The present complaint filed U/s 12 of the Consumer Protection Act' 1986 (for short, 'the Act') by the complainant Manjit Kaur  prays for the necessary directions to the opposite parties to withdraw their illegal demand of alleged outstanding amount from her account amounting to Rs.13,02,663/- and opposite parties be further directed to make the payment of Rs.1,92,442/- in her favour alongwith interest @ 18% P.A. from the date of due till its actual realization and to issue NOC qua the vehicle in question as nothing is outstanding against her qua the financed amount. Opposite parties be further directed to pay Rs.50,000/- for physical harassment and mental agony and litigation expenses, in the interest of justice.

 2.      The case of the complainant in brief is that her husband namely Paramjit Singh has purchased a Truck Trolla TATA LPT 2518 CUMMINS FBT in her name bearing Registration No.PB-06-Q-3358 and the said Truck Trolla was financed and insured by the opposite party no.2 from the opposite party no.4.   The said vehicle in question met with road accident thrice and all the times the opposite parties no.1 and 2 have got the accidental claim of the said vehicle in question, but no amount is being paid to them, as the entire expenses have been paid by her husband from his own pocket and the opposite parties assured that the said amount which they have received from the opposite party no.4 would be adjusted in her loan account. Even she has also deposited the instalments of the said vehicle to the opposite parties. Thereafter, her husband went abroad for earning his livelihood and she approached to the opposite party no.1 and 2, who allured to her that approximately entire finance amount has been received by them since they have received huge amount from the opposite party no.4 three times on account of road accident and if she would hand over the Truck Trolla to them, then they will sell it and they will pay the amount which they received in excess to her. She came into the talks of the opposite parties no.1 and 2 and as such she handed over the said vehicle to the opposite parties no.1 and 2 in the month of October 2014. At that point of time, there was an amount of Rs.5,77,558/- outstanding against her qua the outstanding financed amount and as stated above she has handed over the possession of the abovesaid vehicle in question to the opposite parties and they have openly told her that they will sell the vehicle in question and they will deduct the outstanding amount from the selling price of the vehicle and afterward will make the payment of excess amount which they derived from selling the vehicle in question. The vehicle in question was got repaired by her from his own pocket and an amount of Rs.1 lac approximately has been spent by her from her own pocket. Even the opposite parties also have received Insurance claim of the vehicle in question. Since the very day of taking possession of the vehicle in question by the opposite parties from her, there was no outstanding amount against her, since it has been settled between the parties as stated above. Afterward in the month of December 2014 the opposite parties have also sold her vehicle in question for the sum of Rs.7,70,000/-. Even the opposite parties no.1 to 3 have also received Insurance claim from the opposite party no.4 and she is not making demand of Insurance claim from them. But instead of making payment of Rs.1,92,442/- in her favour, the opposite parties are making demand of Rs.13,02,663/- from her. This illegal act on the part of the opposite parties is altogether illegal, wrong, against the rules and regulations, which is deficiency in service on the part of the opposite parties. Hence this complaint.

 3.       Upon notice, opposite party no.1 to 3 appeared and filed their joint written reply through their counsel taking the preliminary objections that the complaint is not maintainable; the jurisdiction of this Ld.Forum is barred to the complainant as the complainant is using the vehicle in question for commercial purpose and earning profits only; the complainant has not come to the Ld.Forum with clean hands and has filed this false and frivolous complaint against the opposite parties with an ulterior motive to delay the payment of the due loan instalments as such the complainant is liable to pay the exemplary costs for this illegal act and the complainant has no locus standi to file the present complaint against the opposite party. On merits, it was submitted that the complainant had herself surrendered her vehicle to the opposite parties for organizing the open auction for adjusting the sale proceeds of the vehicle in question in the loan account of the complainant. She has also agreed to pay the remaining loan amount and interest thereon after adjusting the sale proceeds of the said vehicle. The vehicle in question was sold in the open auction in the presence of the complainant with her consent to the highest bidder for amount of Rs.7,16,048/- which was adjusted in the loan account of the complainant, but the complainant had not paid the rest of the loan amount to the opposite parties inspite of the repeated requests. Now an amount of more than Rs.12,67,036/- is still due against the complainant upto 4.12.2015 plus further interest and other livable charges and the complainant is liable to pay the same. Earlier the complainant has also filed a complaint before this Ld.Forum which was dismissed as withdrawn on 3.2.2016. Now the complainant has again filed the present complaint only to delay the due loan instalments and by concealing the true facts from this Ld.Forum. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

4.         Upon notice, the OP no.4 appeared and filed its reply through its counsel taking the preliminary objections that the complainant has no cause of action to file the present complaint; there is no deficiency in service on the part of opposite party. On merits, it was submitted that the fact regarding allurement by the finance company is having no link with the opposite party. The fact regarding the payment and receiving of excess money are denied for want of knowledge as the matter is between the complainant and finance company. The fact regarding the taking possession of the vehicle is also relates to the finance company and not with the opposite party. All other averments made in the complaint have been vehemently denied and lastly, the complaint has been prayed to be dismissed with costs.

5.    Complainant tendered into evidence her own affidavit Ex.C1 and of Sh.Puran Singh Ex.C-2, alongwith other documents Ex.C3 to Ex.C8 and closed the evidence. 

6.       Sh.Satish Kumar Retainer Advocate tendered into evidence his own affidavit Ex.OP-1 to 3/1, alongwith other documents Ex.OP-1 to 3/2  and Ex.OP1-3/3 and closed the evidence.

7.     Counsel for the opposite party no.4 tendered into evidence affidavit of Sh.Arvind Sharma Legal Officer Ex.OP-4/1 and closed the evidence.  

8.        We have thoroughly examined the available documentary evidence as produced on records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants in the back-drop of arguments duly put forth by the respective learned counsels for the present contestants. We find that the present dispute had arisen on account of the OP financers’ refusal to refund the surplus sales proceeds (Rs.1,92,442/-) of the surrendered (financed) Truck and instead putting forth its arbitrary demand (Rs.13,02,663/-) Ex.C6 as balance outstanding amount.

9.       We however find that the OP financers have in turn alleged the outstanding balance to be at: Rs.12,67,036/- as per the Loan A/c statement (Ex.OP1to3/3) that somehow exhibit the deposited repayments along with the late payment & other penal charges etc. The variances between the ‘2’ above loan statements have been somehow ignored to be explained. The details/ agreement of Vehicle Loan, its repayment and its arrears etc have neither been produced by the complainant nor have the same been provided by the OP financers for reasons best known to both of them, alone. We can understand the non-availability of loan security documents with the subserviently positioned complainant but its non-production on complaint-proceedings (by the OP financers) does raise scope of an adverse discretional judicial view.    

10.     However, it be reduced to writing that the OP financers have failed to produce some cogent evidence to prove its ‘bald’ claims of arrears outstanding in the complainant’s loan a/c and also its ‘bald’ defense of ‘commercial purpose’. Further, the present remedy as availed under the CP Act, 1986 being an alternative/ additional remedy by virtue of its section ‘3’ shall be duly available even at the face of an otherwise accepted ‘arbitration’ agreement. Moreover, the arbitration award Ex.OP1to3/2 dated 23.02.2016 has been first produced on the records on 21.09.2016 with no mention of it in accompanying affidavit & written statement filed on 14.07.2016 in which ‘arbitration arrangement’ does find a mention but not its award and/or even invocation proceedings etc. Moreover, the award-exhibit is simply a photocopy (not even an attested/certified copy) with its ‘doctored’ date and thus fails to attract authenticity.   

11.     Lastly, in the light of the all above, and the litigants’ exhibited display of non-rebuttal of the un-pressed allegation of receipt of ‘3’ nos. of insurance claims   to reach a somewhat acquiesced situation, we are of the considered opinion that the present complaint shall be best disposed of by  directing the OP financers to set-aside its arbitrary demands of balance loan amounts and instead pay claimed amount of Rs.1,92,442/- to the complainant within 30 days of receipt of the copy of the present orders otherwise the payable amount shall attract interest @ 9% PA from the date of receipt of the sales proceeds of the ‘surrendered’ Truck till actual payment. The parties shall however bear their own expenses, here. 

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

              (Naveen Puri)

                                                                                   President   

Announced:                                                        (Jagdeep Kaur)       

October,19 2016                                                        Member

*MK*