and the first instalment commenced from 21-11-2006. The complainant invested margin money of Rs.2,50,000/ for erection of body cabin and also paid Rs.32,000/- towards insurance and Rs.25,000/- towards registration. The complainant submits that the loan was to be repaid in 58 instalments but the opposite party included future insurance for second and third years in the loan amount and fixed the EMI at Rs.27,500/- whereas the correct EMI should be Rs.24,958/-. The opposite parties seized the vehicle on 27-9-2008 without issuing any notice even though the complainant was liable to pay only the current month instalment. The opposite party has levied 24% finance charge on over due instalment which was never agreed upon. The complainant submits that without fixing proper EMI, opposite party illegally seized the vehicle even though the complainant paid Rs.1,31,000/- as demanded by the opposite party. Even earlier on 23-7-2008 the opposite parties seized the vehicle without issuing any notice after which the complainant paid Rs.,131,000/-. The complainant took the statement of account from the opposite party on 15-2-2010 and was surprised to note that the subject vehicle was sold for a meagre sum of Rs.7,45,343/- in February, 2009 even though the market value is Rs.10,97,550/-. The said vehicle was used only 23 months between 12-10-20-06 to 27-9-2008 and a depreciation of 10% is calculated to arrive at Rs.10,97,550/-. After allocating the market value, the complainant submits that he is entitled for refund of Rs.3,07,000/- against the outstanding principal and interest as on date of seizure. The complainant filed the following table in support of his case.
TABLE A
MARKET VALUE OF SUIT VEHICLE AS ON 27-9-2008
| S.No. | Description | Amount |
| 1. 2. 3 4.. | Cost of the Chasis to suit vehicle Body cabin making charges etc. Total cost of suit vehicle Less: 10% Depreciation for Period i.e. Nov.2006 to Oct 07 (Being depreciation@10% per yr) Market value at end of First yr. Less:10% depreciation For period i.e. Nov.2007 to Sep 08 (being depreciation@ 10% per yr. AS ON 27-9-2008 | 1105000 1355000 1219500 121950 1097550 |
TABLE B
AMOUNT PAYABLE TO OPP.PARTY AS ON 27-9-2008
| S.No. | Description | Amount |
| a) b) c) d) | Principal sum Int. for 23 Months @ 6.2% flat i.e. 5709 Per month Insurance premium paid by OP on 1-9-2007 6.2% flat int. on Rs.32,000/- upto 21-9-2008 i.e. 1 year. TOTAL AMOUNT PAYABLE TO OPP.PARTY | 1105000 131307 32000 1984 ---------- 1270291 |
TABLE C
AMOUNT REFUNDABLE TO COMPLAINANT AS ON 27-9-2008
| S.No. | Description | Amount |
| 1) 2) 3) | Amount payable to Opp.party as per table “B” Less:Payment made to OP by complainant As per document No.27 which is prepared by OP Less:Market value of Suit vehicle as per table”A” Apply the parameters laid down in 1(2007) CPJ 200 AMOUNT REFUNDABLE TO COMPLAINANT Rs. | 1270291 575000 ---------- 695291 1097550 ----------- 402259 |
Hence the complaint seeking direction to the opposite party to refund Rs.4,02,259/- with interest at 18% p.a. from 27-9-2008 together with compensation of Rs.1,00,000/- and costs of Rs.10,000/-.
Opposite party filed counter stating that the complainant failed to pay the monthly instalments and as per the covenant of loan agreement, it was entitled to collect 24% additional finance charges in case the complainant failed to pay the EMI in time. It further submitted that it issued a notice on 18-11-2008 to the complainant to settle the outstanding amount including additional finance charges and other incidental charges failing which they would be forced to dispose of the vehicle but the complainant has not given any reply and therefore they have seized the vehicle only as per the terms and conditions of the loan agreement. It is specifically agreed by both the parties that in case any dispute arises, the matter would be referred to arbitration as per clause 23 of the agreement. The opposite parties invoked the arbitration clause and referred the matter to the learned arbitrator, Sri N.C.Vijayaraghavan, Chennai and an award was passed on 03-9-2009 directing the complainant to pay a sum of Rs.3,05,812 with interest at 18% p.a. from the date of award till the date of realization and that there is no deficiency in service on their behalf and that the Consumer Forum has no jurisdiction to entertain the complaint.
The District Forum based on the evidence adduced i.e Exs.A1 to A26 and B1 and B2 and the pleadings put forward, dismissed the complaint with a liberty to the complainant to pursue at an appropriate civil court.
Aggrieved by the said order, the complainant preferred this appeal.
At the outset, before we go into the merits of the case, we address ourselves to the point whether this Commission has jurisdiction to entertain this complaint and if the complainant falls under the definition of consumer. We rely on the Apex court in National Seeds Corporation Ltd., v. M.Madhusudhan Reddy reported in (2012) 2 SCC 506 wherein their Lordships held as follows:
“The remedy of arbitration is not the only remedy available to a
grower. Rather, is an optional remedy. He can either seek
reference to an arbitrator or file a complaint under the Consumer
Protection Act, 1986. 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 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 Act. Moreover, the plain language
of Section 3 of 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”.
The learned counsel for the appellant contended that they have not received any notice in the Arbitration case and therefore he did not participate in the proceedings and that the award dated 03-9-2009 is an exparte award and is not binding on the appellant. Keeping in view the aforementioned judgement, we are of the considered opinion that the appellant should approach the appropriate Forum/court with respect to his argument that the arbitration award should be set aside on account of non-receipt of notice.
With these observations, this appeal is dismissed on the ground that the Consumer Fora does not have jurisdiction to entertain this complaint as admittedly an arbitration award has already been passed on 03-9-2009. No costs.
PRESIDENT.
MEMBER.
MEMBER.
JM Dt.30-10-2012
