Orissa

Jajapur

CC/47/2019

Sri Anil Prasad Jena. - Complainant(s)

Versus

Sandhya Auto Motives. - Opp.Party(s)

R.L.Biswal,Ashok Ku. Biswal.

26 Jul 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, I/C President,

                                                                          2.Miss Smita Ray, Lady Member.                       

                                                      Dated the 26 TH day of July ,2021.

                                                      C.C.Case No.47 of 2019

Sri Anil Prasad Jena    S/O Prafulla kumar Jena  

Vill.Mahadevpur ,P.O. Khadianga  ,

 P.S. Balichandrapur ,Dist.-Jajpur.                                                                                      

                                                                                                                                ……....Complainant .                                                                       

                   (Versus)

1.Sandhya Auto Motives, N.H.-5 ,Near Cinema Hall Chandikhole   

At/ P.O. Chandikhole , Dt. Jajpur.

2. Shriram Transport Finance Co.Ltd, Near R.T.O,Office ,Chandikhole

Dist. Jajpur

                                                                                                               ……………..Opp.Parties.                                                                                                                                            For the Complainant:                Sri  A.K.Biswal,  R.L.Biswal, , Advocates.

For the Opp.Party: No.2             Sri P.K.Ray, A.R.Sethy, S.Devi,Advocates.

For the Opp.Party .No.1              None.

                                                                                                     

                                                                                            Date of order:  26.07.2021

 MISS  SMITA  RAY, LADY  MEMBER .                                                 

The petitioner has filed the present dispute alleging deficiency in service against the O.ps .

            The facts  as per complaint petition as stated by the complainant  shortly are that  the petitioner is an unemployed  for self employment  youth and to maintain his lively hood had  purchased  a Autto .  He had approached  the O.P.no.2 for loan facilities .Thereafter the O.P.no.2  sanction  a loan of Rs.2,25,000/ in faovur of the petitioner. In this contest the petitioner entered into an  hypothecation agreement  with O.P.no.2 .  As per agreement the loan amount  with interest shall be repaid   48 equal  EMI   each Emi  is fixed a sum of Rs 5,771/  .

That the petitioner has deposited a sum of Rs.60,000/-  as down payment before the O.P.no.2  for finance of the loan amount . The  petitioner registered   the alleged vehicle ( Auto)  before RTO, Chandikhole  bearing  Regd. No.OD-04H-7580.  The warranty period of the vehicle  is  2 years .The petitioner insured the vehicle before the Oriental Insurance  from  dt.7.6.16 to 06.6.17 and again insured the vehicle before the Shriram Finance  on dt. 06.06.2017 to 06.06.2018. . 

            That the petitioner running his vehicle  dt. 6.6.16 to 6.6,17 and  during that period   the body of the vehicle is totally  weak and not running condition . So  the petitioner informed the matter to O.P no.2  and the O.Ps  send  a  surveyor  and the surveyor took  a photo of the vehicle  of the petitioner The petitioner also paid EMI  to o.p.no.2 on dt. 6.3.17,1.7.17 ,1.07.17, 01.09.17, 25.11.,17 ,28.2.18 ad 9.3.18 through the body of the vehicle is totally  weak and the petitioner was not running  from dt. 06.06.17 .  The vehicle is laying near the house  of the petitioner . That the petitioner again and again  informed regarding his vehicle  difficulties to  the  O.Ps  but  the O.Ps   are not  paying  any heed to it  till yet.  Inspite of repeated reminder by the petitioner  the O.Ps. are not settled  the dispute . Accordingly finding no other alternative the petitioner knocked the door of this commission with the prayer  to direct the O.Ps  to exchange the vehicle and provide  a new vehicle or refund the Rs 60,000/- with 12 % interest and compensate him  Rs.60,000/ towards compensation for mental agony .

            After receipt  notice  the O.P.no.1 did not choose to contest the dispute . Accordingly this commission lost  every opportunity to heard from the side of the O.P.no.1 .Hence there is no option remain before this commission without setting  exparte the O.P.no.1. Accordingly this commission  vide order  dt.11.9.19  has  set exparte  the O.P.no.1 .

The O.P.NO.2 appeared through the learned advocate and subsequently filed their written version taking the  following stands.

            That the instant complaint as laid is not maintainable either in fact or  in law. That at the outset it is submitted that the instant consumer complaint is liable to be dismissed due to non-joinder of the parties. The allegation seems to be against either the manufacturer or the insurance company i.e Shriram General Insurance Co. Ltd,  and the said manufacturer / Insurance Co. are  not impleaded as parties  to the instant case . Either the complainant is ignorant about the distinction between the Shriram  Transport Finance Co. Ltd  and Shriram General Insurance Co.Ltd  or deliberately the  same has been made only to prevent the answering  the o.ps from realizing the loan dues .There are lot of confusions in the  assertions  made in the  complaint petition  .On this  score the consumer complaint is liable to be dismissed.

            It is further submitted that there is no cause of action to file the instant case against either of the parties, particularly against the O.P.no.2 .The complainant –borrower is plying the vehicle and  earning from the same, but not paying the installments. As on dt.25.06.2019 , the complainant is liable to pay arrear dues Rs.1,95,413/- excluding the future principal. Now the complainant has approached this commission  with a vague allegation that

“ the body of the vehicle is totally weak and not running condition ….. It does not reveal the exact allegation against any O.ps . Such vexatious petitions are liable to be dismissed at the thresh hold .

It is further submitted the dispute raised in this instant consumer complaint is fallacious and it has no connection with the loan agreement executed between the parties and reliefs sought for are  also not tenable in the eye of law. Therefore the instant case is not sustainable in the eye of law and accordingly the same is liable to be dismissed.

            The O.P.no.2  submits that this complaint is not maintainable as this learned forum has got no jurisdiction in respect of the subject matter of the alleged dispute in view of the facts that there is one “ Arbitration clause” and one territorial jurisdiction “ clause in the loan agreement no.CHNDIO606090001 dt. 10.06.2016 executed between the complainant and the O.Ps in which both the parties including the complainant have agreed that “ all disputes” differences and / or claims arising out of these presents or as to ……. Said agreement shall be settled by Arbitration to be held in Bhubaneswar in accordance with the provisions of the Arbitration and conciliation Act,1996. Similarly in clause no.16 of the loan agreement both the parties have agreed that

“ Bhubaneswar courts alone shall have exclusive jurisdiction in respect of any matter, claims or disputes arising out of or in any way…… Therefore the dispute raised in this complaint  has to be referred to the learned Arbitrator in terms of the aforesaid loan agreement in consonance with provisions, particularly section 5 and 8 of the Arbitration and conciliation Act, 1996. Thus the instant consumer complaint is not maintainable in the eye of law and on this score alone the consumer complaint is liable to be dismissed.

            In view of the aforesaid facts and circumstances the instant consumer complaint may kindly be dismissed U/S 26 of the C.P.Act,1986 with cost for being devoid of any merit.

On the date of hearing we heard the argument from the learned advocate of  both the sides.

 

After perusal of the  record and documents in details it is undisputed fact that the petitioner purchased the above Auto from O.P.no1 and the same was financed by  O.P.no.2 .

            After perusal of the complaint petition we did not came across with  a single line written in the complaint petition against the o.p.no.1 who is the dealer of the alleged vehicle or representative of the manufacturer .On the other hand the petitioner did not make a party i.e Shriram  General Insurance Co.Ltd who was the insurer of the alleged vehicle . Accordingly it is our considered view the stand taken by O.P.no.2 in their written version  is absolutely right .The petitioner fails to prove his case.

Hence this order

            The dispute is dismissed .  No cost.

This order is pronounced in the open Forum on this the 26th  day of  July,2021. under my hand and seal of the Commission .