DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/14/219 of 14.8.2014

                                      Decided on:        26.7.2016

1.      Yash Paul son of Mool Chand R/o Kakra Road, W.No.2 Bhawanigarh, District Sangrur.

                                                                   …………...Complainant

                                      Versus

1.      Tata Motor Finance Ltd., Patiala Branch, 20-FF, City Centre, Patiala near 22 No.Phatak, Patiala through its Branch Manager.

2.      Tata Motor Finance Ltd. think Techno Campur Building A  2^nd Floor off Pakhran Road 2, Thane West 400601, through its Manager.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh. A.P.S.Rajput, President

                                      Smt.Neelam Gupta, Member                                     

Present:

For the complainant:      Sh.D.P.S.Anand, Advocate

For Ops:                          Sh.R.K.Pandey,Advocate          

                                         ORDER

A.P.S.Rajput, PRESIDENT

1. Complainant Yash Paul son of Sh.Mool Chand R/o Kakra Road, W.No.2, Bhawanigarh District Sangrur has filed this complaint against the Opposite Parties ( for short the Ops)  under Section 12 of the Consumer Protection Act,1986(for short the Act). The brief facts of the complaint are as under:-
2. It is the case of the complainant that for the sake of earning his livelihood, he financed truck bearing registration No.PB-13-AF-9297 having paid 1½ installment of the same to the Ops. It is further averred that at the time of financing the truck, it was orally assured by the Ops that the expenses to be incurred on the fabrication of the body of the truck will be paid by the Ops but after receiving 1½ installment of the loan, the Ops refused to pay the expenses of the fabrication of the body of the truck.
3. It is further averred  by the complainant that on 22.12.2014 when the truck was near Haidergarh, Uttar Pardesh,  the Ops with the help of their musclemen had forcibly taken the possession of the truck and still the truck is in the custody of the Ops. It is also averred by the complainant that at the time of taking of the possession of the truck by the Ops, the truck was loaded with the material amounting to Rs.10lac which was spoiled due to the negligence of the Ops. It is averred that the complainant is ready to settle the accounts with the Ops but the Ops refused to reinstate the truck to the complainant. Thus the complainant is suffering from mental harassment and agony. Hence this complaint with a prayer for a direction to the Ops to deliver the possession of truck No.PB-13-AF-9257 alongwith the material loaded in the truck; to pay Rs.10lac on account of damage caused to the material; to deduct the interest for  the period from 22.12.2014 till date; Rs.25000/- per month on account of the truck laying ideal and Rs.2 lacs on account of devaluation of truck .
4. On notice, the Ops appeared and filed their written version having taken the preliminary objections interalia that the complaint is not maintainable before the Hon’ble Forum as the civil complaint on the same cause of action has been dismissed by the Hon’ble Court of Sh.Ravneet Singh, CJJD, Patiala vide order dated 11.9.2015; that the matter has been referred to the arbitrator and that the complaint is bad for non joinder of necessary parties. On merits it is admitted by the Ops that the truck bearing registration No.PB-13-F-9297 has been financed by the Ops. It is also admitted by the Ops that the complainant has paid 1½ installment of the  truck in question. It is alleged in the written version that the truck in question was used by the complainant for commercial use .It is admitted by the Ops that the truck in question was taken into possession by the Ops on 22.12.2014 as per the  orders of the Arbitrator passed under Section 17 of the Arbitration and Conciliation Act. It is alleged in the written version that till 23.9.2015, the complainant has committed the default of Rs.13,15,364.86( i.e. Rs.10,23,780/- on account of non-payment of monthly installments + Accrued ODC/Penal Charges of Rs.2,91,604.86). It is further averred in the written version that the Ops are ready to settle the loan with the complainant. It is denied by the Ops that the Ops have refused to reinstate the truck to the complainant. It is also denied that the material worth Rs.10lac loaded in the truck has been spoiled due to the negligence of the Ops. All other averments made in the complaint have also been denied and it is prayed to dismiss the complaint.
5. In support of the complaint, the counsel for the complainant has tendered in evidence Ex. C A, the sworn affidavit of the complainant and closed the evidence.
6. On the other hand, the counsel for the Ops has tendered in evidence Ex.OPA, the sworn affidavit of Sh.Harsimran Singh, Collection Manager, Tata Motors Finance Ltd., Ex.OP1, copy of power of attorney,Ex.OP2 copy of suit for mandatory injunction, Ex.OP3 copy of Loan Cum Hypothecation cum guarantee agreement,Ex.OP4 copy of contract details,Ex.OP5 copy of arbitration award,Ex.OP6 copy of interim award, Ex.OP7 copy of 2^nd and final intimation for off loading goods, Ex.OP8 copies of postal receipts, Ex.OP9 copy of letter dated 15.11.2014, Ex.OP10 copy of LOT 181 901 Articles, Ex.OP11 copy of letter dated 22.12.2014, Ex.OP12 copy of LOT 181 901 Articles, Ex.OP13, copy of letter dated 8.11.2014, Ex.OP14 copy of excel lot 181 901 Articles, Ex.OP15 copy of Simulated Premature Termination as on 31.10.2015, Ex.OP16 copy of letter dated 23.12.2014, Ex.OP17 copies of postal receipts and closed the evidence.
7. The ld. counsel for the complainant had submitted that the main controversy involved in the present complaint is, that the OPs had taken the possession of the truck forcefully, while it was on its way to deliver the goods in the State of Uttar Pardesh. The ld. counsel stated that the complainant is ready and willing to settle the account but the OPs are not showing any interest to do so. He pleaded that the OPs can repossess the vehicle but only after following the due process of law, in the present case no notice was served upon the complainant and the said vehicle had been snatched from the complainant. The ld. counsel also pleaded that from 20.12.2014 the said truck was in the possession of the OPs and the OPs are even claiming interest on the same. The ld. counsel argued that the arbitrator appointed by the OPs was against the provisions of the Arbitration and Conciliation Act, as the arbitrator was appointed by the OPs at Mumbai and whereas the complainant is plying the truck in Punjab and thereby an exparte award was procured by the OPs, for which the complainant shall seek his remedy. He also argued that the Code of Civil Procedure is not strictly applicable to the Consumer Fora, thus this Forum is not a Civil Court. The ld. counsel also referred to case law titled as; Gurpreet Singh, Abhishek Lal versus Puma Realtors Private Limited & Anr. IV(2015) CPJ 91 (UT Chd.)  of the Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh, wherein it has been held: “25. Ratio of the judgments have left nothing to chance. The National Commission, in a case titled as DLF Limited v. Mridul Estate (Pvt.)Ltd., II(2013)CPJ  439, Revision Petition No.412 of 2011( along with other 11 connected cases), decided on 13.5.2013 after taking ratio of judgment in the case of M/s.S.B.P.and Co.’scase (supra), came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s. S.B.P. and Co.’s case (supra) will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided”. In the other case referred to by the complainant titled as L & T Finance Ltd. & Anr. Versus Rampada Maity 2016(2) CLT 343  of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in which it has been held: “5.Admittedly, the agreement between the parties, Loan-cum-Hypothecation   not a Hire Purchase Agreement. Therefore, the rights which are available to financer, under a Hire Purchase Agreement were not available to the petitioner company, though it is evident from a bare perusal of clause 13 of the said Loan-cum-Hypothecation Agreement that in the event of default, the petitioner could terminate the loan agreement and recover the arrears due upto the date of termination and future installments for the unexpired period, besides repossessing and selling the asset financed by it. The aforesaid rights did not become available to the financer before terminating the loan agreement. In the present case, there is evidence of the loan agreement having been terminated by the petitioner company at any time before the vehicle came to be seized. The case of the petitioner is that it had sent a letter dated 17.6.2010 to the complainant requiring him to make payment of the aforesaid amount aggregating to Rs.7,74,666/-.

          The fora  below found that the aforesaid notice was not served upon the complainant, the same having been received by a person namely Biswajit Maity. It was also noticed that the A.D. card filled by the petitioner company did not bear any stamp or seal of the post office by which the said letter was allegedly delivered to the addressee. Moreover, this was not the case of the opposite party in the reply filed before the District Forum that the loan agreement was terminated by it vide the aforesaid letter dated 17.6.2010. The case of the petitioner in the written statement filed before the District Forum was that the said agreement was terminated on 17.6.2010. If this so, the petitioner committed breach of the terms of the said loan agreement by repossessing the vehicle on 12.6.2010, five days before the alleged termination.”

8. On the other hand, the ld. counsel for the OPs had objected to the submissions made by the ld. counsel for the complainant. He stated that the truck was taken in possession by following the directions of the Arbitrator,vide interm award dated 15/11/2014, thus OPs had followed the due process of law.The ld. counsel pleaded that the complainant is a defaulter and the OPs exercised their right to recover the due amount. The ld. counsel argued that jurisdiction of civil courts are barred in case Arbitration proceedings are initiated ,thus this Forum cannot adjudicate upon. The ld. counsel relied on the case titled as; M/s. Sundaram Finance Limited and another Versus T.Thankam Civil Appeal No.2079 of 2015 in the Hon’ble Supreme Court of India, wherein it has been held: “10. Once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the agreement, approaches the civil court and the other party, in terms of the Section 8 of the Arbitration Act, moved the court for referring the parties to arbitration before the first statement on the substance of the dispute is filled, in view of the peremptory language of Section 8 of the Arbitration Act, it is obligatory for the court to refer the parties to arbitration in terms of the agreement , as held by this Court in P.Anand Gajapathi Raju and others v. P.V.G.Raju(Dead) and others¹”.
9. After hearing the Ld. Counsel for the parties and going through the pleadings and evidence produced , as well as written submissions and oral submission, it is a admitted fact that there was Loan Cum Hypothecation cum guarantee agreement between the parties and the complainant defaulted in payments. It is also admitted by the OPs that in view of the  interim-award of arbitrator i.e Ex.OP-6, the OPs took the possession of the truck from Uttar Pardesh,while the said truck was loaded with goods. It is established from the intimation letter for off loading of goods i.e Ex.OP-7 that the said truck was repossessed with goods. In our opinion the OPs have failed to place on record any material, that shows that the said truck was repossessed after following due process of law. In our opinion once the arbitrator had directed the OPs to repossess the said truck, then why the OPs did not get the same order, executed through the local police offices. It is established from the sworn affidavit of the complainant, that the OPs were in a hurry to repossess the said truck and in order to take the possession, the OPs used private muscle power and forcibly snatched the truck from Uttar Pardesh. The OPs had also failed to place on record any document, proving that the said truck was not repossessed forcibly. No documents have been placed on record with regard to time & place of taking the possession of the said truck. The case law citied by the ld. counsel for the OPs is not applicable, as this Forum is not considered as a Civil Court and the CPC is also not applicable in a strict sense, rather the Act is an additional remedy available to consumer. It has come to our notice that the Hon’ble National Commission had recently,in case titled as Navin Khanna Vs.Unitech Reliable Projects Pvt.Ltd,III (2016)CPJ 203(NC),wherein it has been observed in para no.9 “The second submission made by the counsel for the opposite party was that the complaint is not maintainable as the matter should have been referred to an Arbitration as per the Clause inserted in the agreement.This argument is devoid of force because as per Section 3 of the C.P.Act,the complainants can avail the alternative remedy.” 
10. Accordingly, in view of our aforesaid discussion, and the latest case law titled as; Navin Khanna Vs.Unitech Reliable Projects Pvt.Ltd,III(Supra) we are of the opinion that the OP had committed deficiency of service by forcibly taking the possession of the truck while it was loaded with the goods.In our opinion the complainant has failed to place on record any material showing the value of the goods damaged, hence complainant cannot be held entitled to the same, as prayed. However, we direct  the Ops  not to deduct the interest from the period 22.12.2014 i.e the period when the truck remained in their possession. The complainant is at liberty to pay the outstanding amount and take the possession of the truck.We find complainant is entitled to compensation on account of mental agony amounting to Rs.15000/- alongwith litigation costs amounting to Rs.5000/-        
11. The arguments on the complaint were heard on 21.7.2016   and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 26 .7.2016

                             Neelam Gupta                        A.P.S.Rajput

                         Member                              President