BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.84/2013
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA -Member
Sri Sudhir Ramchiary, - Complainant
S/O -Late Gaojo Ramchiary ,
Vill. - Bunmajapam
P.O.Khatlapara
Dist: Barpeta(Buxa), Assam
-vs-
I) Tata Motors Limited -Opposite parties
Regional Office
Godrej Building
3rd Floor, G.S.Road, Ulubari, Guwahati
Assam
2) The Tata Finance Limited
Ulubari, Guwahati, Assam
3) Tata Motors Limited
Head Office, Passenger Car Division
5th Floor, One Forbes
Dr.V.B.Gandhi Marg, Mumbai-23
4) Kiron Motor
Adabari, Guwahati
Appearance
Learned advocate Mr. B. C.Choudhury for the complainant .
Learned Mr.S.M.Rahman, Mr.Kabir Saikia for the opp.party
Date of filing written argument:- 21.12.18
Date of oral argument:- 01.03.21
Date of judgment: - 15.03.21
JUDGMENT
1) This is an application U/S 12 of Consumer Protection Act, 1986 by one Shri Sudhir Ramchiary against Tata Motors Ltd. along with Tata Finance Ltd & Tata Motors Ltd. with headquarter at Mumbai & Kiron Motors, Guwahati, as opp. party no-1 to 4. It is alleged that complainant purchased a vehicle from Opp. party no-1 (dealer ) on 24/09/2009 & it was a Tata Winger with Engine No- 50F72339198 & Chassis No-426031 FUZ 100572 along with Registration No- AS 19 C 1485 & it was used for commercial purpose. The opp. party no-2 was the financer & the applicant made a down payment of Rs.1,22,284/- & Rs.55,000/- for insurance & permit totalling Rs.1,89,284/- & also deposited along with blank cheque 16 nos. It is submitted that petitioner paid instalment of Rs.92,283/- to the company but balance amount of Rs.31,550/- could not be deposited to the opp. party.
2) It is alleged that on 26/12/2009 while the driver of the vehicle carrying passenger from Barpeta to Guwahati some 4-5 persons stopped the vehicle claiming that they are the agents of the Tata Finance & forcibly snatched the vehicle from the custody of the driver & took the vehicle towards Guwahati. The driver of the vehicle lodged a verbal complaint at Changsari Police Outpost & subsequently the complainant / petitioner lodged an Azahar at Kamalpur Police Station on 02/01/2010. The Kamalpur P.S registered a case vide Kamalpur P.S case No-06/2010. The Kamalpur P.S submitted final report before the SDJM , Rangia . The complainant accordingly filed this complaint seeking direction to the opp. party for return of Rs.189284/- paid to the opp. party paid at the time of purchasing the vehicle, Rs,92283 paid against instalment along with interest 18% on the entire amount of Rs.244439 with a further prayer for return of 16 nos. of blank cheques deposited by the complainant to the opp. party. After due notices opp. party no-1, 2 & 3 appeared and filed written statement whereas opp. party no-4 have not appeared & the matter proceeded exparte against opp.party No. 4. The contention of the opp. party in their written statement is that at the time of taking loan by the complainant from the opp. party no-1 for the purpose of purchasing the vehicle in question, the opp. party no-2 was functioning as a division of opp. party no-1 and subsequently in the year 2009 opp. party no-2 registered itself under the companies act1956 and started functioning as a separate company having its own legal identity but as the loan agreement signed between the parties during a period when the opp. party no-2 was not in legal existence ,therefore this written statement is being filed together on behalf of the opp. party no-1 & 2 including opp. party no-3 .
3) The contention made by the opp. party in their W/S is that complainant is not a consumer of the opp. parties within the meaning of Sec-2(1) (d) (i) of Consumer Protection Act, 1986 . As the vehicle concerned was purchased by the complainant from the opp. party with financial help and the vehicle was purchased & used for commercial purpose for earning profits and whole transaction was a commercial one for which the complaint petition is liable to the dismissed.
4) It is further alleged that complainant and the answering opp. party entering into a loan agreement where Tata Motors Signed as a financer & complainant as a borrower. The said loan agreement has a arbitration clause . As such the dispute if any need to be settled through arbitration under provision of the Sec- 5 of the Arbitration & Conciliation Act,1996.The opp. party referred a case law “ The Instalment Supply Ltd VS Kangra Ex-Serviceman Transport Co & Another 2006 (3) CPR 399(NC)” . Again the opp. party referred the fact that loan agreement has a clause that the jurisdiction has vested in the court at Mumbai and therefore this forum does not have the territorial jurisdiction.
5) The opp. party retreated further that after signing the loan agreement no-131426 dtd. 29/12/2008 for purchasing a Tata Winger (details of the said loan agreement and vehicle is stated in para-15 below the complainant was supposed to pay the various instalment as per the loan agreement . But as the complainant was not paying the instalments and as a huge dues accrued , the answering opp. parties , by power of the arbitration clause of the said loan agreement , initiated the arbitration proceedings against the complainant as per the Arbitration & Conciliation Act , 1996. The said arbitration case was registered as LOT no- 145/R30419 of 2010 and vide award dated 29/04/2011 the sole arbitrator Mr Nitin Chavan passed the award in favour of the answering opp. parties for an amount of Rs.4,24,838.82/- including of interest and other charged and further interest @12% per annum on Rs.4,24,838.82/- to be computed from 07/09/2010 till the date of payment / realization.
6) It is submitted in the W/S that since arbitration proceeding was initiated and there was a arbitration award the complainant could have challenged the same before the appropriate forum but instead of doing that he filed the present complaint which is liable to be dismissed. It is alleged that complainant petition is barred by limitation under Sec-24 of the Consumer Protection Act,1986. The opp. party further alleged that the statement of account annexed with the complaint petition is not the statement of account of the complainant which reflects the malafide intention of the complainant and for all these grounds the complaint petition is liable to be dismissed.
7) The opp. party by their W/S categorically denied the averments made in different para of the complaint petition & ultimately submitted that complainant had approached this commission with malicious intent to escape from paying the awarded amount Rs.424838.82/- vide award dtd. 29/04/2011 passed by the sole arbitrator & therefore the complainant is not entitled for any relief as claimed & petition is liable to the dismissed.
REASON FOR DECISION
8) After hearing counsel of the parties we have taken notice of Annexure-A regarding a judgment passed by National Consumer Disputes Redressal Commission where it has been clearly observed that in view of the decision of the arbitrator which is binding on parties , the fora below should not have passed an order by overlooking the award .Hence, this revision petition is allowed , orders passed by fora below set aside and complaint dismissed.
9) Having such proposition of law we have considered pleading of the parties following issues are taken for decision:-
i) Whether there is an agreement between the complainant and the opp. party and the matter was refereed to arbitration as per said agreement and award was guaranteed by the sole arbitrator.
ii) Whether the matter of dispute is a commercial transaction and not admissible under provision of Sec-2 (1) (d)(i) of the C.P.Act, 1986.
iii) Whether the dispute is barred by limitation under Sec-24 of the C.P.Act, 1986.
10) From the issue no. 1 as we have already discussed it is undisputed that a arbitration proceeding was initiated and complainant admittedly have not contested the arbitration award taking the plea that he do not know that the copy of arbitration award was annexed with the written statement. Mere denial by C.W.1 Sri Sudhir Ramchiary about arbitration proceeding and award is not sufficient to hold a view that there was no arbitration proceeding.
11) In this regard we have taken notice of documents submitted by o.p.w. no. 1 Sri Sudhir Ramchiary Ext.A is the loan account detail standing in the name of Sudhir Ramchiary containing 5 pages. Ext. B is a certified copy of arbitration award passed by sole arbitrator Nitin Chavan in arbitration case No. L.O.T. 145/R 30419 of 2010 in which the respondent of the arbitration proceeding i,e, present claimant is liable to abide by the order of the sole arbitrator and if he is not satisfied with the arbitration award then he ought have initiated a proceeding at appropriate forum for redressal or for grievances or not being heard etc. but instead of doing so the present consumer petition is filed by the complainant and admittedly no notice was issued by o.p.w. 1 to the complainant about the arbitration award. However we are not concerned about the arbitration proceeding, but we have to find out whether there is any deficiency in service on the part of the oppp.party towards the complainant who claim himself as a consumer in respect of the vehicle purchased by him.
12) Here our attention has been drawn by referring a case law instalment supplied ltd. vs. Kangra Ex-Serviceman Transport on 5 October, 2006 delivered by National Consumer Disputes Redressal Commission where it is observed
“ In view of the decision of the Arbitrator which is binding on parties, the Fora below should not have passed an order by overlooking the award. Hence, this revision petition is allowed. Orders passed by Fora below set aside and complaint dismissed.”
In view of the above , we are of the view that there is a arbitration award which was binding upon both the parties the present issue is decided in favour of the opp.party.
13) So far issue No. II is concerned it is found that the matter of dispute is purely a commercial transaction and if we look at Sec.2(i)(d)(I) of C.O.A.1986 which read as under,
“ in clause (d)
i) in sub-clause (ii) , the following words shall be inserted at the end , namely:-
“but does not include a person who avails of such services for any commercial purpose.”
14) Similarly, issue No. III is also taken for decision where we have found that as per sec24 (a) a complaint is to be admit within 2 years from the date on which the cause of action has arisen . As per record the cause of action for the present complainant arose on 26.7.2009 and complaint petition was filed 26.8.2013 . As the initial stage there was o condonation of the delay petition nor this has recorded any reason for such a delay of filing the complaint . This issue was earlier not raised by either of the party and proceeding was continued. It was a hypothecation business with oop.party No.1 by the complainant and admittedly the loan was repayable in 47 equal instalment as admitted by C.W.1 in his cross examination. It is also admitted by C.W.1 (Complainant ) that he have not mentioned the number of cheque which he deposited to the opp.party No.1, nor have produced any record for such cheque. Hence the issue of depositing cheque become redundant. In all the above discussion the merit of the case goes in favour of the opp.party and we do not find any sufficient cause for passing an award in favour of the complainant. In the result , it is held that the complaint petition is without merit and is dismissed . The parties will bear their own cost.
Given under our hand and seal of the District Commission, Kamrup, this the 15th day of March,2021.
(Smt A.D.Lahkar) (Md J.Islam) (Shri A.F.A Bora)
Member Member President
Dictated and corrected by me
( Shri A.F.A Bora)
President,
District Consumer Commission, Kamrup.
Typed by me
(Smt Juna Borah)
Stenographer, District Consumer Commission, Kamrup.
