DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT

                                                           C.C. No- 785/2016

  MA-210/2017

  Date of Filing:                                                          Date of Disposal:

   06.09.2017                                                                  11.09.2017

 Complainant:-    Smt.Archana Das, W/o Sri. Sekhar Chandra Das,

                               70, M.G. Road, Ramprasad Nagar, P.O. & P.S.-Nimta,

                               Kolkata-700 049, District-North 24 Parganas.

                                                                      Vs.

Opposite Parties:- 1) The Manager, R.D. Motors Private Limited (Tata Motor),

                                       149, B.T. Road, Kamarhati, Kolkata-700 058,

                                       District-North 24 Parganas.

                                    2) The Manager, M/s. Tata Motor Finance Limited,

                                         5/1A, Hunger Ford Street, Kolkata-700 017.

                                    3) The Manager,

                                         M/s. Tata Finance Limited, Bombay House,

                                       24, Homi Mody Street, Mumbai-400001.    

P R E S E N T :-   Sri. Bankim Chandra Chattopadhyay…………President.

                        :-  Sri.  Siddharta Ganguli  ….………………………Member.

                        :-  Smt  Silpi Majumder………………………………Member.

ORDER No : 08

This order is arising out of the MA being no-210/2017 filed by the OP-2 in the Consumer Complaint no-785/2016 challenging the maintainability of the complaint.

It is contended in the application that the transaction between the Complainant and the OP-2 is only a financial transaction and the essence of the transaction is only for extension of credit for purchasing of a vehicle. The nature of transaction by and between these parties cannot be classified as a consumer complaint as the OP-2 cannot be termed as service provider. The OP-2 has acted merely as an intermediary in providing credit to the Complainant in order to purchase a vehicle from the OP-1. There is no instance of consideration which the Complainant either paid or promised or partly paid and partly promised to this OP, rather the OP-2 has sanctioned the loan amount in favour of the Complainant. Hence the Complainant does not come with the purview of the definition of ‘consumer’ in view of the Consumer Protection Act, 1986. So as the Complainant is not a consumer, this complaint should be dismissed in limine with cost. Further the Complainant has entered into an agreement during sanctioning of the loan and in the said agreement an Arbitration Clause exits, hence this Ld. Forum cannot adjudicate this complaint and for redressal of any grievance of the Complainant she is under obligation to approach before the Arbitral Tribunal in terms of the loan agreement. The OP-2 has stated that until and unless this application is allowed, the OP-2 will suffer irreparable loss and injury and accordingly prayer is made for allowing the instant application.

The said MA has been contested by the Complainant by filing written objection mentioning she is a consumer of the OP-2 and the OP-2 is the service provider as the OP-2 has sanctioned loan in her favour for purchasing the vehicle. Inspite of existence of Arbitration clause in the agreement, this Ld. Forum has ample scope to entertain this complaint in view of the Section-3 of the Consumer Protection Act, 1986. According to the Complainant this application is misconceived; vexatious one and the same is filed by the Op-2 with a view to delay the proceeding, which cannot be supported. The Complainant has prayed for dismissal/rejection of the application with exemplary cost.

We have carefully perused the content of the application filed by the OP-2 challenging the maintainability of the complaint and objection filed by the Complainant. From the petition of complaint it is evident to us that admittedly the Complainant obtained financial assistance from the OP-2 for purchasing a vehicle and at the time of taking out the loan both parties have entered into an agreement wherein an Arbitration Clause is mentioned stating that in case of any grievance the Complainant should approach before the Ld. Arbitrator and the dispute will be redressed through arbitration proceeding. The contention of the OP-2 is that the Complainant is not a consumer as no consideration has been paid to him. In this respect we are of the view that as per the Section 2 (1) (o) of the Consumer Protection Act, 1986 the service rendered by any financial institution shall be termed as ‘service’. Therefore in view of the said Section/definition the service provided by the OP-2 is can certainly be termed as ‘service’ and hence as the OP-2 is the service provided then obviously the Complainant can easily be termed as ‘consumer’ because the OP-2 has extended service to this Complainant. Moreover in lieu of sanction loan amount in favour of the Complainant the vehicle of the Complainant is hypothecated with the OP-2 and until and unless the entire loan amount along with interest as per the agreement is re-paid by the Complainant, the Complainant cannot be the real owner of the said vehicle.

Therefore in our considered opinion the Complainant is a consumer within the purview of the definition of ‘Consumer’ as enumerated in the Consumer protection Act, 1986.

Now we are to see as to whether this complaint can be adjudicated upon by this Ld. Forum or not due to existence of an Arbitration clause in the agreement in which both parties have entered into. The Ld. Counsel for the Complainant has placed reliance on the judgment passed by the Hon’ble NCDRC, reported in I (1999) CPJ 67 (NC), wherein it has been held that mere existence of an arbitration clause should not come in the way of aggrieved party for seeking legitimate relief under the Consumer Protection Act.

But we are to mention to the judgment of Kishore Lal vs. Chairman, Employees’ State Insurance Corporation (2007) 4 SCC 579, where the Hon’ble Supreme Court has held that-

‘The trend of the decisions of this court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.’

In Skypak Couriers Limited vs. Tata Chemicals limited (2000) 5 SCC 294) the Hon’ble Supreme Court has again in the context Arbitration Act, 1940 observed as under:-

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal agency, constituted under the Consumer Protection act, since the remedy provided under the act is in addition to the provisions of any other law for the time being in force.”

In the paragraph no-66 of the Madhusudhan Reddy’s case (supra) the Hon’ble Supreme Court has held that-

66. “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer act. However, if he chooses to file a complaint in the first instance before the competent Consumer forum, then he cannot be denied relief by invoking section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of section 3 of the Consumer Protection Act makes it clear that the remedy available in that act is in addition to and not in derogation of the provisions of any other law for the time being in force.”

Very recently the Hon’ble National Commission has passed one judgment on 13.05.2013 in the Revision Petition no-412/2011 in a case of DLF Limited vs. Mridul Estate Private Limited, based on the abovementioned judgment, wherein it has been held that Consumer Forums constituted under the C.P. Act are not bound to refer the dispute to the arbitrator in view of the arbitration clause mentioned in any document of the OP. In the said judgment it has been further mentioned that complaint filed by a consumer before the Consumer Fora would be maintainable despite there being arbitration clause in the agreement to refer the dispute to the Arbitrator. Remedy provided under the C.P. Act is a special remedy with objective of redressal of grievances of affected consumers in an expeditious and non-expensive manner. If small consumers are relegated to Alternative Dispute Resolution mechanism of arbitration, remedy provided under the C.P. Act would become illusionary.

            In view of the abovementioned judgments of the Hon’ble Supreme Court as well as the National Commission we are of the view that in the case in hand though there exits one Arbitration Clause in the terms and the conditions of the agreement, this complaint is very well maintainable before the Consumer Forum in view of the Section-3 of the Consumer Protection Act, 1986.

 Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.              

Member                                       Member                                                            President

Dictated and corrected by me: