MR. BIBEKANANDA DAS, MEMBER:-                 

                         The C.C. Case No. 21/2019 filed on 29.03.2019. More than 4 years have already passed. Both the Ops sufficiently noticed & filed their written version respectively. We are disposing it on priority basis as per mandate of C.P.Act-2019.

Brief Fact:-

                        The Complainant purchased a Neon-Rush ACE Zeep-Refresh Disel BS-III vehicle Engine No. G600W111S5F8437856, Regd. No. OD-29B-8107 from the Op No.2 by availing finance from OpNo.1. Being a consumer the Ops deducted insurance money from the financed amount & an Insurance Policy issue by TATA AIG in Complainant’s name mentioning Chasis No.  & Engine No. from dt. 29.12.2015 to 28.12.2016 by paying Rs. 20,794/- to the TATA AIG Insurance Company. The vehicle met with an accident on dt. 27.07.2016 accordingly a station diary was lodged before S.I. of Police, Kudanagari, Kendrapara (copy annexed). The vehicle was damaged on the accident severely. The Complainant paid all the damaged value & repaired the vehicle. Subsequently the vehicle shown several manufacturing defect & the same intimated to both the parties. Instead of payment of cost incurred to remove the defect the OpNo.2 as a trader demanded expenses from the Complainant.

                 The Op No.1 illegally, arbitrarily seized the vehicle of the Complainant by engaging musclemen and taken the vehicle out of the possession of the Complainant from near Korua College under Patkura Police Station and prayed for compensation to a tune of Rs. 10,00,000/- and other consequent reliefs with a direction to OpNo.1 to release the vehicle in favour of Complainant.

1. Whether the Complainant is a consumer or not within the ambit of C.P.Act,2019?

                  Complainant being an unemployed youth at the time of filing of this C.C.Case operating the vehicle OD-29B-8107 for maintaining his livelihood from the profit of the said vehicle and OpNo.1 seized the vehicle arbitrarily, illegally which is deficiency in service, unfair contract and unfair trade practice by the OpNo.1 and Op No.1 in his written version contradicted the version of Complainant and contented that the Complainant availed loan of Rs. 2,48,000/- and the same is a loan/hypothecation agreement to repay in 47 installments and the Complainant could not repay the same as per the agreement, terms of agreement the lender has every right to seize the vehicle when the borrower is defaulter in repay the installments. Therefore the Complainant is not coming under the C.P.Act, 2019 as a consumer, such contention of Op No.1 bereft of merit without sufficient material against the Complainant to establish that Complainant is not a consumer, and Complainant has sufficient properties for maintaining his livelihood except the vehicle in question. In our considered opinion contention of OpNo.1 devoid of any merit & we decided it in favour of the Complainant.

2. Whether the settlement of issues by the arbitral tribunal arrest the jurisdiction of DCDRC?

                The OpNo.1 filed a arbitral award passed ex-parte against the Complainant at Mumbai. Awarded claimant/OPNo.1 Rs. 1,78,300/- with Rs. 10,000/- arbitral expenses. Ld. Counsel for Complainant submitted that the same arbitral awarded is illegal, arbitrary and have no legal affect when petition before DCDRC is pending for deficiency in service. The Ld. Counsel for Complainant further contended that, the arbitral tribunal neither have executive power nor have judicial power to setting the Complainant as ex-parte. Such ex-parte order has no legal force upon the Complainant. The DCDRC being entrusted with judicial as well as executive power as per the special statute in C.P.Act,2019 with order/Judgement which is superior to the award of an arbitral tribunal.

         Therefore, in our considered view the ground raised by Ld. Counsel for the Complainant has got merit and as a result the arbitral award passed by the ld. Arbitrator Mr. Bhaskar H. More, L.L.B(sole Arbitrator) passed in CH4/TMFL/EAST/ARB/455/2018 on dt. 05.02.2019 during pendency of C.C.Case No. 21/2019 is hereby quashed.

1.  Whether the Complainant entitle to any relief sought for ?

               The vehicle in question seized illegally, arbitrarily by the Ops without following the procedure of law, when the default was Rs. 1,78,300/-. The vehicle when seized the Complainant suffered for maintaining his livelihood by the deficiency in service of Op No.1. The financial service provided by OpNo.1 suffers from Unfair trade practice for which the OpNo.1 liable to pay Rs. 1,00,000/- as fine/penalty for such above unlawful activities redressal of which prescribed under C.P.Act,2019.

                                                            ORDER

                It is directed that OpNo.1 shall release the vehicle in favour of Complainant within 15 days from the date of receipt of this order and adjust the loan of Complainant by A/C deducting Rs. 1,00,000/- from the balance outstanding amount of  Rs. 1,78,300/, failing which the Complainant is at liberty to file execution proceeding before this Commission.

                         Issue extract of the order to the parties for compliance.                  

          Pronounced in the open Commission, on this the 5^th day of December,2022.             

                                                                                   I agree

                                    Sd/-                                          Sd/-

                                MEMBER                             PRESIDENT