The Complainant has filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Branch Manager, Sriram Transport Finance Company Ltd., Balasore and O.P No.2 is the Managing Director/ Chief Executive Officer of Sriram Transport Finance Company Ltd., Chennai.
2. The case of the Complainant in brief is that the Complainant in order to maintain his livelihood, had purchased a second hand old mini truck on 20.06.2007 bearing Registration No.OR-05W-3294 for Rs.3,40,000/- (Rupees Three lakhs forty thousand) only being refinanced by the O.Ps, on payment of Rs.1,00,000/- (Rupees One lakh) only towards down payment. All the documents related to the vehicle have been seized and taken by the O.Ps. The Complainant has repaid a sum of Rs.2,84,750/- (Rupees Two lakhs eighty four seven thousand fifty) only towards loan account and due to repair of the said vehicle amounting Rs.1,47,000/- (Rupees One lakh forty seven thousand) only, he could not pay two instalments, which the Complainant intimated to the O.Ps orally. But, the O.Ps dragged the vehicle on 15.01.2017 from Soro Bazar, just after repair of the said vehicle, thus forcibly repossessed the vehicle illegally and also the original receipts of repair of Rs.1,47,250/- (Rupees One lakh forty seven thousand two hundred fifty) only had been taken by the O.Ps. Accordingly, the driver of the said vehicle reported the said matter to I.I.C, Soro in the knowledge of the Complainant. The police Officials without registering F.I.R, investigated and disclosed that the O.P No.1 has repossessed the vehicle. The O.P No.1 intimated about the repossession of same to the Complainant through under certificate of posting, which was received by the Complainant on 27.05.2017. The O.Ps neither served any notice of repossession nor seizure to the Complainant relating to the above said vehicle. With the intervention of Soro Police, the O.Ps will release the vehicle to the Complainant on payment of Rs.50,000/- (Rupees Fifty thousand) only by the Complainant to the O.Ps. Accordingly, the Complainant deposited a sum of Rs.50,000/- (Rupees Fifty thousand) only before O.P No.1 on 15.03.2018, but the O.P No.1 neither handed over receipt nor released the vehicle to the Complainant and the I.I.C, Soro refused to interfere in the matter further. The O.Ps attempt to sale the vehicle, thus amounting to deficiency of service and unfair trade practice and causing mental agony and financial loss to the Complainant from 15.01.2017 to till date. Cause of action to file this case arose on 15.01.2017. The Complainant has prayed for payment of Rs.7,56,750/- (Rupees Seven lakhs fifty six thousand seven hundred fifty) only including compensation for mental agony and litigation cost or to release and hand over the running vehicle with the rest due to be paid by him. Neither the Complainant nor his Advocate was present at the time of hearing of this case.
3. Written version filed by the O.Ps through their Advocate denying on the point of maintainability, jurisdiction as well as it’s cause of action. The O.Ps have further submitted that the vehicle in question is a heavy commercial one. Therefore, the Complainant cannot be treated to be a “Consumer” as defined in Sec-2(d) (ii) of the C.P Act-1986. The present Complainant is guilty of suppression of facts and malicious misrepresentation. The fundamental maxim is that the plaintiffs in equity most come with perfect propriety of conduct, or with clean hands. The Complainant has himself admitted in the complaint petition that he could not pay regular installments. Thus, the O.Ps had no other option then to recover their legitimate dues and to repossess the vehicle. The Complainant has himself admitted in his complaint petition that he had lodged F.I.R of stealing of his vehicle before Soro P.S, but Soro Police without registering the F.I.R made primary investigation and disclosed that the O.Ps had repossessed the concerned vehicle and that the intimation regarding repossession was intimated to him. It is pertinent to mention that the complaint is not maintainable as the loan agreement contains the clause for Arbitration, where all the disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator. Accordingly, the dispute was referred to the learned Arbitrator Shri Justice M Papanna vide Arbitration Proceeding No. ARBP 294/2013 and the learned Arbitrator has been pleased to pass Award on 28.02.2014 directing the Complainant to pay Rs.5,48,892/- (Rupees Five lakhs forty eight thousand eight hundred ninety two) only along with interest @ 18% per annum on Rs.5,48,892/- (Rupees Five lakhs forty eight thousand eight hundred ninety two) only from 28.02.2014 till the date of realization. The Complainant neither complied to the order nor challenged the award, for which the O.Ps have filed execution case bearing Execution Case No.65 of 2014 before the Court of District Judge, Balasore for execution of the award. In respect of the same issue, the Complainant had filed a Civil Suit in the Court of Civil Judge, Jr. Division, Balasore bearing C.S No.152/13, which was dismissed on 07.09.2015. The Complainant has filed this case maliciously to get rid of the loan liability and to escape from the execution case initiated against him by the O.Ps. Moreover, the concerned vehicle having already been auctioned and sold, the prayer of releasing the vehicle is not maintainable and therefore, the present complaint is liable to be dismissed with cost.
4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-
(i) Whether this Consumer case is maintainable as per Law ?
(ii) Whether there is any cause of action to file this case ?
(iii) To what relief the Complainant is entitled for ?
5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. Neither the Complainant nor his Advocate was present at the time of hearing of this case. So, his pleading remains as it is. In his pleading, he has taken the plea that without any prior notice, the vehicle was repossessed by the O.Ps and also attempted to sale the vehicle, which amounts to deficiency of service and unfair trade practice on the part of the O.Ps, causing mental agony and financial loss to the Complainant. Thus, he has filed this case praying for payment of Rs.7,56,750/- (Rupees Seven lakhs fifty six thousand seven hundred fifty) only including compensation and litigation cost or to release and hand over the running vehicle with the rest due to be paid by him. On the other hand, it has been argued on behalf of the O.Ps that all the allegation of the Complainant is false and he has knowledge about repossession of the vehicle by the O.Ps. Moreover, the important clause is that there is an arbitration clause and the dispute was referred to the sole arbitrator. The Ld. Arbitrator has disposed of the case by passing award on 28.02.2014 in Arbitration Proceeding No. ARBP 294/2013 directing the Complainant to pay Rs.5,48,892/- (Rupees Five lakhs forty eight thousand eight hundred ninety two) only with interest @ 18% per annum from 28.02.2014 till the date of realization. The Complainant neither complied to the order nor challenged the award, for which the O.Ps have filed an execution case bearing Execution Case No.65 of 2014 before the Court of District Judge, Balasore for execution of the award. Thus, the case is not maintainable. In support of it, reliance can be placed upon the authority reported in Revision Petition No. 2363 of 2002 in the case of Instalment Supply Ltd. (Vrs.) Kangra Ex-Serviceman Transport Co. and Anr., where in it has been held by the Hon’ble National C.D.R Commission that after an arbitration award is already passed, the Consumer Fora cannot decide the Consumer case.
6. So, in that sole ground, this Consumer case is not maintainable and the Complainant is not entitled for any relief as prayed for in this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 12th day of December, 2018 given under my Signature & Seal of the Forum.
