Date of filing:-17/10/2013.
Date of Order. 10/05/2017.
BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM(COURT)
B A R G A R H.
Consumer Complaint No. 47 of 2013.
Ashok Patra S/O Baishnaba Patra aged about 40 yrs, occupation –Cultivation,R/O- Kendpali,P.O.Chakerkend,P.s/Tahasil/-Dist-Bargarh ..........Complainant.
-:V e r s u s :-
1) Sriram Transport Finance Company, Ltd,101-105 shiv chamber 1st floor, B wing Sector-11.C.B.D.Belpur.Navi Mumbai-400614.
2) Sriram Transport Finance company, Hari Gouri Vihar,Near Bikash Pump,Ainthapali, Sambalpur.
3) Deep Jyoti Motors,Ltd Akash Deep Tower,N.H-6 Gopalpali chowk. P.O. Remed. Dist.sambalpur (odisha) Authorised dealer of PIAGGIO.
4) PIGGIO Vehicle Pvt Ltd,SKY ONE,8TH Floor,S.No.210,Final Plot no72 Town Planning Scheme,Yerwada No.1 Kalyan Nagar,Pune-411006.
…………Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri M. Bhoi Advocate with others Advocates.
For the Opposite Parties :- Sri S. Mishra Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.10/05/2017. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief facts of the case ;-
In accordance with the provision envisaged under the Consumer Protection Act 1986 u/s 12, the complainant has preferred to file the complaint against the Opposite Parties thus as follows, that on persuasion with one Agent of the Authorized dealer Opposite Party No.2(two) namely Rajendra Meher of Burla the Complainant has obtained a loan amounting to Rs.1,89,700/-(Rupees one lakh eighty nine thousand seven hundred)only from the Opposite Party No.1(one) and No.2(two) and was made to enter upon an agreement and was also, on their persuasion signed a lot of papers with the Opposite Parties on being persuaded by the said agent of the Opposite Parties for purchasing an Ape truck to earn his livelihood with a very simple terms and condition as explained to him by the agent of the Opposite Parties by paying an amount of Rs 54,000/-(Rupees fifty four thousand)only as down payment agreeing upon to pay installment @ Rs.6,164/-(Rupees six thousand one hundred sixty four)only per month in 47 installment from Dt. 05.03.2010. to Dt.05.01.2014. against that he was supplied with an Ape truck from Opposite Party No.3(three) vide it’s regd No. OR-15-B-1060. It is also pertinent to mention here that against such loan the complainant has issued some post dated pre-signed cheques in favor of the Opposite Parties.
But just after one months of such supply of the said vehicle it started giving mechanical trouble in it’s gear frequently for which he could not run the same as such surrendered the same before the Opposite Party No.2(two) resulting to defaulter of his repayments of the installment of the loan, regarding which he has brought to the notice of the Opposite Parties through the said agent and personally too but to no effect excepting assurances given to him by the Opposite Party No.3(three) to replace him with a new one as replacement , but till yet has not materialized and also his said cheques which he had issued in their favor has neither utilized in encashing the same against his said loan amount nor returned to him even after several reminder time to time.
The further case of the complainant is that even if the Opposite Parties have assured him to replace the said vehicle neither replaced nor had repaired the same causing much hardship to him in repaying the loan amount and in maintaining his family for which he had fetched the said loan and has purchased the said vehicle which as per him amounts to deficiencies in rendering service and un-fair trade practice on the part of the Opposite Parties for which he is entitled for compensation to the tune of Rs.5,00,000/-(Rupees five lakh)only and for a new vehicle of same specification. In support of his such claim he has given evidence in shape of his own affidavit and also has relied upon some following documents.
Xerox copy of repayment schedule.
Telegraph regarding surrender of the Vehicle sent by Opposite Party No.2(xerox copy).
Sale notice Dtd 13.04.2011 issued by Opposite Party No.2(two).
Advocate notice sent by the complainant to all the Opposite Parties on Dtd 31.05.2013.
Two Xerox copy of letter sent to the Opposite Party No.2.on Dtd 5.06.2012 & Dtd 4.02.2013.
The case was heard, referred the documents filed on his behalf and the same was admitted and notice were served on the Opposite Party No.1(one)to No.3(three) initially and subsequently the opposite party no-4 has been added by way of amendment and noticed thereafter.
On being noticed the Opposite Parties appeared but did neither filed any version nor took any steps as a result of which they were set ex-part but subsequently the same order for ex-party hearing was set aside their version were accepted on Dt. 24.11.2014 wherein their version is a total evasive one to the case of the complainant rather on the contrary they have raised the question of maintainability of the case in the present Forum on the ground of limitation and on the points of territorial jurisdiction and also claimed that the said vehicle was purchased for commercial purpose and in view of the insertion of the clause of Arbitration and have alleged to have defaulted in repaying the loan amount of Rs.2,91,263/- (Rupees two lakh ninety one thousand two hundred sixty three)only in 47(forty seven) installment from Dt. 05.03.2010 to Dt.05.01.2014 against his loan amount of Rs.1,89,700/-(Rupees one lakh eighty nine thousand seven hundred)only. And in furtherance to their case they have contended that since he has only paid only an amount of Rs.42,670/-(Rupees forty two thousand six hundred seventy)only on Dt.04.12.2010 and defaulted in repaying any further amount they have right over the said vehicle to repossess and sale, and accordingly sold away the same for an amount of Rs.69,000/- (Rupees sixty nine thousand)only and also claimed an amount of Rs..1,74,752/-(Rupees one lakh seventy four thousand seven hundred fifty two)only till Dt. 13.09.2011 for which they claimed to have referred the matter to sole Arbitrator which is pending before him vide case no-502/2013. And as such denied to have committed any deficiencies in rendering service to the Complainant on their part since when ever the complainant has brought the vehicle to them they have taken utmost care to repair the same to the satisfaction of him and never have charged for any parts or service excepting the costs of lubricants, and the same has been replied in their reply to the notice sent to them by the advocate for the complainant on Dtd 31.05.2013.and also alleged to have filed a case before the S.D.J.M. Sambalpur vide no-250 of 2010 against the bouncing of cheque given by the complainant which is still pending for disposal. Hence prayed before the forum to dismiss the case .
In support of their case have filed the copy of the loan agreement entered in to by both the parties,the registered notice sent to the complainant (1sheet), Xerox copy of refusal of the regd notice by the complainant(1 sheet), Xerox copy of the Arbitration Award (5 Sheet).
Along with their respective claim and counter claim of both the parties their learned counsels have filed their respective notes of arguments along with some citation of different legal Authorities in their respective support.
Having gone through the pleadings of both the parties and their respective documents and after hearing Advocates for them, it came to our notice that certain deciding points on facts and laws are there as follows for proper adjudication of the case .
Firstly whether the case is barred by limitation in view of time of filing the case and from territorial points of view.
Secondly whether the complainant is a will-full defaulter in repaying the loan amount.
Thirdly whether the o.ps have caused deficiencies in rendering service to the complainant or have committed un-fair trade practice against the complainant.
Fourthly whether the award passed by the Honourable Arbitrator is bar to adjudicate the case in the present Forum.
Fifthly whether the complainant is entitled to any compensation and relief as sought for by him.
While deciding the first point of determination , that whether the case is maintainable before the Forum in view of territorial jurisdiction and for time factor in filing the case, it came to our notice that the complainant has repeatedly made averment of the presence of an agent of the Opposite Party No.2(two). In pursuing him for purchase of the said vehicle and arrangement of loan given to him by the Opposite Party No.1(one)& No.2(two), and in support of his such claim the complainant has given his own evidence in shape of affidavit sworn in by him to which neither parties have acted upon to counter nor the Opposite Parties have ever denied to have such agent working on their behalf working for them as such we don’t have any other option than to consider the same to be true as such in our view the Opposite Party No.2(two) & No.3(three) are carrying their business within the jurisdiction of the present forum in as much as the continuation of exchange of discussion and reply and counter reply by the parties till the Dt.31.05.2013. has brought the time of filing of the case before the Forum within the limitation since the view laid down by the apex court of the country that the cause of action stands by the bundle of facts but not by a single date or incident create a cause of action thus our views regarding the jurisdiction with respect to the territory and time limits for filing of the case goes in favor of the complainant and answered accordingly.
Secondly while dealing with the question, whether the complainant is a will-full defaulter in repaying owing on him, we verified the pleading and documents filed by him and after hearing his advocate we found that on being persuaded by the said agent of the Opposite Party when he felt that such a lucrative offer as described by the agent could give rise to his living standard by earning from plying the vehicle for which he could venture to deposit such a big amount of Rs.54,000/-(Rupees fifty four thousand)only as down payment and agreed to pay the installment fixed on him but to his ill-luck from the very beginning after just one month of being handed over the vehicle to him, it started giving mechanical trouble for which he ran to the Opposite Parties personally and through the said agent for getting service to get the vehicle repaired or to get replaced so that he could repay the loan amount too, and to earn some thing to earn his livelihood but neither could be possible except some false assurances from them to replace till Dt. 13.09.2011 when he came to know that his said vehicle has been sold away by the Opposite Parties for Rs.69,000/-(Rupees sixty nine thousand)only without giving him prior notice and in stead sent a letter from their end demanding an amount of Rs.1,74,752/-(Rupees one lakh seventy four thousand seven hundred fifty two)only as due on him which in our view violates the principle of natural justice as being saddled with extra service charges further emburdening him. As such in our view the complainant is not a will-full defaulter in repaying the loan amount and answered accordingly in his favor.
Thirdly while dealing with the points as to whether the Opposite Parties have been deficient in giving service to the complainant and playing unfair trade practice against him ,as we have already discussed in our forgoing paragraph, that the complainant had purchased the vehicle in question with much interest being tempted by the words of the said agent of the Opposite Parties that he could earn his livelihood by the same and also agreed to fetch a loan against the same by paying his hard earned money amounting to Rs.54,000/-(Rupees fifty four thousand)only which is not a small amount for a rustic farmer of a village but to his ill-luck the same started giving mechanical trouble resulting to such episode of the cases, and in such circumstances as were informed of the same by the complainant it should have been the primary duty of the Opposite Parties to show him good gesture by giving his prime facility to get the vehicle repaired immediately or if not possible to repair then get it replaced soon to enable him to earn his livelihood and repaying the loan as well, but in stead of that the o.ps did nothing except giving him assurances to replace till Dt.13.09.2011. and emburdening him by asking for repayment of the rest amount saddled with an unreasonable amount of interest and service charges, which in our view goes against the principle of natural justice in view of the purpose of the very enactment of the Consumer Protection Act 1986. As such our views are answered in favor of the Complainant.
Fourthly while dealing with the question as to whether the award passed by the Arbitrator bar the jurisdiction of the consumer Forum to adjudicate the case. In this context with much regard and utmost care we verified all the angel presented before us through the record and found that the present case has been filed on Dtd 17.10.2013., much prior to the award of the Honorable Arbitrator i.e on dtd 30.06.2014., as such the citation referred by the learned counsel for the Opposite Parties with respect to the citation of the Honorable N.C reported in 2006 (3) 339 is in a different footing which in our views is not similar to the present case further more he has not been properly noticed by publishing in a widely circulated daily oriya news paper if he did not turned up to appear but instead the case has been decided by the Hon'ble Arbitrator in ex-parte against the Complainant. Hence in our Humble view such decision of the Honourable Forum is not applicable to the present case and not binding on him, besides that he has referred some other citation to prove his case against the complainant but having gone through the same found that those citation are not applicable to the present case, and In furtherance to our such view the Honorable N.C. has given liberty to the consumer forum with a clear term that the mere insertion of the arbitration clause in the agreement can not oust the jurisdiction of the C.P.Act 1986 and it’s application reported in ‘’2008, 2010(1) C.P.C 448& 2010(3) C.P.C.133 N.C.wherein The Honorable National Commission have held that mere insertion of the Arbitration clause in the agreement does not oust the Jurisdiction of the C.P. Act 1986 And also have held in 2014(3) CPC 76 mere pendency of any litigation between the parties is no bar to consumer jurisdiction in view of Section 3 of the C.P.Act which provides an additional remedy. Hence our views with regard to the jurisdiction of the consumer forum is answered in favor of the complainant. As it is maintainable in the Forum.
Fifthly while dealing with the question as to whether the complainant is entitled to any compensation as sought for by him, since in the foregoing paragraphs we have already discussed the case at length from every angel of the same and have expressed our views in favor of the Complainant obviously here also our views goes in favor of the complainant as it has been observed by us from the version of the Opposite Party No.3(three) that he has admitted therein that in several occasion the Complainant has brought the same vehicle to him and all the time he has been served with proper care to his satisfaction in repairing the same, so while he has admitted that the vehicle was giving mechanical trouble as per the pleading of the Complainant but on the other hand has failed to file any notes of the satisfaction of the complainant in their service to substantiate his contention of the satisfaction of the complainant in their service as such have squarely failed to prove their case against the complainant as per their version as, if they would have rendered him with proper service in repairing or replacing in case of not being possible to repair then the complainant could have ply the same for which his very purpose in fetching the loan for purchasing the vehicle would have been served and also could have repaid the installment in time, as such have failed to render proper service to him, in the result our views goes in favor of the complainant that he is entitled to compensation for which all the opposite parties are jointly and severally liable. Hence order follows.
O R D E R
Hence the opposite parties are directed to hand over the complainant with a new vehicle of the same model and same specification with the same loan on the down payments made to them by the complainant with same term and condition with a reasonable rate of interest as prescribed by the Reserve Bank of India and in that case the complainant will pay the interest up to the date of his possession over the same as enumerated in the complaint and the Opposite Parties are further directed to pay an amount of Rs.20,000/-((Rupees twenty thousand)only as compensation towards his mental agony and harassment caused to him by the action of the Opposite Parties, and also directed to return all the un-utilised cheques of the complainant to him, All this direction would be carried out by the opposite parties within 30(thirty) days from the date of pronouncement of the same for which all the Opposite Parties are jointly and severally liable, in default of which future course of action as per the provision of the Consumer Protection Act 1986 would be taken against them in the result the compliant of the complainant is allowed against the Opposite Parties
Accordingly the order is pronounced in the open forum to-day i.e on Dt.10.05.2017 and the case is disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree, ( Sri Krishna Prasad Mishra)
P r e s i d e n t.
(Sri Pradeep Kumar Dash) ( Ajanta Subhadarsinee)
M e m b e r. M e m b e r (W)
