Hon'ble Mr. Haradhan Mukhopadhyay, President.
The pith and substance of the case of the Complainant is that the Complainant Maphuja Bibi purchased one Mini Bus bearing No. WB 63 A1391 for her livelihood with the financial help of OP. As per the terms and conditions of the loan agreement the Complainant paid all loan amount to the extent of Rs.29,300/- approximately. On 19.09.17 some unauthorised person of the O.P. No.1 the Branch Manager, Indusind Bank snatched the Complainant’s vehicle at Station Chowpathy, Cooch Behar from the driver of the Complainant and issued one repossession inventory list without mentioning any date and without any written information of the Complainant. Subsequently, the Complainant went to the Officer of the O.P. No.1 to clear up the due and demanded her snatched vehicle but the OP did not respond to that. On 11.10.17 the Complainant sent a Lawyers notice to the O.P. No.1 to clear up the due amount which they received and replied on 17.10.17. The Complainant came know from the notice that the OP also issued pre-sale notice dated 21.09.17 but the Complainant did not receive any pre-sale notice. Subsequently, the Complainant sent Lawyers notice on 16.11.17 and 27.12.17 to the O.P. No.1 against which they replied. Without any information to sale and returning the sale price the activities of the OP amounts to deficiency in service and unfair trade practice. The cause of action arose on 19.09.17 and on other dates and lastly on 09.01.18. The Complainant therefore prayed for a direction to the OP to hold that seized of the vehicle and sale out of the said vehicle are illegal, a direction to the OP to pay Rs.1,50,000/- for deficiency in service and to pass an order for Rs.10,000/- towards litigation cost and other relief if any.
The O.P. No.1 & 2 the Branch Manager, Indusind Bank Limited Cooch Behar and the Branch-in-charge Indusind Bank Limited, Sevoke Road, Siliguri contested the case by filing written version denying each and every allegation of the Complainant. The positive case of the O.Ps in brief is that the Complainant suppressed materials fact. The disputed vehicle bearing No. WB 63 A1391 was absolutely used for commercial purpose. It was not purchased for livelihood purpose and the entire transaction is a commercial one hence, the Complainant is not a consumer within the meaning of consumer protection Act, 1986. The Complainant could not file any documents to show that due to illness of the husband, the Complainant purchased the said vehicle. The Complainant was a chronic defaulter in payment of the loan by means of EMI within stipulated time. The EMI was Rs.22,150/- for first five months and Rs.22,350/- for the remaining months but the Complainant did not comply with the said requirement. Due process of law was followed during the repossession of the vehicle in question, an inventory list was also prepared and was duly signed by the driver of the vehicle. Verbal intimation was given to the Complainant to pay her dues but she never paid any heed to the requests. The said repossession of the vehicle was made persuant to an order of the Ld. City Civil Court at Calcutta. The OP also sent pre-repossession and post-repossession intimation to the Cooch behar PS. The said re-possession was on the basis of an order passed under section 9 of arbitration and conciliation Act, 1996 alongwith a pre-repossession and post-repossession intimation to the PS. The arbitration award in the said subject matter has already been passed which by the influx of time has become the decree of the Court. So this Commission does not have any jurisdiction to entertain this case. After selling the vehicle the OP suffered a loss of Rs.1,30,823/- and to recover the said deficit an arbitration proceeding was initiated before the sole arbitrator Shri S.G. Ramesh Cumar, Advocate. On 11.05.18 an arbitration award was passed by the sole arbitrator directing the Complainant to pay Rs.86,187/- towards the claim, Rs.2000/- for arbitrator fees and Rs.5000/- towards cost. This Commission does not have any jurisdiction to entertain the complaint as an arbitration award has already been passed in the same subject on 11.05.18. Therefore the case is not maintainable in law. The Complainant claimed that the case is liable to be dismissed in-limine.
The allegation and counter allegation by the Complainant and the O.Ps raises some important points regarding the conflicting the matter an issue which are required to be decided on the basis of the evidence available in the case record. In order to proper adjudication of the case as well as the assessment of the evidence the following points are required to be determined.
PONTS FOR DETERMINATION
- Whether the Complainant is a consumer under the CP Act?
- Whether the case is barred by any law regarding jurisdiction of this Commission?
- Whether the Complainant/Petitioner is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Point No.1.
This point relates to ascertainment as to whether the Complainant is a consumer or not. The OP challenged the status of the Complainant as a consumer. The plea of the OP is that the Complainant purchased the said vehicle bearing Registration No. WB 63 A1391 for commercial purpose and not for her livelihood. It is this specific claim of the Complainant that her husband felt ill, so she purchased the said Tata Omni Bus for their livelihood. There is no denial about the purchase of the said disputed Bus by the Complainant but the owner shifted upon the OP to establish that the said Bus used to run for any commercial purpose other than earning livelihood. The OP could not file any documents to show that the Complainant let out the said Bus to any third person for hiring it on regular basis.
So also there is no documents within the fore corner of the case record to show that there was any income of the Complainant from the said Bus by running it on commercial basis. The notice of the OP dated 09.01.18 discloses the fact that the Complainant took financial assistance from Indusind Bank Cooch Behar to purchase one Tata Marcopolo Star Bus vide loan No.WNO00567L. So it clearly establishes that the disputed Bus was purchased in loan by the Complainant from the OP.
Thus after perusing the pleadings of the parties and having considered the nature of the transaction between the parties reasonable inference is drawn that the Complainant is a consumer under the CP Act.
Accordingly, the point No.1 is answered in affirmative on behalf of the Complainant.
Point No.2.
The question as to whether the case is barred under any law regarding the jurisdiction of this Commission is the point under discussion. The OP alleged that the dispute was referred to arbitration proceeding wherein the matter has been settled. The arbitration award with the influx of time has taken the shape of decree of a Court. So this Commission does not have any jurisdiction to entertain the case.
This part of pleading of the OP clearly imposes the onus upon the OP to establish that there was an arbitration clause in the purchase agreement between the parties and that the said arbitration was held by following all the provisions of law.
After perusing the case record it is found that the OP did not file any scrap of paper to show that there was any arbitration agreement between the parties or that there was any clause in any purchase agreement between the Complainant and the OP that in the event of any dispute between them the matter shall be referred to an arbitrator or that the decision of the arbitrator will be final and binding and it cannot be referred to the Consumer Commission.
In fact the right to lodge the complaint by a consumer to protect his right for redressal of any grievance of deficiency in service, cannot be contracted out by means of any agreement between the parties.
Thus in view of the aforesaid legal provisions and undergoing the documents available within the case record the Commission comes to the findings that there is nothing to show that there was any arbitration agreement between the parties or that the said arbitration proceedings was held after following all the legal provisions of the Arbitration Act. In fact the O.Ps took the defence plea of arbitration proceedings in a very casual and technical manner and as such they deliberately failed to prove the onus shifted upon him in regard to defence plea that the case is barred by any law or this Commission does not have jurisdiction to entertain this case.
Apart from this the OP also pleaded in defence that the re-possession of the disputed vehicle was taken by virtue of an order of Ld. City Civil Court at Calcutta. They also pleaded that they sent pre-possession and post-possession intimation to the Cooch Behar Police Station. After perusing the case record it is found that the OP did not bother to bring the actual defence plea through any valid and cogent evidence before this Commission. The OP did neither file any document relating to the order of the Ld. City Civil Court, Calcutta nor did they produce any notice of re-possession or pre-repossession to the Cooch Behar Police Station. Therefore all the defence plea to counter the case of the Complainant in this regard stands failed.
Consequently I come to the inference that the case is not barred by any law and the Commission has jurisdiction to entertain the present case.
Point No.2 is thus answered in positive and goes in favour of the Complainant.
Point No.3 & 4.
In ascertaining the point as to entitlement of relief the matter in dispute is required to be discussed on the basis of the evidence available in the case record and its assessment thereof. It is the admitted position that the Complainant purchased the disputed Motor vehicle bearing No. WB 63 A1391 from the OP Company by means of some instalments of loan. The Complainant in order to establish the claim filed the certificate of registration of the disputed vehicle as Annexure-A. It is the specific plea of the Complainant that he paid Rs.22,150/- as EMI in 46 instalments for the period October, 2015 to July, 2017. The Complainant categorically stated through his legal notice that the OP is entitled to get Rs.29,300/- from the Complainant. She was willing to pay this said money and contacted to the OP several times but the OP refused her and dragged the matter for in different period. The OP through their legal notice admitted the purchase through instalment of Rs.22,150/- per month for a period of 46 months. The OP categorically admitted that till 17.10.17 i.e. the date of reply to the notice the Complainant failed to pay the four monthly instalments. The OP also admitted that having found no alternative they took re-possession the vehicle peacefully on 19.09.17 as per the clause of hypothecation agreement. Despite the claim that they handed over the re-possession inventory to the driver of the vehicle, the OP could not file the said copy of the inventory before the Court. Therefore the plea of the Complainant that re-possession was not made properly and it was in violation of specific provision of law is justified and acceptable.
The OP also claimed that the pre-sale notice was served on 21.09.17. But the OP did not discharge the said onus to prove that the notice was served to the Complainant against the re-possession of the vehicle and pre-sale notice.
The averment made in the complaint and the evidence on record by the Complainant vis-à-vis evidence of the OP clearly established that the Complainant was ready to come to the settlement for repayment of his outstanding loan amount but the OP suddenly re-possessed the disputed vehicle in a manner which is not recognised by law.
The OP claimed that the dispute was finally settled through arbitration agreement as per hypothecation agreement.
After perusing the said finding of the arbitration proceedings it transpires that the arbitration was held in absence of the Complainant, ex-parte. The OP could not file any document to show that notice of arbitration was served upon the Complainant, in addition to the duty of the OP to produce before the Court that there was any arbitration clause in the hypothecation agreement. There is nothing within the four corner of the case record to show that how the notice of the arbitration proceedings was served upon the Complainant. The OP did not file or prove a scrap of paper to establish that any notice of arbitration was served upon the Complainant or that it was sent to her registered address.
Thus after assessing the entire evidence and case record it transpires that the Complainant proved the claim that the O.Ps acted in a manner which is not permitted by the law. The demeanour of the O.Ps in regard to taking re-possession of the vehicle tantamounts to deficiency in service for which the Complainant is entitled to get the relief in the form of some monetary compensation for mental pain and agony.
Accordingly both the issue Nos. 3 & 4 are answered in affirmative and decided on behalf of the Complainant.
In the result the case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/16/2019 be and the same is allowed on contest with cost of Rs.10,000/-. The Complainant do get an award of Rs.30,000/- towards deficiency in service and Rs.10,000/- towards litigation cost.
The O.Ps are directed to pay a sum of Rs.40,000/- to the Complainant within one month from the date of passing the award failing which the Complainant shall be entitled to recover it by means of execution alongwith interest @ of 6 % per annum from the date of passing the order till the date of realization.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
