Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant Appeal U/s. 15 of the Consumer Protection Act, 1986 has been filed on behalf of the Appellant/Complainant Purnima Bose to impeach the Order dated 28-08-2019 vide order No.12 passed by the Ld. DCDRF Kolkata, Unit-II in connection  with the Consumer Compliant case being No.10 of 2019.  Whereby the said complaint case was dismissed on contest as not maintainable.

The Appellant/Complainant has lodged this complaint case before the Ld. DCDRF, Kolkata, Unit-II, U/s.12, of the C.P.Act, 1986 and thereby stated that she has purchased a Tata Indigo ECS Vehicle after obtaining final assistance from the O.P No.2 Tata Motors Finance Ltd on execution of several loan documents.  As per the said agreement the complainant is liable to pay EMI’s @ 14,309/- p.m. for 48 installments.  The Complainants have paid 39 installments but the O.P by appointing muscle man has repossessed the said vehicle on 19-04-2018 violating the loan agreement.  The Complainant has received a letter from arbitrator  and the said vehicle to their party without giving any opportunity to the Complainant to participate on auction sale which is a deficiency in service and unfair trade practice on the part of the O.Ps and the Complainant has appeared before the Forum below praying for redressal of his grievances. 

By filing one MA application being No.278/2019 the Respondent/Opposite No.2 has submitted before the Ld. DCDRF that the complainant obtains transport loan to purchase a vehicle bearing registration No.WB07J1054 from the present Respondent O.P No.2 Tata Motors Finance Ltd.   But the Complainant failed to pay EMIs regularly as per the terms and conditions of the loan agreement.  For which the O.P No.2 recalled the loan and referred the dispute to the arbitrator.  The arbitrator passed final order on 20-07-2018 and as per that award the present Respondent/O.P No.2 is entitled to recover dues through taking repossession of the vehicle. The Complainant never challenged that order within the statutory period of limitation and the said order dated 20-07-2018 has attained its finality.  Therefore, Forum has no jurisdiction to entertain the said complaint and the complaint is not maintainable in the eye of law.  Moreover, the Appellant/Complainant is a housewife and engaged a driver to ply the said vehicle to earn profit.  As such the Complainant cannot be considered as Consumer U/s.2(1)(d) of C.P.Act, 1986.  After assessing the materials on record, the Ld. DCDRF has allowed the MA being No.278/2019 and dismissed the complaint case being No. 10 of 2019 as not maintainable in law.

Being aggrieved by the said order dated 20-07-2018 the Complainant/Appellant preferred this Appeal. During the course of argument Ld. Counsel for the Appellant/Complainant has argued that the Ld. District Forum has erred in observing that the Forum has no jurisdiction to entertain the said complaint.  The Ld. Counsel for the Appellant/Complainant has filed one case law and relied on a Supreme Court decision in a case between Emmar MGF Land Ltd Vs. Aftab Singh –I, (2015)CPJ 5 (SC) in which it was laid down that an Arbitration Clause on the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the complaint. But in the present case Respondent/O.P No.2 has already referred the matter to the Arbitrator in terms of the Agreement and the Arbitrator passed final Order on 20-07-2018.  The present Appellant/Complainant did not prefer any Appeal before the Appellate Court against the said final order passed by the Arbitrator within the statutory limitation period for which the said final order of the Arbitrator has attained finality.  The Hon’ble NCDRC has already held in a case reported in 1(2007) CPJ 34 NC (installment supply Ltd. Vs. Kangra Ex Serviceman Transport Company & Anr.) that a complaint cannot be decided by the Consumer Forum after passing of Final Order/Award by the Arbitrator.  The Hon’ble NCDRC categorically held that in view of the said arbitral award being passed in the arbitration processing between the parties the disputed issues has 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 for a below set aside and complaint dismissed.”

The Ld. Forum Lower Below rightly observed that the said order dated 20-07-2018 of the Arbitrator is binding on the parties and Forum should not pass further any other order by overlooking the said Award. 

Considering all aspects and in view of the above, we are of the opinion that the Ld. Forum has rightly passed the order and dismiss the complaint case being No.10 of 2019 as not maintainable.

With the above all observation the Appeal stands dismissed ex-parte without any order as to costs.

The impugned order passed by the Ld. District Forum Kolkata, Unit-II dated 28-08-2019 in connection with complaint case No. CC/10/2019 is hereby affirmed. 

Let a copy of the Judgment be sent to the Ld. Commission below forthwith for information.

Interim order if any be vacated forthwith.

Thus, the Appeal stands disposed of.

Note Accordingly.