Order No. 12    28.08.2019

            The instant hearing arising out of an application dated 21.06.2019 filed by the OP-2 challenging the maintainability of consumer complaint.

The Ld. Advocate for the OP-2 has submitted that the complainant obtained transport loan to purchase a vehicle bearing registration No. WB 07 J1054 from the OP-2 Tata Motors Finance Ltd. against execution of several loan documents. Complainant is a housewife and she engaged a driver to ply said vehicle to earn profit. Complainant used the vehicle for commercial purpose. As such, she is not a consumer under definition of section 2 (1) (d) of the CP Act, 1986. Thus, the claim of the complainant for earning her livelihood by means of self employment is not correct. Complainant failed to pay EMIs regularly as per terms and conditions of the loan agreement for which the OP-2 recalled the loan and referred the dispute to the Arbitrator. The Arbitrator passed final award on 20.07.2018 and as per the award the OP-2 is entitled to recover their dues through taking re-possession of the vehicle. The complainant never challenged the award in any Forum within the statutory period of limitation for which the award has attained its finality. The award passed by the Arbitrator is binding upon the parties and the Fora should not have passed any order overlooking the award. Therefore, this Forum has no jurisdiction to entertain the complaint and complaint is not maintainable in its present form and in law. Accordingly, the complaint is liable to be dismissed with exemplary cost.

Per contra, the Ld. Advocate for the complainant has submitted that she purchased a Tata Indigo eCS vehicle after obtaining financial assistant from the OP-2 on execution of several loan documents. As per agreement, the complainant is liable to pay Rs. 14,309/- per month as EMIs and entire loan amount will be liquidated within 48 installments. The complainant has already paid 39 installments and the OP calculated a huge amount as last installment. The OP forcefully appointed muscle man and re-possessed the vehicle on 19.04.2018 in violation of loan agreement. The OP-2 issued a re-possessed vehicle inventory list illegally without due process of law. The Ld. Advocate for the complainant has further contended that she received a letter from the Arbitrator and the said vehicle is still in her name and traffic violation case is also registered in the name of the complainant. The OP-2 has made illegal attempts and sold the said vehicle to the 3^rd party without giving any opportunity to the complainant to participate on Auction Sale. There is deficiency in service and unfair trade practice on the part of the OPs. The instant consumer complaint is well maintainable and the impugned Miscellaneous Application is liable to be rejected with cost.

For appreciation of the matter it would be pertinent to have look the provisions of section 2 (d) of the act provides:

Section 2 (1) (d) in the Consumer Protection Act, 1986

(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)¹² [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose];

Explanation:- For the purposes of this Clause “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.

We have perused the complaint petition and find that the complainant being a housewife purchased the vehicle and hired professional driver to ply the vehicle. Therefore, the vehicle being used for commercial purpose and there is no element of self employment involved in the instant case. In view of the verdict of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial institute reported in (1995) 2 SCC 583 the complainant is not a consumer within the meaning of section  2 (d) of the CP Act, 1986. Thus, the instant complaint case is not maintainable in its present form and in law.

It is true that due to non payment of EMIs of loan the OP-2 referred the matter to the Arbitrator in terms of the agreement and the Arbitrator passed final order on 20.07.2018. Complainant did not prefer any appeal before the appellate court against the award passed by the Arbitrator within the statutory period of limitation  for which the award has attained its finality. The instant complaint case is filed on 07.01.2019 after laps of 05 months 16 days from the date of award.

In a case reported in 1 (2007) CPJ 34 NC (Installment Supply Ltd. Vs. Kangra Ex Serviceman Transport Company & Anr.) the Hon’ble NCDRC held that “the issue involved in this case is whether a complaint can be decided by the consumer Fora after an arbitration award is already passed. The simple answer to this question is, No”. In the above cited decision, the Hon’ble NCDRC categorically held that in view of the arbitral award having being passed in the arbitration processing between the parties the disputed issues had become Res Judicata and further concluded that “award was passed before the complaint was filed by the respondent No. 1. It will thus, govern the dispute between the parties. In view of the decision of the Arbitrator which is binding on parties, the Fora below should not have passed an order by overlooking the award. Hence, this revision petition is allowed, orders passed by Fora below set aside and complaint dismissed.”

It is true that the sole Arbitrator passed an award against the complainant on 20.07.2018 in arbitration proceedings being No. TMFL/159442 of 2018 and the complainant did not prefer any appeal before the appellate authority within the statutory period of limitation for which the award has attained its finality.

Based on the foregoing observation, we are of the view that the instant complaint is not maintainable in its present form and in law. As a result, the complaint is liable to be dismissed.

Hence,

ORDERED

 That the Miscellaneous Application is allowed on contest but without any cost.

Thus, the MA No. -278/2019  is disposed of.

Consequently, the Complaint Case being No. 10/2019 is dismissed being not maintainable in law.

In view of the dismissal of the complaint case, the Miscellaneous Application being Nos.  339/2019 and 340/2019 are in fractious. Thus, both MA being Nos. 339/2019 and 340/2019 are disposed of.