Date of filing :-07/12/2012

Date of Order :-10/05/2017

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)

B A R G A R H.

Consumer Complaint No.45 of 2012.

Bharat Sahoo S/o Gajendra Sahoo, aged about 60(sixty) years occupation –Cultivation, R/o-vill-P/o-Birmal , P.s/Munsif/Dist- Bargarh… …… ..... Complainant.

-: V e r s u s :-

1. Sriram Transport Finance Ltd 101-105 Shiva Chamber, 1^st floor, Wing Sector-11 C.R.D. Belpur Navi Mumbai - 400615.

2. Sriram Transport Finance Company, Hara Gouri Vihar Near Bikash Pump, Ainthapali, Sambalpur (odisha).

3. Deep Jyoti Motors, Authorised Dealer of PIAGGIO Vehicle Private Ltd, Akash Deep Tower , P.H.C. Gopalpali Chowk, P.o. Ramed, Dist- Sambalpur(Odisha).

4. PIAGGIO Vehicle Private Ltd, “SKY ONE”, 8^th Floor S.No.210, Final Plot No-72, Town Planning Scheme, Yerwada No.1, Kalyani 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 Fact of the case;-

The case of the complainant in brief is that in pursuance of one agent of the Opposite Parties namely Chaturbhuja Sahu S/o Shyam Kumar Sahu of villege Khaliapali P.o.Saipali Via Bijepur,Dist- Bargarh he had purchased a Piaggio Ape Truck from the Opposite Party No.3, the authorized dealer of the company the Opposite Party No.4(four), being financed by the Opposite Party No.1(one)&No.2(two) to earn his lively hood. And in consonance with all the said Opposite Party No.1(one) &No. 2(two) Chaturbhuja Sahu made him convince to sign on a voluminous documents with out conveying him the details of the contents of the same and also at his instance the complainant made a down payment of Rs.68,000/-(Rupees sixty eight thousand )only and there after the said vehicle was handed over to him Vide Regd No. OR-15N-3844, chassis No. NBKL-745707 & Engine No. EE08K-9054635, for worth of Rs.2,45,500/-(Rupees two lakh forty five thousand)only on dtd 29.06.09, and as per the agreement to his knowledge he had been paying Rs.6,475/-(Rupees six thousand four hundred seventy five)only as E.M.I. and was plying the vehicle but just after two months of such purchase,the same started giving trouble and falling break down frequently, about which the complainant has repeatedly complained before the Opposite Party No. 3(three) through the said Chaturbhuja Sahu and also himself personally repeatedly to the said Opposite Party No.3(three), but to no effect as a result of which the vehicle lied in the garage for more time than in running, consequent upon which he could not repay the said E.M.I for some time and intimated the same to the Opposite Parties, but instead of giving him proper service to enable him to run the same they taken over the possession of the same force-fully on Dt.08.05.2010.

Being helpless the complainant repeatedly requested the Opposite Parties to hand over him the vehicle after making necessary repair so that he could run the same and could be able to repay their loan amount timely but they did not bother to act accordingly,Rather on Dt.16.06.2010 they gave him a notice to sale away the same thereby causing unfair trade practice and deficiency in rendering proper service causing much hardship both mentally, physically & financially to the complainant.

Most pertinently the allegation of the complainant is that the Opposite Parties did not return 12(twelve) numbers of post dated cheque of Union Bank of India which he had issued in their favor against repayment of the loan amount nor delivered his said vehicle by encashing the loan amount proportionately but all the time they were giving him false assurance, so seeing no other alternative sent a pleader notice to which also they did not bother thus the complaint has filed this case before the Forum praying therein to give a direction to the o.ps to hand over him the said vehicle with proper repair or to replace the same with a new one ,and also claimed for a compensation physical, mental harassment and financial loss. It is pertinent to mention here that he has amended some portion of his complaint and also added the Opposite Party No.4(four) as necessary party as the manufacturer of the retailer of the vehicle which was allowed by the Forum and accordingly amended complaint is filed. And in support of his case the complainant has relied on some documents as mentioned below in details. And has prayed before the Forum for compensation amounting to Rs.1,00,000/-(Rupees one lakh)only and for a direction to return his blank cheques of the Union Bank of India, further praying therein for a direction to provide him with a new vehicle of the same specification.

1. Retail invoice issued by the Opposite Party Deep Jyoti Motors on dt-29.06.2009.

2. Challan No-DJM 324 Dt-29.06.2009.issued by the Opposite Party Deep Jyoti Motors.

3. Payments schedule.

4. Pleader notice with postal receipt bearing no- 3111,3112,3113,3114.

5. Original customer copy of receipt of payments made to the Opposite Parties vide dtd 31.09.2009 for Rs.6,475, dt-20.07.2009, Rs.5,000/- Dt-20.07.2009, Rs.6,500/-, Dt-23.02.2002010, Rs.1,000/-, Dt-24.02.2010. Rs.1,000/- dt-29.06.2009, Rs.5,000/-, DT-1.06.2009. Rs.17,000/-and on the same slip on the same dt Rs.30,000/-,Dt.25.02.2009.Rs.7,000/-and through the S.B.I Account of the Opposite Parties dt-18.03.2010 Rs.8000/-, Dt-20.10.2009 Rs.6500/-,dt-21.09.2009.Rs.5,000/-,Dt-20.05.2009 Rs.23,000/-.

On hearing the counsel for the complainant and having gone through the materials available on record the case was admitted and notice was served on the Opposite Parties. And on being served with the notice by the Forum on dt-19.03.2013. the Opposite Party No.2(two) appeared and later on other Opposite Parties appeared and filed their respective version jointly and individually by Opposite Party No.1(one)& 2(two) jointly and Opposite Party No.3(three) & 4(four) individually in a very late i.e on Dt-03.12 2013. However if we take of the version of all the Opposite Parties conjointly, it is all evasive to the claim of the complainant with some additional allegation against him that the Forum has got no territorial jurisdiction , further since the complainant is agreed upon the agreement entered in to by him at the time of execution of the same,and even then as he has defaulted in making the repayment of the loan in time, he is debarred from filing the present case and that, is liable to be dismissed ,Further they have denied the loco standi of the case since the complainant has agreed upon the appointment of Arbitrator in case, any dispute arises in between the parties relating to the case then the same would be reffered and would be decided by him. And in their support have filed the following documents

1. pre seizure intimation to the Sadar PS on dt8.05.2010.

2. post seizure intimation to the complainant on 5.06.2010 with A.d

3. Sale notice dt-16 .06 2010.with A.D.

4. Reference of Arbitrator dt 10.12.2012.

5. Arbitration Award (9/12 dt 15.01.2014.

Having gone through the complaint, the documents and the affidavit of the complainant and coming across the oral and written argument of their respective counsel and the version, documents ,the copy of the order of the Honourable Arbitrator appointed by the o.ps some points as follows have cropped up for adjudication of the case.

1. Whether the complaint lacks territorial jurisdiction of the present Forum.

2. Whether there is any deficiencies in the service of the Opposite Parties or have committed un-fair trade practice against the complainant.

3. Whether the filing of the matter before the Honorable Arbitrator can oust the right of the complainant provided under the C.P.Act 1986.

4. Whether the complainant is entitled for the relief as has been sought for by him.

While dealing with the question of the territorial jurisdiction of the forum, it reveals from the record and the strong plea taken by the complainant that a nearby villager of his village is the agent of the Opposite Party No.3(three), carrying out his business through him namely Chaturbhuja Sahu as mentioned above persuaded him for the vehicle to improve his financial livelihood and helped him arranging the financer for the purpose and helped him in the documents session with Opposite Parties, also it is seen in such affairs such agents are commonly play a link between the parties in negotiating such deal to which none of the Opposite Parties has ever denied as such it can not be discarded in this case, further the financial link of the Opposite Party No.3(three) has taken place through the encashment of cheques of the complainant through the Union Bank of India, Bargarh Branch by the Opposite Party No.3(three), further the vehicle in question has been re-possessed by the Opposite Parties from the possession of the complainant from Bargarh district forcefully hence the part of cause of action has arisen within the jurisdiction of this forum ,As such it is answered accordingly in favor of the complainant.

While dealing with the second points for determination ,it reveals from the record that the vehicle in question was delivered to the complainant on his down payment of Rs.68,000/-(Rupees sixty eight thousand)only and agreed upon the agreement prepared by the Opposite Parties and made the complainant to enter in to the same with out explaining the details of it knowing well that he is a rustic villager and it is not possible on his part to understand the same which can be inferred from the conduct of the o.ps in not filing the copy of the same before the Forum,further it is evident from the record about the way how the Opposite Parties have dealt with a poor rustic consumer as the vehicle was delivered to him on date 20.07.2009 though as per invoice it was sold on Dt.29.06.2009 vide challan no Djm/324 for an amount of Rs.2,45,500/-(Rupees two lakh forty five thousand five hundred)only and an amount of Rs.6,475/-(Rupees six thousand four hundred seventy five)only as E.M.I was fixed on him for a period from Dt.20.07.2009.to Dt.20.05.2018. and to that the complainant was repaying but just after two months of such delivery of the vehicle, it started giving trouble and could not run properly which he intimated to the Opposite Parties but they did not take proper care as a result of which he could not repay the same E.M.I for some time , this allegation can be believed to be true as the Opposite Parties have failed to file the acknowledgment note of his satisfaction if endorsed by the complainant though the Opposite Party No.4 (four) have categorically admitted in it’s version that for many times he has come to them with different trouble with the vehicle but all the time they have rendered sufficient service to his satisfaction, also it is evident from the record that the complainant has not been noticed either in connection with the repossession or for resale of his said vehicle as there is no paper to substantiate their claim that they have given prior notice and post sale notice to the complainant excepting the copy of the said information were given to the police, later on filed before the Forum which clearly proves the attitude of the Opposite Parties which amounts to deficiencies of service and unfair trade practice against the complainant. Hence it is answered accordingly in favor of the complainant.

Thirdly with regard to the points of determination as to whether the filing of the matter before the Honorable Arbitrator can oust the right of the consumer provided for the protection of the consumer under the consumer protection Act 1986,while dealing with the vital question of such Law, we very carefully verified the documents available in the record and it came to our notice that,though such an agreement of insertion of Arbitrator is there as avered by the Opposite Parties in their version but to that effect they have not filed a scrape of paper,secondly it is found from the record that the Opposite Parties have alleged in their version that due to the intentional default of the complainant they have resorted to the proceeding but on the contrary their documents filed before us shows that they have seized the said vehicle on dated.08.05.2010, but they have given pre-seizure information to the police on dtd. 08.08.2010, not to the complainant which clearly shows their malafide intention Also it clearly reveals from the payment schedule of the complainant that the complainant has paid a considerable amount till dt-24.02.2010, which shows his intention of repayment but due to the mechanical trouble of the vehicle and the deficiencies in rendering proper service to him by the Opposite Parties, he could not pay in time consequent upon which on Dt.08.05 2010 just after two months of his last payment, the Opposite Parties have taken away the vehicle from the complainant arbitrarily without giving an opportunity and emburden him with a counter claim of such an heavy amount by putting service charges @ 30% which is violative of principle of natural justice and unreasonable one.

In furtherance to our verification it came to our notice that the Opposite Parties have filed the case before the Arbitrator Honorable justice in the year 2012 but much prior to that they have already taken action against the complainant of their own and have already seized the same vehicle and later on sold the same in question ,now the question is what prevented them to proceed to the Honorable Arbitrator at the initial stage when the dispute among them arosed ,thus it clearly shows the ulterior motive of the Opposite Parties to approach the Honorable Arbitrator by suppressing the materials fact,further more with out intimating the same to the complainant,taking advantage of his innocency.

Again to our knowledge, the document filed by the Opposite Party on Dt. 05.06.2010, on the heading as the After Repossession letter wherein they have claimed Rs.33,799/-(Rupees thirty three thousand seven hundred ninety nine)only with an instruction to deposit the same amount within seven days with them to release the said vehicle or else they would sale the same. Which clearly shows that the complainant has already re-paid the rest amount which they have suppressed before the Honorable Arbitrator to obtain an order as per their suitability. Further more as the complainant was not noticed to appear before the same and put forth his grievance. As a result the Opposite Party could take advantage of his absence to a large amount of Rs.1,93,306/-(Rupees one lakh ninety three thousand three hundred six)only with out any basis in an Ex-Party order.

More over the complainant has filed the present case before the consumer forum because he was ignorant of the insertion of the Arbitrator in their agreement and the Ex-party order passed against him, as we have already discussed in the fore going paragraph that he is a very rustic villager & was made to sign on the agreement if at all it is there with out reading and explaining him the contents of the same by the Opposite Parties More over the complainant has approached the present Forum much prior to the matter was referred to the Honorable Arbitrator and the order of the same in view of such circumstances the citation fled by the Opposite Parties during the course of their arguments such as 2012 NCJ 846, N.C.2015, NCJ 58 NC2006 (3) CPR 339 N.C and the decision of the Honourable Supreme court in civil Appeal no 1560/2004, are not applicable to this case in hand as it is a case which is filed much prior to the decision of the Honourable Arbitrator and it has been clearly fortified by those Honorable authorities that no case can be maintainable before the C.P. Act if it is filed after the award has been pronounced by the Arbitrator but in this case the case is filed much prior to the award of the same Authority and furthermore with out the knowledge of the complainant which is clearly revealed from the delay in filing the version of the o.ps before the Forum though they have appeared on Dt. 19.03.2013 but have filed their version on Dt. 03.12.2013 knowing very well that the cases are taken of in a summary procedure. Hence those decision are not applicable to the present case.

Further more the presence of role of arbitrator in any agreement does not oust the jurisdiction of the consumer protection Act 1986, specially because of the purpose of the enactment of the act i.e, enacted only to protect the interest of the consumer from the un-fair trade practitioner and from deficiencies of service by those un-fair trader,because it is in addition to any other Law for the time being in force but not in derogation of the same in view of section 3 of the act.our such view has been confirmed by several legal authoritarian including our National Commission in it’s reported decision in 2009(2) CPC page648 N.C & also in 2014 (3) CPC 76 N.C. And our such view is also supported by the Honourable N.C in 2008(1) CPC 448 N.C. Hence our views goes in favor of the complainant and as such the Ex-party decision of the honorable Arbitrator is not binding upon the complainant as it has been drawn of by the Opposite Parties by suppressing the material facts in an Ex-Party order and since he has not been given a chance of being heard or presenting his grievance before the Honourable Arbitrator.

While examining the question of the entitlement of the complainant for compensation ,since in foregoing paragraphs we have already expressed our views in support of the complainant holding the act of the Opposite Parties as deficient in rendering service and un-fair trade practice it is quite but natural that he is entitled for compensation as he has sought for, for which the opposite parties are jointly and severally liable ,hence ordered as follows.

O R D E R

That in view of the above facts and circumstances the Opposite Parties are directed to deliver the Complainant with a new vehicle with same specification and model with in 30 (thirty) days from the date of order and in that case the Complainant would pay the rest amount of interest till the date of seizure of his old vehicle i.e on Dt.08.05.2010 and the amount which has already been paid by the Complainant would be adjusted till then and for rest amount would be repaid by him in earlier rate of E.M.I. with a reasonable amount 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 from the date of such supply, and further more the Opposite Parties are directed to pay an amount of Rs.10,000/-(Rupees ten thousand)only as compensation towards his mental agony and physical harassment caused to him by the Opposite Parties for which they are jointly and severally liable. And in default of such order of the Forum further course of action would be taken against them as per the provision of law laid down under the Consumer Protection Act 1986 in the interest of justice.

Accordingly the case of the complaint of the Complainant is allowed against the Opposite Parties and disposed off to-day i.e on Dt.10.05.2017. And pronounced in the open forum.

Typed to my dictation

and corrected by me.

( Sri Krishna Prasad Mishra)

P r e s i d e n t.

I agree, I agree,

(Sri Pradeep Kumar Dash) ( Ajanta Subhadarsinee)

M e m b e r. M e m b e r (W)