IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 19th day of August, 2022.
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 226/2019 (Filed on 16-12-2019)
Petitioners : Sijomon,
S/o. Pushpavaly,
Kaimoottil Kizhakkethil House,
RPC P.O. Vandanpathal,
Kottayam – 686 513.
(Adv. Ajin Thomas)
Vs.
Opposite parties : (1) The Manager,
for TATA Motors Finance Ltd.
10th Floor, 106, Makers hambel III,
Jamnalal Bajaj Marg,
Nariman Point, Mumbai,
Maharashtra – 400021.
(2) The Manager,
for TATA Motors Finance Ltd.
Kalathippady, Kottayam – 686010.
(3) The Manager,
for Auto Land Parking Yard,
Tata Motors Finance Limited,
Kanakkary P.O. Ettumanoor,
Kottayam – 686632.
(For Op1 to 3, Adv. Mary Tom Thomas
and Adv. Nirmal V. Nair)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
Complainant was the owner of the vehicle TATA Ace having chasis no. MAT445056BZH68906 and engine no. 2751D106HYYSE6144. The complainant purchased the said vehicle on 29-10-11 and registered as KL-34B 1547 with the motor vehicle authorities. At the time of the purchase of the vehicle the complainant paid Rs.31,322/- as down payment and for balance amount he hypothecated the vehicle and availed a loan from the second opposite party for an amount of Rs.2,77,000 at an interest for 12 % per annum. At the time of processing the loan second opposite party demanded 5 cheque leaves of the complainant and also the tax receipt of the property of owned by the complainant as a security for the loan. At the time of availing the loan second opposite party informed that the instalment amount for the loan will be Rs.8325 per month and the total number of instalments will be for 48 months. The complainant paid his monthly instalments as EMI’s from 1-12-2011. Subsequently as the use of the vehicle by the public was too dull, the complainant found it very difficult to make payment of EMIS. Complainant paid EMI up to 9-5-2013. The total amount paid by the complainant up to 9-5-2013 is Rs.1,26,785/-.
On October 2013 the complainant informed the second opposite party that he cannot maintain the vehicle. The second opposite party informed and conveyed to the complainant that the vehicle would be taken back by the company on a settlement basis and further informed that they would fix a negotiated price for the closure of the vehicle loan and the complainant needs to pay the amount at the time of surrender of the vehicle. On 14-01-2014 the complainant handed over the vehicle back to the third opposite party and after assessment of the vehicle, it was informed to the complainant the he needs to pay an amount of Rs.34000/- to the first opposite party. Complainant paid Rs.34,000/- on 14-1-2014 itself to the third opposite party and demanded the cheque leafs and other documents given at the time of availing the loan as security to first opposite party. The third opposite party informed that those agreements are with financing company and will be sent through courier service. After a period of 6 months the complainant enquired about his documents to the second and third opposite parties and it was informed to him that the documents would be send to him only after the sale of the vehicle.
On October 2015 the Manager of second opposite party made him believe that as the vehicle was already sold to some other third party, the documents are of no use and they had already destroyed all the documents submitted before the year 2013. Assurance was given by the manager of Tata Finance that there would be no legal action taken against complainant with that documents. Contrary to the assurance of the second opposite party now the complainant is receiving phone calls from Tata Motors Finance’s Delhi office demanding the payment of surrender value. The calls are of threatening nature which demands the already paid surrender value by the complainant. The complainant issued a lawyers notice on5-11-2019 demanding the documents submitted to the second opposite party. In reply the second opposite party had denied all contentions of the complainant.
The second opposite party even after the receipt of legal notice continue to threaten the complainant over telephone. The above said acts of the opposite parties amount to deficiency in service and unfair trade practice on the part of the opposite parties. Hence this complaint.
Upon notice opposite party appeared before the commission and filed version. Though the notice was duly served, the second and third opposite parties failed to appear before the commission and file their version. Hence the second and third opposite parties were set ex-party.
Version of the first opposite party is as follows:
The complainant is not a consumer and the relationship between the complainant and the first opposite party is that of borrower and the lender. The loan cum hypothecation agreement entered into between the parties clearly says that this commission lacks the jurisdiction to adjudicate matter.
The complainant has come before the commission with unclean hands in so far as he has suppressed a material fact that there is an already existing arbitration award dated 24-3-2014 in favour of the opposite party enabling it to realize an amount of Rs.2,71,202/- with 18% interest per annum.
The complainant has availed a vehicle loan for Rs.2,77,000/- from the first opposite party and accordingly had entered into an agreement . As per the terms of the said agreement the loan amount was to be repaid in 48 equated monthly installments. But the complainant failed to pay the said EMIs and thus breached the terms of the contract. It is submitted in the version that the first opposite party never insisted to make payment of Rs.34,000/- as surrender value. The averment in the complaint to the affect that the complainant paid the surrender value and demanded the security cheque leafs and other documents is not correct. It is submitted in the version that in terms of the agreement, after the surrender of the vehicle, the said vehicle is sold in public auction to realise the legitimate dues of the opposite party which is with the knowledge of the complainant. In the event of the opposite party being unable to realize its entire dues through the sale proceeds of the vehicle and the opposite party suffers some loss, the opposite party is entitled to recover the loss on sale from the complainant by approaching the competent forum. The complainant was never informed by the opposite party that since the vehicle has been sold to third opposite party, the complainant would not need his loan document and they have been destroyed and no assurance was given to the complainant that no legal action would be taken against the complainant. There is no deficiency in-service or unfair trade practice on the part of the first opposite party.
Complainant filed proof affidavit and exhibit A1 to A5 were marked from the side of the complainant. One Shanu A, who is the branch Manager of the first opposite party filed proof affidavit and marked exhibit B1 from the side of the first opposite party.
On evaluation of complaint, version and evidence on record we would like to consider he following points.
- Whether the complaint is maintainable or not?
(2 ) Whether the complainant had succeeded to prove any deficiency in service or unfair trade practice on the part of the opposite parties?
(3 ) If so what are the reliefs and cost?
Point number 1 to 3
It was the case of the complainant that the complainant had financed his vehicle from the second opposite party to the extent of Rs.2,77,00/-. It was stated that the loan amount was discharged on 14-1-2014 by remitting surrender value of the vehicle after surrendering the vehicle to the third opposite party.
But the documents including 5 cheques which were handed over to the second opposite party as security for the loan was not returned by the Opposite Parties. Hence, this consumer complaint was filed for directing the Opposite Parties to return the documents and cheque leafs of the complainant and to issue closure letter of the loan to the complainant.
First opposite party contended that the complaint was not maintainable as complainant is not a consumer as envisaged in the consumer protection act.
Section 2(1)(d)(ii) defines consumer as a person who 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 when such services are availed of with the approval of the first mentioned person .For the purposes of this definition “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Service is defined to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Thus we are of the opinion that the complainant is a consumer as envisaged in Consumer Protection Act 1986.
Another contention of the opposite first opposite party is that there is an already existing arbitration award dated 24-3-2014 in favour of the opposite party enabling it to realize an amount of Rs.2,71,202/- with 18% per annum and the Complaint in the Consumer Forum was not maintainable
The Hon’ble National Commission in Instalment Supply Ltd. vs. Kangra Ex-Serviceman Transport I (2007) CPJ 34 (NC) observed 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.
“Dissatisfied with the order of State Commission, the petitioner has filed the revision. It was contended by the Counsel of the petitioner that an arbitration award has been passed in this case which is binding on the parties. He further submitted that the complaint was barred by res judicata inasmuch as respondent No. 1 concealed from this Commission that all disputes between the petitioner and respondent No. 1 had already been settled by arbitration in accordance with Arbitration Agreement contained in the said Hire Purchase Agreement (HPA). The award dated 5.9.2000 of the Arbitrator Mr. K.L. Bhendwal had already been published and delivered and the award takes into account all the payments made or due. In terms of said award, the respondent No. 1 owes the petitioner a sum of Rs. 58,114 towards arrears of hire money, interest and other charges under the said agreement. Though, this fact was brought to the notice of District Forum in
the reply but was ignored”.
Further Hon’ble National Commission in T. Srinivas & Anr. Vs. M/s Srija Construction, R.P. 3419/2013 decided on 19.11.2015 observed that “the words ‘in addition’ appearing in Section 3 of the Consumer Protection Act enables the complainant to file a complaint before the Consumer Forum and also not file any other Forum. We feel, till the award passed in this case is in existence, or unless it is set aside by the competent authority under the relevant Act, this consumer complaint is not maintainable.”
Once the arbitration award has been passed, the Complainant cannot file Complaint in a Consumer Forum. In case the Petitioner had any objection against the award passed by the Arbitrator, he should have challenged the award before the Competent Court as per law. Had the arbitration award been set aside by the Competent Court, the matter would have been different and in that case, the Consumer Complaint could be maintainable. As the arbitration award had not been challenged by the Petitioner and still exists, the same is binding on the Petitioner.
In the case titled ‘ M/s Magma Fincorp Ltd. Vs. Gulzar Ali’ Revision Petition No.3835 of 2013 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 17.04.2015 and ‘ Dinesh Premji Shah Vs. S. N. Pathak’ II (2006) CPJ 200 (NC) the Hon’ble National Consumer Disputes Redressal Commission, New Delhi clearly held in Para 12, inter- alia, as under:-“12. It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable. The Fora below have wrongly arrogated to themselves the power, which these Fora did not possess. In case, the petitioner has got any objection against the Arbitrator, he should challenge the award before the higher Court, as per Law. The question whether the complainant was served in this case, whether the award passed by the Arbitrator is correct or not, all these questions do not come in the ambit of power of the Consumer Commission.”
In our considered opinion, once arbitration award has been passed, the complainant could not knock the doors of the Consumer Fora. Had the arbitration award been set aside by the Competent Court, the matter would have been different and in that event, the complaint filed before the Forum could be said to be maintainable and proceeded with. The complainant failed to join the arbitration proceedings and exparte award vide exhibit B1 was passed, which still stands as on today. The arbitration award is still not challenged by the complainant. The submission made by the complainant devoid of merit in view of the settled law on the subject as referred to above. To challenge the arbitration award, the remedy available with the complainant is to approach the Civil Court having competent jurisdiction.
Accordingly, we are of the view that the complaint is liable to be dismissed. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 19 day of August, 2022.
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Waiver agreement dtd.14-06-19
A2 – Inventory list of vehicle
A3 – Copy of lawyers notice dt.05-11-19
A4 – Postal receipt
A5 –Copy of track consignment
Exhibits marked from the side of opposite party
B1 – Copy of the award of sole arbitrator dtd.24-03-14
By Order
Assistant Registrar
