F.A.No.649/2010 against C.C.No.735/2009, Dist. Forum-III, HYDERABAD.

Between:

Shaik Jangu Miayan

s/o.Jahangir Sab, Age 34 years,

Occ:Driver, R/o.H.No.11-21-716,

NTR Nagar, L.B.Nagar, R.R.District.                                Appellant/

                                                                                Complainant  

And

TATA Motors Limited,

Rep. by its Manager, Having Office at

H.No.6-3-637, Akash Ganga Complex,

Hyderabad-500 004.                                                                 Respondent/

                                                                                                Opp.party

Counsel for the Appellant                    : Mr.Mohd.Muneeruddin

Counsel for the Respondents              : M/s.Hari & Associates

QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA, MEMBER.

           TUESDAY, THE TWENTY FIRST DAY OF FEBRUARY,

                      TWO THOUSAND TWELVE

Oral Order (Per Smt.M.Shreesha Hon’ble Member )
                                                          *****

Aggrieved by the order in C.C.No.735/2009 on the file of District Forum-III, Hyderabad, the complainant preferred this appeal.

The brief facts as set out in the complaint are that the complainant, a driver, for self employment purchased a Tata Vehicle from Jasper Industries for a total sale consideration of Rs.7,16,732/- and paid an initial sum of Rs.68,000/-.  The opposite party financed a sum of Rs.6,08,000/-  and made direct payment to the manufacturer and the remaining sale consideration of Rs.40,732/- was made by the complainant by cash to Jasper Industries.  The complainant submits that he further paid a sum of Rs.30,000/- towards insurance, registration charges and other accessories.  He signed the pre-printed agreement on 24-6-2006 and submits that there were several blank forms and he was explained that the loan is to be repaid in 45 instalments commencing from 24-6-2006 with interest sum of Rs.1,33,760/-.  Opposite party also took post dated cheques and  obtained surety of a guarantor and the complainant submits that he was informed that the EMI was Rs.17,250/- but if Rs.6,08,000/- is added to the interest sum of Rs.1,33,760/- and divided by 45 instalments, it will come to Rs.16,484/- and not Rs.17,250/-.  During the period between 01-8-2006 to 18-7-2008, the complainant paid Rs.2,97,861/- in cash and paid Rs.1,39,626/- by cheques totalling to Rs.4,37,487/-.  He submits that the opposite party has collected excess payment of Rs.23,487/-, as EMI was paid at Rs.17,250/- and Rs.41,873/- if EMI is taken at Rs.16,484/-.  While so, on 16-8-2008 the said vehicle met with an accident and the complainant spent Rs.1,16,154/- towards repairs and the vehicle was not road worthy between 16-8-2008 to 27-10-2008.  The complainant plied it for a week, but on 05-11-2008, opposite party forcefully took possession of the vehicle and the complainant lodged a police complaint against the illegal seizure.  The complainant submits that the insurance company directly forwarded the claim amount of Rs.79,600/- to the opposite party in February, 2009 but still opposite party No.1 did not release the vehicle.  Hence the complainant got issued a legal notice on 22-5-2009 but there was no response.  Thereafter the complainant came to know that the said vehicle was sold away by opposite party without issuing any pre sale notice to him and instead the complainant received an arbitration notice on 25-8-2009 without any copies of the claim petition for the arbitration to be held at Mumbai on 19-9-2009.  Hence the complaint seeking directions to the opposite party to refund an initial sum invested i.e.Rs.1,08,732/- together with insurance amount, new tyres affixed amount, repair charges, interest, compensation and costs.

Opposite party received notice but did not choose to appear before the District Forum and was set exparte.

The District Forum based on the evidence adduced i.e. Exs.A1 to A26 allowed the complaint in part directing the opposite party to pay Rs.30,000/- towards compensation, loss of business and Rs.3,000/- towards costs.

Aggrieved by the said order, the complainant preferred this appeal and also filed written arguments. 

            It is the appellant/complainant’s case that he purchased the vehicle for Rs.7,16,732/- by availing a loan of Rs.6,08,000/- and paid the balance amount of Rs.1,08,732/- evidenced under Exs.A1 to A3.  The loan was released on 24-6-2006 vide Ex.A2.  The complainant  paid balance sale consideration to Jasper Industries and took delivery of the vehicle.  It is not in dispute that the tenure of the loan was for 45 months commencing from 01-8-2006.  It is the complainant’s case that the Principal amount of Rs.6,08,000/- and interest there on is Rs.1,33,760/- totalling to Rs.7,41,760/- and this if divided by tenure of loan i.e. 45 instalments, the EMI should be Rs.16,484/- instead of Rs.17,250/- as charged  by the opposite party.  Ex.A11 is the statement of account filed by the complainant for the period 17-6-2006 to 06-3-2007 which evidences that he paid Rs.1,39,626/- and he also filed documentary evidence, Exs.A7 and A8 in support of his case that he paid an amount of Rs.35,000/- and Rs.65,861/- in cash.  He also filed Ex.A9 for Rs.30,000/- in cash, Ex.A10 for Rs.50,000/-, Ex.A13 for Rs.65,000/-, Ex.A15 for Rs.20,000/- and Ex.A16 for Rs.32,000/- in support of his case.  It is the complainant’s case that he paid 24 instalments from 1-8-2006 to 18-8-2008 and paid Rs.4,37,487/-.  While so, the vehicle met with an accident on 16-8-2008 and the authorized dealer gave a quotation for Rs.1,16,154/- towards repairs and the said vehicle was not in road worthy condition from 16-8-2008 to 27-10-2008.  The insurance company forwarded the demand draft for Rs.79,600/- in February, 2009 directly to the opposite party and after a week, the opposite party took forceful seizure of the vehicle on 5-11-2008 without any prior notice inspite of the fact that the complainant promised to remit the insurance amount to the opposite party. 

It is the case of the complainant that the opposite party had sold the vehicle without giving any pre sale notice and he instead received an arbitration notice dated 25-8-2009 calling upon him to attend the arbitration proceedings at Mumbai on 19-9-2009 without sending copies of any claim petition.  The complainant vide Ex.A21 and 22 issued a complaint to the Police with respect to illegal seizure of the vehicle.  He got issued a legal notice vide Ex.A25 dated22-5-2009 to the opposite party protesting the sale of his vehicle to third parties and requested the opposite party to release his vehicle.  We rely on the decision of the National Commission in Citicorp Maruti Finance Ltd. VS. S.Vijayalaxmi  III (2007) CPJ 161 (NC) in which it was held by the National Commission that recovery of loan or seizure of vehicle should be done only through legal means and not by forceful possession. This requirement is manifest in para 42 in the following words:

                “This would mean that before repossession no registered

                   notice is given; before sale  also no notice is given and in a

                   high handed manner the vehicle was sold without following

                   the procedure allegedly required to be followed”.

In view of the aforementioned judgement, where it is laid down that a notice should be given prior to sale of the vehicle thereby giving an opportunity to the consumer to participate in the auction proceedings or in the alternate to pay the amount.  In the instant case, we observe from the record that no such pre-sale notice was given.  In fact, opposite party choose to remain exparte before the District Forum.  Even at the appellate stage, no documentary evidence has been filed to establish the due amounts.  Whereas the appellant has proved that he has paid Rs. 4,37,487/- as against the loan amount of Rs.6,08,000/-.  It is also submitted that he got an Arbitration notice but he did not choose to participate in the proceedings.  We rely on the judgement of the Apex Court in CIVIL APPEAL NO. 7543 OF 2004 M/s. National Seeds Corporation Ltd. versusM. Madhusudhan Reddy and another   in which the Apex court held that if a party had opted for Arbitration Proceedings, it is not a bar for the consumer fora to adjudicate the matter and held as follows:

“The trend of the decisions of this Court is that

the jurisdiction of the Consumer Forum

should not and would not be curtailed unless

there is an express provision prohibiting the

Consumer Forum to take up the matter which

falls within the jurisdiction of civil court or any

other forum as established under some

enactment. The Court had gone to the extent

of saying that if two different fora have

jurisdiction to entertain the dispute in regard

to the same subject, the jurisdiction of the

Consumer Forum would not be barred and the

power of the Consumer Forum to adjudicate  

         Upon the dispute could not be negated.”

In Fair Air Engineers (P) Ltd. v. N.K.

Modi (supra), the 2-Judge Bench interpreted that section

and held as under:

“the provisions of the Act are to be construed

widely to give effect to the object and purpose

of the Act. It is seen that Section 3 envisages

that the provisions of the Act are in addition to

and are not in derogation of any other law in

force. It is true, as rightly contended by Shri

Suri, that the words “in derogation of the

provisions of any other law for the time being

in force” would be given proper meaning and

effect and if the complaint is not stayed and

the parties are not relegated to the arbitration,

the Act purports to operate in derogation of the

provisions of the Arbitration Act. Prima facie,

the contention appears to be plausible but on

construction and conspectus of the provisions

of the Act we think that the contention is not

well founded. Parliament is aware of the

provisions of the Arbitration Act and the

Contract Act, 1872 and the consequential

remedy available under Section 9 of the Code

of Civil Procedure, i.e., to avail of right of civil

action in a competent court of civil

jurisdiction. Nonetheless, the Act provides the

additional remedy.

It would, therefore, be clear that the legislature

intended to provide a remedy in addition to the

consentient arbitration which could be

enforced under the Arbitration Act or the civil

action in a suit under the provisions of the

Code of Civil Procedure. Thereby, as seen,

Section 34 of the Act does not confer an

automatic right nor create an automatic

embargo on the exercise of the power by the

judicial authority under the Act. It is a matter

of discretion. Considered from this perspective,

we hold that though the District Forum, State

Commission and National Commission are

judicial authorities, for the purpose of Section

34 of the Arbitration Act, in view of the object

of the Act and by operation of Section 3

thereof, we are of the considered view that it

would be appropriate that these forums

created under the Act are at liberty to proceed

with the matters in accordance with the

provisions of the Act rather than relegating the

parties to an arbitration proceedings pursuant

to a contract entered into between the parties.

The reason is that the Act intends to relieve

the consumers of the cumbersome arbitration

proceedings or civil action unless the forums

on their own and on the peculiar facts and

circumstances of a particular case, come to the

conclusion that the appropriate forum for

adjudication of the disputes would be

otherwise those given in the Act.”

In Skypay Couriers Limited v. Tata Chemicals Limited

(supra) this Court observed:

“Even if there exists an arbitration clause in an

agreement and a complaint is made by the

consumer, in relation to a certain deficiency of

service, then the existence of an arbitration

clause will not be a bar to the entertainment of

the complaint by the Redressal Agency,

constituted under the Consumer Protection

Act, since the remedy provided under the Act

is in addition to the provisions of any other law

for the time being in force.”

In Trans Mediterranean Airways v. Universal Exports

(supra) it was observed:

“In our view, the protection provided under the

CP Act to consumers is in addition to the

remedies available under any other statute. It

does not extinguish the remedies under

another statute but provides an additional or

alternative remedy.”

Keeping the aforementioned judgements in view and also the fact that no statement of account was filed by the opposite party to establish the outstanding dues of the complainant and also that the complainant was not issued any pre-sale notice which is in violation of the law as laid down by the National Commission, we are of the considered view that opposite party committed an act of deficiency in service for which the complainant is entitled to compensation.  The District Forum has awarded a compensation of Rs.30,000/- which the complainant is seeking enhancement stating that he has spent amounts towards  EMIs, insurance, repairs etc.,

          Taking into consideration that the loan amount was Rs.6,08,000/- out of which the complainant paid Rs.4,37,487/- and an amount of Rs.79,600/- was also remitted by the insurance company directly to the opposite party,  exfacie, it is clear that an amount of Rs.4,37,487 + Rs.79,600 =5,17,087/- was paid to the opposite party.  It is also pertinent to note that the opposite party did not issue any pre-sale notice and also intimate the date of auction and even the amount for which the vehicle was sold and did not file any statement of account to substantiate their contention that the complainant was due any amounts.  In the absence of any documentary evidence on record, it is difficult to establish the exact dues of the complainant whereas the complainant on his behalf has established by way of documentary evidence i.e. receipts and cheque payments that he has paid a total sum of Rs.4,37,487/- + Rs.79,600/- (insurance amount).  Having paid almost 90% of the loan amount and having used the vehicle for only two years, the complainant was not given an opportunity, in violation of principles of natural justice as laid down in Citicorp Maruti Finance Ltd. VS. S.Vijayalaxmi  III (2007) CPJ 161 (NC), to get back his vehicle.  Therefore, we are of the considered opinion that he is entitled for compensation of Rs.1,25,000/- which would meet the ends of justice and also keeping in view the facts and circumstances of the case.  We further observe from the record that the opposite party did not prefer any appeal.

          In the result this appeal is allowed in part and the order of the

District  Forum  is  modified  by  enhancing  the    compensation from

Rs.30,000/- to Rs.1,25,000/- and costs from Rs.3,000/- to Rs.5,000/

to be paid within four weeks from the date of receipt of this order.

Sd/-PRESIDENT.

                                                                        Sd/-MEMBER.

JM                                                                     21-2-2012