Date of filing:-06/04/2015.

Date of Order. 10/05/2017.

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)

B A R G A R H

Consumer Complaint No. 26 of 2015.

Mr. Narayan Samartha, S/o-Gangadhar Samartha, At-Near Sales tax office,Ward No-10, P.o./P.s/Dist-Bargarh. ..... ..... ..... ..... Complainant.

-: V e r s u s :-

1) The Branch Manager, Sriram Transport Finance Company Ltd Harigouri Vihar, in front of Telco Service Centre, Near N.H. Ainthapali, Sambalpur.

2. The Branch Manager, Sriram Transport Finance company Ltd,101-105,1^st floor. B.wing Shiva Chambers Sector 11, C.B.D. Belpur, Nabi Mumbai-400614

   ..... ..... ..... ..... Opposite Parties.

Counsel for the Parties:-

For the Complainant :- Sri M. K. Satpathy, Advocate with others, Advocates.

For the Opposite Parties :- Sri. S.K. Mishra, Advocate with others, Advocates.

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.

Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).

Dt.10/05/2017. -: J U D G E M E N T:-

Presented by Sri Krishna Prasad Mishra, President:-

Brief fact of the case ;-

The brief case of the complainant is in accordance with the provision as enumerated U/S 12 of the C.P. Act 1986 thus as.

The Complainant has purchased one Mahindra Maximo vehicle bearing Regd No-OR-17-J-6619 to earn his livelihood for self employment being financed by the Opposite Parties to a tune of Rs.2,60,000/-(Rupees two lakh sixty thousand)only on payment of Rs.94,000/- (Rupees ninety four thousand)only as down payment deposited by the complainant with a condition for repayment of the rest loan amount of Rs.1,65,300/-(Rupees one lakh sixty five thousand three hundred)only in installment fixing as E.M.I. Rs.8,170/- (Rupees eight thousand one hundred seventy)only per month and beside that he was at liberty to deposit any excess amount as and when possible on his part accordingly the complainant was regularly repaying the same to the local agent of the Opposite Parties at Bargarh at different times. But to his ill luck some mechanical defect arosed in the mean time for which he had to take the vehicle to the Authorised service centre of the Opposite Parties and could not ply with the same to which he has complained before the Opposite Party for several time but to no effect causing him much hard ship in continuing the repayment of the said E.M.I. in time for some time but in the mean time he has already paid a considerable amount to the Opposite Parties through their local agent at Bargarh and has conveyed the same to the Opposite Parties.

Further more the case of the Complainant, during such state of affairs the Opposite Parties in the month of March 2013 forcibly took away the vehicle from the possession of the Complainant from Bargarh. And his case is that the Opposite Parties have taken some post dated pre signed cheques from him in liew of the said repayment of loan but in spite of that instead of encashing the said cheques against the said loan took away the vehicle from him forcefully with out following the legal formalities which according to him amounts to deficiencies of service, as he has paid a considerable amount of E.M.I. along with service charges to the Opposite Parties for such service from the Opposite Parties has claimed an amount of Rs.3,50,000/-(Rupees three lakh fifty thousand)only but on the contrary the Opposite Parties have claimed Rs.2,80,000/-(Rupees two lakh eighty thousand)only from the Complainant by giving a notice through his advocate on dtd 27.03.2014 to which his advocate has replied claiming Rs.3,50,000/-(Rupees three lakh fifty thousand)only as compensation and and Rs 10,000/-(Rupees ten thousand)only as litigation expenses on dtd 8.05.2014.thus the cause of action arosed. And in support his such case has relied upon some documents as follows.

1. Notice dtd 27.03.2014 served by the Opposite Party No.1(one).

2. Reply dtd 8.05.2014.served on the Opposite Party No.1(one) on behalf of the Complainant.

3. Postal receipt in support of the notice dtd 8.05.2014.

4. Postal A.D showing the receipt by the Opposite Party.

5. Money receipts showing the payments made by the complainant to the Opposite Parties(11 sheet).

6. Vehicle inventory report copy dtd 29.03.2013.

7. Loan summary of the vehicle (3 sheet).

8. Cash receipt slip (1 sheet).

9. Vehicle repair bill dtd 21.12.2012.(1 sheet).

Perused the record, the documents & the contents therein and after hearing the counsel for the Complainant the case was admitted and notice was served on the Opposite Parties but strangely enough the Opposite Party No.2(two) did not bother to appear before the Forum till yet as a result of which he was set ex-party on dtd 27.06 .2016 and though the Opposite Party No.1(one) appeared on dtd 8.07.2015 filed his version on dtd 14.12.2015 with out even mentioning the date on the version denying the plea of the lively hood of the Complainant and objecting to the jurisdiction of the forum on the ground of limitation and territorial jurisdiction.

Besides that the Opposite Party No.2(two) has objected to the jurisdiction of the C.P. Act-1986 in view of the order of the Arbitration order dtd 25.03.2015. And has admitted the loan part of the case and the amount of repayment as per the schedule for an amount Rs 1,25,787/-(Rupees one lakh twenty five thousand seven hundred eighty seven)only in 47 installments and at the same time claims the default of the Complainant in paying the same as such in his averment made in his version has justified the reposing of the said vehicle from the possession of the Complainant and has claimed an additional amount of 30% DPC claiming the same to have been admitted by the Complainant as has been inserted in the same loan agreement. And as such has declared the Complainant as a chronic defaulter in repaying the loan and sent him notice to sale away the same seized vehicle if he would fail in repaying all his claim amount and also sold the same on 24.01.2014 in open auction for Rs. 1,35,000/-(Rupees one lakh thirty five thousand)only and after adjusting the sale proceed with the loan amount as per his calculation has claimed an amount of Rs.2,80,971/-(Rupees two lakh eighty thousand nine hundred seventy one)only as on dtd 18.03.2014.

In furtherance to his averments on the failure of the Complainant he referred the matter to the arbitrator wherein a case was initiated vide Arbitration Case no-1803/14 and has obtain an award against the complainant in ex-party on dtd 25 .03.2015 and accordingly objected to the case in hand to be out of jurisdiction in view of the said Arbitration award. And in his support has filed some documents to substantiate his case as follows.

1. The copy of the loan agreement.

2. The repayment schedule prepared by the office of the Opposite Party.

3. A letter sent to the complainant and his guarantor dtd 2.03.2013 claiming an amount of Rs.82,197/-(Rupees eighty two thousand one hundred ninety seven)only.

4. Copy of the inventory report dtd 29.03.2013.

5. Copy of the notice of his advocate claiming the complainant to pay an amount of Rs.2,80,971/-(Rupees two lakh eighty thousand nine hundred seventy one)only with additional interest @24%P.A with in seven days or else would be referred to the Arbitrator.

6. The copy of the order of the Arbitrator dtd 25 .03.2015..

On perusal of the pleadings, documents filed by both the parties and on hearing the advocate for both the side some points for adjudication came before us for proper decision of the case under the C.P. Act 1986 as follows.

Firstly whether the present forum has got territorial jurisdiction to adjudicate the case.

Secondly whether the complainant is a will full defaulter in repaying the loan amount to the Opposite Parties.

Thirdly whether the Opposite Parties are deficient in rendering service properly to the complainant.

Fourthly whether the Decision of the Arbitrator is binding on the complainant .

Fifthly whether the complainant is entitled for any relief as sought for by him.

While dealing with the question of territorial jurisdiction of the present Forum, it has been repeatedly contended by the complainant that the Opposite Partie have a branch office at Bargarh and also carries on their business through their agents through whom they used to receive the payments propagate the business policy of the company also reposed the vehicle at the time of requirement,to which there is no rebuttal statement from the side of the o.ps in their version nor in their written arguments nor taken any legal steps to object at the time of admission of the case, which amounts to their admission as such in our view this forum has got jurisdiction to adjudicate the case in hand. Hence answered accordingly in favor of the complainant.

Secondly while dealing with question as to whether the complainant is a willfull defaulter in repayment of the loan. So far as the pleading and documents filed by the complainant it came to our notice that from the very inception of the vehicle being handed over to him he has paid a considerable amount of Rs.94,700/-(Rupees ninety four thousand seven hundred)only as down payment which is a very big amount for a poor rustic villager who has venture to deposit such an amount with a hope to earn his livelihood in addition to that he has been paying Rs.8,170/-(Rupees eighty thousand one hundred seventy)only as E.M.I. and some additional amount as to when was being possible on his part and in such process has already paid Rs.2,39,505/-(Rupees two lakh thirty nine thousand five hundred five)only as per the payment schedule furnished by the Opposite Party in addition to the statement of account furnished by the complainant too. And in addition to that when the vehicle became defunct due to some technical problem he has reported the same to the Opposite Party but they did not adhear to, for which he has defaulted in repaying some installment being saddled with huge amount of service charges @ 30% which is very much unreasonable and arbitrary one, such action of the Opposite Party proved to be arbitrary and one sided loan agreement executed by them taking advantage of the innocency of the complainant more over in spite of his hardness the complainant has paid the last installment up-to dt15.01.2013, but with out giving an opportunity for further payment or noticing for the same on March 2013 they have taken over the possession of his vehicle forcefully which clearly proves the ulterior motives of the Opposite Party. Hence in our view the Complainant is never a willfull defaulter in repaying the loan amount rather is a victim of the unethical business tactics of the Opposite Party which can be safely derived from the action of the Opposite Parties as the Opposite Party No.2(two) did not turn of to attend the forum in spite of notice being sufficiently served on him ,and the intentional delay of the Opposite Party No.1(one) in filing it’s version so lately which clearly reveals from the record in spite of knowing the provision envisaged in the Act that it runs in summary trial and time bound for filing the version in accordance with the provision. Hence our views goes in favor of the complainant.

Thirdly whether the o.ps are deficient in rendering proper service to the Complainant in this context the allegation of the complainant is that he has been paying the loan amount regularly but after some time the vehicle started giving trouble as such could not run the same resulting to his delay in paying the installment in time and the Opposite Partie did not adhere to his complaint, but there is is no rebuttal reply from the side of the Opposite Party to that effect which proves their deficiencies in giving service to him more over while going through the entire loan agreement executed by the Opposite Partie it clearly reveals their ulterior motives as there is not even a whisper of any condition for the safe side of the Complainant from where it can be safely concluded that the same has been prepared only to safe guard their interest alone, more over it is so voluminous that it is not possible on the part of a common man like the complainant to understand the same nor any endorsement is clearly made to the effect that it has been read over and explained to the complainant which is violative to the principle of natural justice ,on the plinth of which alone the purpose of the enactment of the C.P. Act 1986 stands,hence our views goes in favor of the complainant and answered accordingly in his favour.

Fourthly while dealing with the question as to whether the decision of the arbitrator is binding on the complainant, with much care caution and humbly tried to deal with the same, as the the counsel for the o.p has cited some decisions along with the decision of the Honorable N.C reported in the year 2006(3) C.P.R.339(NC). All other citation filed by the opposite party are not applicable to this case. So with much care and utmost regard we have ventured to go in to the said points of law guided by his Highness in the above mentioned decision, but having gone through the entire decision it came to our notice that in that case both sides of the parties have been given proper chance of hearing and presenting their respective please and documents in their respective cases and on the basis of that only the Honorable commission have given their verdict but the fact of that case was quite different from the fact of the present case more over here in this case the complainant has not been properly intimated neither by properly noticing him nor by intimating him through a regularly published widely circulated daily news paper and has misrepresented and suppressing the total materials facts before the Honorable Arbitrator has obtained an Ex-Party award,As such taking the very purpose of the legislation of the C.P.Act 1986.in to our consideration and considering the fact that the complainant was also not informed about the award of the Honorable arbitrator at the time of filing the present case we are of the humble view that the Decision of the Arbitrator is not binding on the Complainant. And also while passing such of our view we have relied upon the decision of the Honorable N.C reported in year 2008 (1) C.P.C.448 wherein their Highness has taken the C.P.Act as an additional remedy and has opined that mere existence of Arbitration clause does not oust the consumer jurisdiction. As such is our view as aforementioned.

Fifthly while considering as to whether the complainant is entitled for any relief as sought for by him,As we have already discussed total fact and law of the case in hand and given our views in favor of the complainant,the question with regard to his entitlement for relief sought for him also goes in his favor for which both Opposite Party No.1(one) & No.2(two) are jointly and severally liable. Hence Order follows.

O R D E R

Hence the opposite parties are jointly and severally liable to compensate the complainant as such are directed to pay Rs.2,39,505/-(Rupees two lakh thirty nine thousand five hundred five)only the deposited amount of the complainant and as compensation Rs.20,000/-(Rupees twenty thousand)only and Rs.1,000/-(Rupees one thousand)only as litigation expenses within 30(thirty) days from the date of order with an interest @ 9%(nine percent) from the date of filing of the case in default of which the same amount would accrue an interest @ 12%(twelve percent) till the date of realization of the same. Hence the the complaint against the o.ps are allowed.

The order is pronounced in the open Forum,accordingly the case is disposed off to day i.e on dtd 10.05.2017.

Typed to my dictation

and corrected by me.

( Sri Krishna Prasad Mishra)

P r e s i d e n t.

I agree, I agree,

(Sri Pradeep Kumar Dash) ( Ajanta Subhadarsinee)

M e m b e r. M e m b e r (W)