The District Consumer Disputes Redressal Forum District Office Premisis, Kolar 563101 consumer case(CC) No. CC/10/10
Chandrappa,
...........Appellant(s)
Vs.
The Chairman The Manager
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 12.01.2010 Disposed on 07.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 07th day of July 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 10/2010 Between:- Sri. Chandrappa, S/o. Chikka Munishamappa, Aged about 35 years, R/o. Dhanavanahalli Village, Chakarasanahalli Post, Kolar Taluk. (By Advocate Sri. C.R. Krishna Murthy) .Complainant. - V/s - 1. The Manager, Magma Finance Corporation Limited, No.40, Foundation House, 4th Floor, 2nd Maqin Road, C.K.C. Garden, Mission Road, Bangalore 27. 2. The Chairman, Magma Finance Corporation Limited, Magma House, No.24, Park Street, Culcata, West Bengal. (By Advocate Sri. A. Lakshmi Narayana & others) .Opposite Parties. ORDERS This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party No.1 to return TATA SE 1613/40 vehicle bearing registration No. KA-07-7828 with compensation of Rs.75,000/- and costs and interest, etc., 2. The material facts of complainants case may be stated as follows:- That the complainant purchased TATA SE 1613/40 bearing registration No. KA-07-7828 with the financial assistance of Rs.8,00,000/- provided by OP.1. The loan was repayable in 46 monthly installment of Rs.23,615/- commencing from 29.02.2008 to 01.02.2012. The complainant made initial deposit of Rs.1,00,000/-. He executed hypothecation agreement and offered surety by name B.C. Rajappa. It is alleged that the complainant was paying the installments regularly and he paid totally Rs.4,01,744/- till 23.09.2009 apart from the deposit amount of Rs.1,00,000/-. It is alleged that recently on 25.10.2009 when complainant visited the office of OP.1 for payment of loan installment the officers of OP.1 told that for non-payment of loan installments they have sold the vehicle in question for Rs.5,85,000/- and adjusted the said amount to loan account. It is alleged that the complainant was very regular in payment of installments and in spite of it without the knowledge and consent of complainant the vehicle in question was wrongfully sold. He also alleged that the value of the said vehicle was more than Rs.10,00,000/- at the time of the alleged sale and that he had spent to the tune of Rs.2,00,000/- towards additional fittings expenses to the said vehicle. Hence he filed the complaint on 12.01.2010 before this Forum. 3. The OPs appeared and filed version. The case of OPs may be stated as follows:- It is admitted that the OPs have accommodated the finance facility to the vehicle TATA SE 1613/42 bearing registration No. KA-07-7828 and the finance was to the extent of Rs.7,70,000/-. It is admitted that the said loan was repayable in 46 monthly installments of Rs.23,615/- commencing from 01.03.2008 to 01.01.2012. It is stated that the total amount repayable by way of installments included the principal and interest and other charges. It is contended that the complainant was highly irregular in payment of installments and to evidence this fact statement of account relating to loan account maintained by OPs is produced. The other allegations made in the complaint regarding the wrongful sale of the vehicle without the knowledge of complainant are denied. It is contended that the complainant became a defaulter in payment of installments from very beginning and in spite of several requests he failed to regularize his account. Further that finding no other option a pre-seizure demand notice dated 12.08.2009 for an amount of Rs.7,68,444/- then due was issued, but the complainant failed to pay the said amount and then the OPs were constrained to repossess the vehicle on 19.10.2009. Further it is contended that on 21.10.2009 a pre-sale demand notice was issued to complainant informing to pay the amount due otherwise the vehicle would be sold and that the said pre-sale notice has been received by the complainant and in spite of sufficient opportunity, the complainant failed to discharge his liability and finally the vehicle was sold on 28.11.2009 at a highest price of Rs.5,85,000/-. It is contended that after adjustment of the sale proceeds an amount of Rs.65,282/- still remains due and payable from the complainant. Further they contended that as per the terms and conditions of the Loan Agreement dated: 29.02.2008, the OPs referred the dispute to the sole Arbitrator and in the arbitration proceedings in spite of the notice, the complainant failed to appear or contest the matter before the Arbitrator and the Arbitrator had passed the award on 31.12.2009. The certified copy of award is produced. It is contended that when once the matter is decided by Arbitrator a complaint in respect of same dispute cannot be entertained by the Consumer Forum. Therefore they prayed for the dismissal of the complaint. 4. The complainant failed to produce evidence within the time allowed. Then the Counsel for OPs stated that he has also no oral evidence. The case was posted for arguments. The Learned Counsel for complainant prayed time for arguments whenever he appeared before us and subsequently he remained absent. We heard the Learned Counsel for OPs. 5. After considering the records and the documents and the decision citied by the learned counsel for OPs our findings are as follows:- The Learned Counsel for OPs relied upon the decision citied in 2006 (3) CPR 339 (NC) between the Installment Supply Limited V/s. Kangara Ex-servicemen Transport Company and another to contend that a complaint cannot be entertained by the Consumer Forum after an Arbitration Award already passed in respect of the same dispute. We perused the records and the documents filed by parties. The first sitting of the Arbitration case was on 24.09.2009. The complainant remained absent in arbitration proceedings. Finally the Arbitrator passed the Award on 31.12.2009. The complaint is filed before this Forum on 12/01/2010. Pre-seizure notice was issued to complainant on 12/08/2009. The vehicle was re-possessed on 19.10.2009. Pre-sale notice was issued on 21.10.2009. The sale was held on 28.11.2009. The highest price fetched in the sale was Rs.5,85,000/-. The perusal of the Arbitration Award shows that the OPs informed all the subsequent events before the Arbitrator. The Arbitrator in his award gave his decision regarding re-possession and sale of the vehicle holding that the OPs have rightly taken possession of the vehicle and sold the same. The principles laid down in the above stated decision relied upon by OPs are as follows:- Award was passed before complaint was filed by respondent No.1. It will thus govern the dispute between the parties. In view of the decision of the arbitrator which is binding on parties, the for a below should not have passed an order by over looking the award. Hence, this revision petition is allowed, orders passed by for a below set aside and complaint dismissed. The facts in the above referred case are similar to the facts in the present case. There the complaint was filed alleging that the vehicle financed was illegally seized, though complainant had regularly paid all the installments and had obtained No Due Certificate from financer. However it was revealed during the proceedings that the financer had already filed an Arbitration proceedings and an award was passed before filing the complaint. Therefore the Honble National Commission has held that the decision of the Arbitrator binds the parties and on the same dispute a complaint cannot be entertained. We think the said principle is applicable in the present case also. Therefore we have to hold that the present complaint is not maintainable. The main grievance of the complainant as made out in the complaint is that though the vehicle was worth more than Rs.10,00,000/- on the date of sale i.e., on 28.11.2009, it was sold only for Rs.5,85,000/-. The complainant alleged that after purchase of the vehicle he spent more than Rs.2,00,000/- towards additional fittings to the vehicle. As already noted the complainant has not led any evidence in support that contention. The OPs have contended that in the sale highest price was secured. They denied that the complainant spent more than Rs.2,00,000/- towards additional fittings for that vehicle. In the absence of evidence it is to be held that the complainant failed to prove the facts alleged by him. Therefore even if it is assumed that the compliant is maintainable we hold that, complainant failed to establish his case. Hence we pass the following:- O R D E R The complaint is Dismissed. Parties shall bear their own costs. (Dictated to the Stenographer, transcribed by him, corrected and then pronounced in Open Forum on this the 07th DAY OF JULY 2010.) MEMBER MEMBER PRESIDENT
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