Sri Subhra Sankar Bhatta, Judicial Member
This Appeal at the instance of the Appellant/OP No. 1(Indusind Bank Limited) is directed against the order dated 24th August, 2017 passed by the Ld. DCDR Forum, Bhirbhum at Suri in connection with Complaint Case No. 135/2014. The principal Respondent No.1 of this Appeal was the Complainant and the present Appellant and proforma Respondent were respectively the Opposite party Nos. 1 and 2 of that Complaint Case.
The principal Respondent No. 1 as Complainant instituted a Complaint Case being CC/135/2014 under Section 12 of the Consumer Protection Act, 1986 before the Consumer Disputes Redressal Forum at Suri, Bhirbhum praying for certain relief/reliefs as sought for in the prayer portion of the complaint. It has been contended in the Memorandum of Appeal that the Respondent No. 1/Complainant had taken a loan for purchasing a dumper being no. WB 53A 1291 with the financial assistance of the Appellant (Bank) in terms of loan agreement dated 12.05.2012 vide agreement no. WAS00050D and the said vehicle was covered with insurance policy with proforma Respondent No.2/Opposite Party No. 2 viz. Cholamandalam, M/s General Insurance Limited bearing policy no.3379/00758417/000/000 with a sum assured of Rs. 12,60,000/- (Twelve lakh sixty thousand). It has been also contended that the Complainant’s said vehicle in question was stolen away on 2nd December, 2012 and the Complainant lodged a claim for insurance before the proforma Respondent/Opposite Party No. 2 (Insurance Company). Finally, the Opposite Party No. 2 (Insurance Company) settled the said claim of the Complainant with Rs. 12,58,500/- and paid Rs. 9,45,000/- on 23rd March, 2013 and Rs. 3,13,500/- on 30th October, 2014 to the Appellant (Bank) by two instalments. The Respondent No.1/Complainant prayed for refunding the surplus amount after adjustment of the said loan amount. The Appellant (Bank) contested the Complaint Case by filing Written Version. Denying all the material allegations as leveled in the body of the complaint the Appellant/OP No. 1(Bank) raised the question of maintainability for want of jurisdiction and arbitration clause embodied in the loan agreement.
Upon hearing the respective parties and after considering the materials, facts and evidence on record the Ld. Forum below passed its final order/judgment on 24.08.2017 in CC No. 135/2014 wherein and whereby Ld. Forum below directed the present Appellant Indusind Bank Ltd. to pay a sum of Rs. 5,09,390/-+ interest @ 8% per annum on Rs. 1,85,900/- since March 23, 2013 to October 29, 2014 and @ 8% per annum on Rs. 5,09,390/- since October 29, 2014 till realization of the amount to the Complainant along with cost of Rs.2,000/-.
Being aggrieved by and dissatisfied with the impugned order/judgment passed by the Ld. Forum below in CC No. 135/2014 the Opposite Party no. 1 as Appellant has preferred this Appeal on the grounds that the Ld. District Forum failed to appreciate that the Complaint was not at all maintainable in law and fact; that the Ld. Forum below also failed to appreciate that the Respondent No.1/Complainant is not a consumer within the meaning of the provision of the said Act; that the Ld. Forum below failed to observe that the present dispute has arisen out of a contract and as such the dispute is purely contractual in nature; that the Ld. District Forum below also failed to appreciate that the Respondent No.1/Complainant did not avail any service in any manner whatsoever from the Appellant (Bank) and as such the dispute in question does not fall within the ambit of the provisions of C.P. Act; that the Ld. District Forum below failed to consider that the parties to the agreement were bound by the terms and conditions of the agreement; that the Ld. District Forum further failed to observe that the Respondent No.1/Complainant was a defaulter in payment of EMIs and substantial amount of money was due and the relationship between the parties is purely a relationship of debtor and creditor; that the Ld. Forum arrived at a conclusion without assigning any reason. On all such grounds Appellant Bank has prayed for allowing the present Appeal after setting aside the order/judgment impugned.
After hearing the Ld. Counsels for the respective parties to the Appeal and regard being had to the facts, circumstances, pleadings and BNAs of the respective parties we are of the opinion that the following points are required to be determined in the present Appeal:-
POINTS FOR DETERMINATION
1. Whether the Ld. District Forum at Suri, Birbhum has committed any error, illegality or irregularity in passing the judgment impugned.
2. Whether the impugned judgment of the Ld. Forum below requires interference of this Commission.
3. Whether the judgment impugned in Appeal can be sustained in the eye of law.
DECISIONS WITH REASONS
All the above points are taken up together for the brevity of discussion and in order to avoid unnecessary repetitions.
Ld. Advocate appearing for the Appellant (Bank) has advanced a marathon argument by submitting that the present Respondent No.1 as Complainant filed the Complaint Case being CC No. 135/2014 under Section 12 of the Consumer Protection Act, 1986 before the DCDRF at Suri, Birbhum. The present Appellant as Opposite Party No.1 entered appearance in the said case and also contested the case by filing Written Version. He has admitted that the Complainant purchased a vehicle bearing Registration No. WB53A1291 after obtaining loan of Rs. 9,80,000/- and Rs. 2,98,410/- as interest financed by the Appellant (Bank) on executing a loan cum hypothecation agreement to be repayable by 36 instalments. It has also been submitted that Complainant has alleged that her said vehicle was stolen on 02.12.2012 at Four Mile near Ghosh Hotel under P.S Kanksa, District Burdwan and the driver of the said vehicle lodged a written complaint on 06.12.2012 before the Officer-in-Charge Kanksa Police Station being P.S Case No. 261/12 dated 06.12.2012 u/s 379 I.P.C. and after the completion of investigation police submitted final report. He has further submitted that the Complainant informed the above incident to all concerned including O.P No. 2 (Insurance Company) and the Insurance Company settled the claim of the Complainant and paid Rs. 12,58,500/- in two phases i.e. Rs. 9,45,000/- on 23.03.2013 and Rs. 3,13,500/- on 30.10.2014 to the Appellant/OP No. 1 who was the financier of the said vehicle. According to the Appellant/OP No. 1 they are entitled to enjoy the entire money and they should have to repay the insured if excess stands after adjustment of due loan amount. Ld. Counsel has further submitted that the Complainant was a defaulter in payment of EMIs and substantial amount of money was due and as such the Complainant is not entitled to get any relief against the Appellant/Bank.
During the course of hearing Ld. Counsel appearing for the Appellant has vehemently argued that the Complainant cannot be defined as consumer in terms of Section 2(1) Clause (e) of the Consumer Protection Act, 1986. It has been highlighted that at the time of obtaining loan and hypothecating the vehicle in question with the Appellant Bank the Complainant entered into a loan-cum-hypothecation agreement on 16.05.2012 having the arbitration clause. He has also argued much on the point of jurisdiction and boldly submitted that only the Court at Chennai has jurisdiction to decide the dispute in terms of the agreement dated 16.05.2012. According to the Ld. Counsel without considering all the above aspects the Ld. DCDRF at Suri, Birbhum arrived at a wrong conclusion. It has been also argued that the loan agreement in question is purely a commercial transaction and the Ld. Forum below has no jurisdiction to entertain the said complaint. The Appellant has prayed for allowing the present Appeal after setting aside the impugned judgment.
To refute the above contention Ld. Counsel appearing for Respondent No. 1/Complainant has argued that it is an admitted fact that the Respondent No. 1/Complainant purchased the dumper in question with the financial assistance of Appellant (Bank) and the said vehicle was covered with insurance policy with the Respondent No. 2 (Insurance Company). It has been also argued that the Complainant’s vehicle in question was stolen away on 02.12.2012 and the Complainant lodged claim before the insurance Company and the OP No. 2 (insurance company) settled the said claim of the Complainant with Rs. 12,58,500/- and paid Rs. 9,45,000/- on 23.03.2013 and Rs. 3,13,500/- on 30.10.2014 to Appellant (Bank) by two instalments. According to the Ld. Counsel the Respondent No. 1/Complainant is entitled to get back the surplus amount after adjustment of the loan in question but Appellant (Bank) did not refund the same despite service of legal notice. Under such compelling circumstances and finding no other alternative the Complainant filed the complaint before the Ld. District Forum for redressal. Ld. Counsel has also submitted that the Appellant/OP No.1 neither filed their evidence nor cross-examined the Complainant despite getting ample opportunities and as such the allegations as leveled by the Complainant in the body of the complaint remain uncontroverted and unchallenged. It has also been submitted that the Appellant/Bank did not take the plea of default in making payment of EMIs by the Complainant within the four corners of their written version. Ld. District Forum rightly allowed the Complaint Case on contest against Appellant/Bank. Respondent No. 1/Complainant has prayed for outright dismissal of the present Appeal with compensatory costs.
On the other hand Ld. Counsel appearing for Respondent No. 2 Cholamandalam M.S. General Insurance Limited has submitted that the Respondent No. 1/Complainant Sabita Ghosh did not pray for any relief against the Respondent (insurance company) in her complaint and consequently Ld. Forum below was pleased to dismiss the Complaint Case against the proforma Respondent No.2. According to the Ld. Counsel Respondent No. 2 has no liability towards the Complainant. Moreover, Respondent No. 1/Complainant did not prefer any appeal against the impugned order of the Ld. Forum below. Both the Appellant and Respondent No. 1 have unequivocally admitted that out of the total sum insured (Rs. 12,60,000/-) a sum of Rs. 12,58,000/- has already been paid to the Appellant (Bank) towards the claim and Rs. 1500/- was not paid considering the excess clause of the insurance policy. Neither the Appellant (Bank) nor the principal Respondent has raised any objection regarding the aforesaid payment made by the insurance company. Ld. Counsel has prayed for confirmation of the dismissal order passed by the Ld. Commission below.
We have carefully gone through the averments of the respective parties to the Appeal. Here in the present case the following facts are admitted by the respective parties to the Appeal:-
That the Respondent No. 1/Complainant purchased a dumper being No. WB53A1291 after obtaining loan of Rs. 9,80,000/- from the Appellant (Bank) and a loan cum hypothecation agreement was executed between the parties; that the said vehicle was covered with insurance policy with the proforma Respondent No. 2 being policy No. 3379/00758417/000/000 having sum assured of Rs. 12,60,000/-; that the vehicle in question was stolen away on 02.12.2012 and the Respondent No. 1/Complainant lodged claim before the insurance company (Respondent No. 2); that Respondent No. 2 (insurance company) duly settled the said claim of the Complainant with Rs.12,58,500/- and also paid Rs. 9,45,500/- on 23.03.2013 and Rs. 3,13,500/- on 30.10.2014 respectively to the Appellant (Bank) by two instalments.
It is the categorical claim of the Respondent No. 1/Complainant that she is entitled to get refund of the surplus amount after the adjustment of loan. It has been alleged by the Complainant that the Appellant (Bank) did not refund the surplus amount despite giving legal notice.
On a careful perusal of the impugned judgment it has come to the surface that during trial Complainant Sabita Ghosh was examined as PW-1 and she was also cross-examined by way of filing questionnaires. Complainant also filed some documents in support of her claim. Curiously, neither Appellant/Bank nor the insurance company adduced any oral evidence to substantiate their respective pleadings. Simply some documents were filed from their end. Undoubtedly, Respondent No.1/Complainant obtained an insurance policy under Respondent No. 2/insurance company for the period from 05.09.2012 to 04.04.2013 having a sum assured of Rs. 12,60,000/-. Thus, it can be safely held that the Complainant is certainly a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
During the course of trial Respondent No. 1/Complainant produced a calculation sheet in support of her claim. It is the clear and specific case of the Complainant that Appellant/bank received Rs. 2,49,790/- from herself as instalments and Rs. 96,000/- as insurance premium for three years. The statement of accounts submitted by the Respondent No. 1/Complainant supports her such claim. Thus, it can be safely concluded that Appellant/Bank received Rs. 12,58,500/-+Rs. 2,49,790/-+Rs. 96,000/- aggregating a sum of Rs. 16,04,290/- from the Respondent No. 1/Complainant. Nothing is forthcoming on record to think otherwise. Moreover, in her testimony the Respondent No. 1/Complainant claimed Rs. 9,80,000/- as loan amount, Rs. 8,29,000/- as interest and Rs. 32,000/- as first year premium totaling a sum of Rs. 10,94,900/-. We are not unmindful to observe that the Appellant (Bank) did not challenge the statement of accounts produced by the Complainant during trial. In fact, the allegations as brought by the Complainant remained uncontroverted. Counter affidavit was not filed from the end of the Appellant (Bank). The unchallenged testimony of the Complainant cannot be and should not be thrown away on any score. Thus being the position of evidence on record we have no other option left but to hold that Respondent No. 1/Complainant successfully proved her case by adducing trustworthy evidence.
The arguments as advanced by the Ld. Counsel for the Appellant on the point of making reference of the dispute to an arbitrator cannot be and should not be considered at this stage. It is the settled principle of law that a consumer has the choice to either refer the matter to arbitrator or seek remedy before the appropriate consumer forum. However, there is an implied bar on a matter being referred to arbitration if the consumer wishes to pursue the matter before a consumer Court. Moreover, Consumer Protection Laws aim at providing a simpler and cheaper mechanism for dispute resolution, consumers should not be precluded from availing the benefits of the special laws merely on account of presence of arbitration clause in an agreement. On the point of jurisdiction Ld. Counsel for the Appellant has advanced an elaborate argument by submitting that the Complaint Case filed by the Complainant is not maintainable for want of jurisdiction. It has been focused that the Court at Chennai has the jurisdiction to decide the dispute and Ld. Forum below has no role to play. Section 34 of the Consumer Protection Act, 2019 is very much exhaustive and explicit on the point of jurisdiction. It provides geographical jurisdiction for filing complaints in the District Commission. A consumer may file a complaint in a District Commission within the local limits of whose jurisdiction he or she resides or personally walks for gain. Here in the instant case the Complainant used to reside at village and Post Khairakuri, P.S Md. Bazar, District Birbhum which is certainly within the jurisdiction of the concerned District Commission.
Considering all the above aspects from all angles we are of the concrete view that the impugned judgment passed by the Ld. DCDRF, Suri at Birbhum does not deserve interference of this Commission. We do not find any irregularity, error or illegality in the impugned judgment. The arguments as advanced by the Ld. Counsel for the Appellant (Bank) have no legs to stand upon and we do not find much substance in the argument of the Ld. Counsel for the Appellant. Resultantly, the present Appeal fails and the impugned judgment of the Ld. Forum below requires to be sustained.
All the above points are thus disposed of.
Hence,
ORDERED
That the present Appeal being No. A/1178/2017 be and the same is dismissed on contest without any order as to costs. The judgment dated 24.08.2017 passed by the Ld. DCDR Forum, Birbhum, Suri in Case No. CC/135/2014 is hereby affirmed.
Let a copy of this judgment be transmitted to the Ld. DCDR Forum, Birbhum, Suri forthwith for information and taking necessary action.
Thus, the present Appeal stands disposed of.
Note accordingly.
