IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 16th day of May, 2023.
Filed on : 21.10.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R.Sholy, B.A.L,LLB (Member)
In
CC/No.263/2022
between
Complainant:- Opposite parties:-
Sri. Fuad.M 1. Tata Motors Finance Ltd.
S/o Muhammed Sadique Building A, 9th floor, Lodha I
Kalappuraikkal Puthen Veedu Think Techno Campus 2
ESI Ward, Bazar P.O. Thane (West)- 400607
Alappuzha
(Adv.Vineetha P.S) 2. Tata Motors Finance Ltd.
J&J Complex, 2nd floor,
VCSB Road, Erezha, Mullackal
Alappuzha-688011
(Adv.Babu Joseph for Ops 1&2)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019.
1. Complainant’s case briefly stated is as follows:-
On 17/3/2015 complainant availed a vehicle loan of Rs. 3, 54,500/- and the total amount including finance charge of Rs. 1,27,996.08/- and vehicle insurance of Rs. 85,200/- was Rs. 5,67,696/-. It was to be repaid as 48 equal monthly installments at the rate of Rs. 11,827/-. Complainant was regularly repaying the loan.
2. At the time of availing the loan 2nd opposite party had deducted an amount of Rs. 85,200/- being the insurance premia for 4 years for the vehicle bearing Reg. No. KL.04.-AG-9116. Since the amount of premia was more complainant informed the opposite parties that their insurance is not necessary and he availed insurance policy from M/s National Insurance Company by paying premia and it was informed to the opposite party before fixing the EMI. However opposite parties fixed the installment without reducing the insurance amount. Though the complainant requested to reduce the same it was assured that it will be adjusted in the last installments.
3. Several times complainant approached the opposite parties demanding the amount and requesting to close the transaction adjusting the amount and demanded NOC. But it was not done. Since the adjustment of the amount was not done still the loan is pending and opposite parties are claiming interest for the said amount. On several occasions complainant demanded the amount of Rs. 85,200/- but it was not repaid. This amounts to deficiency of service and the complainant is entitled for an amount of Rs. 50,000/- as compensation on account of the same. Hence the complaint is filed for realizing an amount of Rs. 85,200/- being the insurance amount , Rs. 50,000/- as compensation along with interest from 17/3/2015. Opposite parties may be directed to issue the NOC for the vehicle bearing Reg No. KL.04-AG-9116.
4. Opposite parties filed a version mainly contenting as follows:-
Complainant availed financial assistance from the opposite parties including financial assistance of insurance policy for the 2nd 3rd and 4th year. As per the request of the complainant policy of M/s National Insurance Co. Ltd was issued to the vehicle bearing Reg. No. KL.04.-AG-9116 for 2nd,3rd, and 4th year amounting Rs. 24,338/-,Rs.21,925/-, and Rs.21,297/- respectively. After availing the policy and after a lapse of 7 years complaint is filed with unclean hands.
5. Complainant never requested that he doesn’t require insurance loan. Opposite parties never received Rs. 85,200/- in excess. Insurance policy was issued as agreed by the complainant in the agreement executed between the parties. Complainant is not entitled for any relief. There is no deficiency of service and hence the complaint may be dismissed.
6. On the above pleadings following points were raised for consideration :-
1. Whether the complaint is hit by limitation?
2. Whether the complaint is maintainable in view of the arbitration award?
3. Whether there is any deficiency of service from the part of opposite parties as alleged?
4. Whether the complainant is entitled to realize an amount of Rs. 85,200/- being the amount collected as excess from the opposite parties?
5. Whether the complainant is entitled to realize an amount of Rs. 50,000/- as compensation from the opposite parties?
6. Reliefs and costs?
7. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B5 from the side of the opposite parties.
8. Point No. 1 and 2:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3. Rw1 is the Zonal Legal Officer of opposite parties. He filed an affidavit in tune with the version and marked Ext.B1 to B5.
9. The case advanced by PW1, the complainant is that on 17/3/2015 he availed a loan of Rs. 5,67,696/- for purchasing a vehicle bearing Reg. No. KL.04.-AG-9116. At the time of availing the loan 2nd opposite party had collected an amount of Rs. 85,200/- being the amount of insurance premia for 4 years. However he himself paid the premia and took insurance policy. Hence the complaint is field for return of Rs. 85,200/- being the insurance premium collected by him along with interest and Rs. 50,000/- on account of deficiency of service. In para 10 of the complaint it is stated that the cause of action arose on 17/3/2015, 21/1/2019,1/4/2019, 3/10/2019,11/12/2019, January 2020 and lastly on 2/6/2022. The learned counsel appearing for the opposite parties contented that Ext.B5 agreement was executed on 16/3/2015 and it was for a period of 4 years (48 instalments). Since the period of agreement ended during 2019 the complaint filed on 21.10.2022 is hit by limitation. Sec. 69 of the Consumer Protection Act, 2019 reads as follows:-
“ Limitation period :
(1) The District Commission , the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section(1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
PROVIDED that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”
10. Here in the complaint it is stated that the cause of action arose on different dates starting from 17/3/2015 and lastly on 2/6/2022. According to PW1 he had demanded the amount several times to the opposite parties directly and the last demand was on 2/6/2022 and thereafter the complaint is filed on 21/10/2022. As rightly pointed out by the learned counsel appearing for the opposite parties PW1 could not produce any scrap of paper to prove the demand as alleged by him on various dates and on the last date ie, on 2/6/2022. Ext.B5 agreement was executed on 16/3/2015 and the tenure was 48 months and it ended on 16/3/2019. Since the complaint is filed on 21/10/2022 ie, after a period of two years as rightly pointed out by the learned counsel appearing for the opposite parties the complaint is hit by limitation. Complainant has not filed any application u/s 69 (2) of the Consumer Protection Act, 2019 to condone the delay.
11. It was pointed out by the learned counsel appearing for the opposite parties that Ext.B4 arbitration award was passed on 15/2/2019 by the sole arbitrator appointed by the opposite parties. Since already an arbitration award was passed, consumer Commission has no jurisdiction to entertain the complaint. As pointed out earlier the complaint is seen filed on 21/10/2022 ie, after about 3 years of passing Ext.B4 arbitration award. In this context we are enlightened by the decision of the Hon’ble National Consumer Disputes Redressal Commission in Mir Alam Vs. Magma Finance Corporation dtd. 18/8/2021 in Revision Petition No.1892 of 2019. It was held.
“ The authorities under Consumer Protection Act, 1986 do not exercise supervisor or appellate powers over the Arbitrator’s award. The complaint before District Consumer Forum was not maintainable. The remedy of the complainant was to file an application for setting aside exparte Arbitrator’s award under Section 34 of the Arbitration and Conciliation Act, 1996 or to file an appeal against it. The order of State Commission does not suffer from any illegality. The revision has no merit. The Supreme Court in National Seeds Corporation Ltd Vs. M. Madhusudhan Reddy & anr. ( 2012) 2 SCC 506 (paragraph 66) has held that if the grower opts for remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. This judgment has been followed by this Commission in the cases relied upon by the counsel for the respondent.”
12. The decision of the Hon’ble Supreme Court referred above was affirmed by a full bench of the Hon’ble Supreme Court in IREO Grace Realtec Pvt. Ltd. Vs. Abhishek Khanna & Ors. (2021 KHC 6012) = (2021 0 AIR (SC ) 437).
Hence in view of the decisions referred above of the Hon’ble National Consumer Disputes Redressal Commission and the Hon’ble Supreme Court it is pellucid that once an arbitral award is passed Consumer Commission has no jurisdiction to entertain a complaint on the same facts. In view of finding in point No. 1 and 2 the complaint is not maintainable before this Commission.
13. Point No. 3,4 and 5:-
In the light of finding point No.1 and 2 since the complaint is not maintainable before this Commission these points does not arise for consideration.
14. Point No. 6:-
In the result complaint is dismissed with cost of Rs. 3000/-
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 16th day of May, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.P.R.Sholy (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Fuad.M (Complainant)
Ext.A1 - Copy of RC book
Ext.A2 - Contract details
Ext.A3 - Copy of insurance certificate
Ext.A4 - Policy
Evidence of the opposite parties:
RW1 - Sri.Ratheesh T.C (Witness)
Ext.B1 - Certificate of insurance cum policy schedule issued on 17.02.2016
Ext.B2 - Certificate of insurance cum policy schedule issued on20.02.2017
Ext.B3 - Certificate of insurance cum policy schedule issued on19.02.2018
Ext.B4 - Arbitration award passed on 15.02.2019
Ext.B5 - Agreement
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
