State Consumer Disputes Redressal Commission
Manager Indusind Bank Ltd. vs Ashok Kumar Patel & Ors. on 9 December, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/496
Instituted on : 13.08.2014
Manager, IndusInd Bank Limited,
(Formerly Ashok Leyland Finance Limited
Now merged with IndusInd Bank Limited),
A Company incorporated Under Companies Act, 1956
and having its Consumer Finance Division Office
at Chennai and inter alia a Branch office
At - Transport Nagar, Korba & State Office at 340-345,
3rd Floor, Ravi Bhawan, Jaistambh Chowk, G.E. Road,
Raipur (C.G.)
Represented through : Mr. Pushpendra Choudhary,
Manager Legal (ARD) and Attorney. ... Appellant.
Vs.
(1) Ashok Kumar Patel, S/o Shri Shiv Prasad Patel,
Quarter No. - 103, Sector - 5/A, Balco Nagar,
Post Office : Balconagar,
Tehsil and District - Korba (C.G.)
(2) Manager, Mr. Arun Agrawal,
M/s Radhe Ashok Leyland,
Shri Radhe Ashok Leyland Service Pvt. Ltd.,
Opposite Government Higher Secondary School,
Dayalbandh, Gandhi Chowk,
Bilaspur (C.G.).
(3) Ashok Leyland Company Limited,
Bilha, Bilaspur,
Tehsil and District : Bilaspur (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
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COUNSEL FOR THE PARTIES: -
Smt. Nupur Pal, for the appellant.
Shri Ajay Rajwade, for respondent No.1.
Shri Sunil Otwani, for respondent No.2.
None for respondent No.3.
ORDER
Dated : 09/12/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 09/06/2014, passed by District Consumer Disputes Redressal Forum, Korba (C.G.), (henceforth called "District Forum") in Complaint Case No.CC/2007/02. By the impugned order, the District Forum has allowed the complaint of the respondent No.1 (complainant) and directed the appellant ( (O.P. No.2) and respondent No.2 (O.P.No.1) to jointly and severally provide within a period of two months from the date of order a 10 wheeler double crown Highwa vehicle of Ashok Leyland Company to the respondent No.1 (complainant). After one month from providing the above vehicle to the respondent No.1 (complainant), the appellant (O.P. No.2) will receive amount of instalments as agreed between the parties. The appellant (O.P.No.2) will adjust the amount of the instalments, which were earlier deposited. The calculation of the interest in respect of the loan amount, be made from the date when the vehicle has been provided to the respondent No.1 (complainant) . The respondent No.3 (O.P. No.3) has been exonerated from the liability. The appellant (O.P.No.2) and respondent No.2 (O.P.No.1) have further been directed to pay a sum // 3 // of Rs.25,000/- towards compensation for mental agony and a sum of Rs.5,000/- towards cost of litigation to the respondent No.1 (complainant).
2. Briefly stated, the facts of the case are that a Highwa No.2516 double crown 10 wheelers was purchased by the respondent No.1 (complainant) from the respondent No.3 (O.P.No.3) at the cost of Rs.15,96,873/- with the assistance of finance provided by the appellant (O.P.No.2) to the tune of Rs.13,59,000/-, rest of the amount was paid by the respondent No.1 (complainant). Later on it was observed that the respondent No.3 (O.P. No.3) cheated the respondent No.1 (complainant) and contrary to the promise made, at the place of double crown Highwa vehicle, only single crown Highwa vehicle was delivered to the respondent No.1 (complainant). Thus, the vehicle was not as promised and so it was an unfair trade practice on the part of the respondent No.2 (O.P. No.1). It has also been averred by the respondent No.1 (complainant) in the complaint that the vehicle in question was taken into possession by the appellant (O.P.No.2) under the assurance that as it is a single crown Highwa vehicle, so it is not as per the terms of the finance provided by the appellant (O.P. No.2). It has also been averred that two months' installment against the financed amount Rs.80,000/- were paid by the respondent No.1 (complainant) to the appellant (O.P.No.2), even then the vehicle in // 4 // question was repossessed and thus it committed deficiency in service. Hence the respondent No.1 (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. Before the District Forum, the respondent No.2 (O.P.No.1) had not appeared in spite of service of notice, therefore, he was proceeded ex-parte.
4. The appellant (O.P.No.2) filed its written statement and averred that the terms of the loan agreement were violated by the respondent No.1 (complainant), therefore, the vehicle in question was taken into possession by the appellant (O.P.No.2), a per the terms of the agreement. It has also been pleaded by the appellant (O.P.No.1) that the vehicle in question was purchased by the respondent No.1 (complainant) for commercial purpose and it has not anywhere been pleaded in the complaint that it was purchased for earning livelihood by self employment. Thus, the respondent No.1 (complainant) , does not come in the category of 'consumer' as per definition given in the Consumer Protection Act, 1986. It has also been pleaded that the disputes between the parties, was already referred to the Arbitrator as per terms of the agreement and in view of the arbitration clause also the complaint is not maintainable.
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5. The respondent No.3 (O.P.No.3) filed its written statement and averred that the respondent No.2 (O.P.No.1) is dealer of the respondent No.3 (O.P.No.3) and respondent No.3 (O.P.No.3) is manufacturer of the vehicle. The respondent No.3 (O.P.No.3) sale the vehicles manufactured by it to the respondent NO.2 (O.P.No.1) as per his demand and the respondent No.3 (O.P.No.3) is not responsible for the dealing made by him to his customers and he himself is responsible for the dealing. The respondent No.1 (complainant) has not mentioned in the complaint that for what purpose, the vehicle in question was being used by him. Such type of the vehicle is only used for the commercial purpose. The vehicle in question has been used by the respondent No.1 (complainant) for the commercial purpose. In the various citations, it has been held that any person, who purchased the goods or vehicle for commercial purposes and by using it for commercial purpose earning income, does not come in the category of the consumer, therefore, the respondent No.1 (complainant) is not a consumer.
6. Earlier, the District Forum, vide order dated 20.10.2009 passed in Complaint Case No.02/2007 dismissed the complaint on the ground that the vehicle in question was purchased for commercial purpose and therefore, consumer complaint does not lie. Thereafter, the respondent No.1 (complainant) filed appeal No.661/2009 before this Commission against the above order of the District Forum. This // 6 // Commission vide order dated 24.09.2010 allowed the appeal and set aside the impugned order and matter was remanded back to the District Forum with following direction :-
"8. Therefore, the appeal succeeds and is allowed; the impugned order is set aside and the matter is remanded back to the District Forum with a direction to provide one more opportunity to the complainant/appellant for filing documents and affidavit in support of his claim. Respondents may also be noticed and be provided an opportunity for filing written version and documents. Thereafter matter be decided afresh on merits. Parties are directed to appear before the District Forum, Korba on 25/10/2010. No order as to cost."
7. After remand of the case to the District Forum, the vide order dated 10.02.2011, the complaint of the respondent No.1 (complainant) was allowed and the appellant (O.P.No.2) and respondent No.3 (O.P.No.3) have been jointly and severally directed to provide Highwa vehicle double crown 10 wheeler to the respondent No.1 (complainant) within two months from the date of order and also to pay cost of litigation Rs.1,000/-. Thereafter the appellant (O.P.No.2) filed Appeal No.162/2011 before this Commission against the above order of the District Forum. This Commission vide order dated 28.06.2011 allowed the appeal and set aside the impugned order and the matter was remanded back to the District Forum for the reconsideration, with following directions :-
// 7 // "9. We find that necessary pleading as well as necessary evidence is lacking on the part of complainant also and important evidence on behalf of the financer Bank has been produced before us, which needs consideration in the case during trial and the complainant is required to provide an opportunity for leading evidence in rebuttal.
Considering these facts, at the place of expressing any final opinion on the merits of the case, we would like to remand the matter back to the District Forum for fresh consideration, so that the complainant can get an opportunity of amending the complaint and for filing affidavit, if necessary, so that it can be considered whether the complaint of respondent No.1 is maintainable before the District Forum or not. The documents filed before us are also required to be considered by the District Forum to see as to whether the terms and conditions of the loan agreement have been fulfilled or not or have been violated by any of the parties. Similarly respondent No.2 will also get a chance to show that the vehicle as promised was provided and the vehicle was not provided contrary to the promise.
10. Thus, the appeal is allowed, the impugned order is set aside and the case is remanded back to the District Forum for reconsideration on the questions as aforesaid. Parties are directed to appear before the District Forum on 01.08.2011. No order as to the cost of this appeal."
8. After remand of the matter the District Forum, the respondent No.1 (complainant) impleaded the Ashok Leyland Company, Bilha, Bilaspur as O.P.No. 3 in the complaint. The O.P.No.3 filed its written statements, affidavits and documents. The District Forum, after having considered the material placed before it, allowed the complaint and directed the appellant (O.P.No.2) and respondent No.2 (O.P.No.1) // 8 // to pay compensation to the respondent No.1 (complainant), as mentioned hereinabove in para 1 of this order.
9. The respondent No.1 (complainant) filed documents. Annexure 1 is photo copy of work order dated 01.01.2006 issued by Priyanka Transport to Ashok Patel, Annexure 2 is photocopy of the a document containing details dated 31.01.2006, Annexure 3 is Invoice dated 31.03.2006 issued by Shree Radhe Ashok Leyland favour of the respondent No.1 (complainant), Annexure 4 is Temporary Certificate of Registration Temporary Registration Mark, Annexure 5 is Form 22 Initial Certificate of Compliance with Pollution Standards, Safety Standards of components and Road worthiness, Annexure 6 is Form 22-A Certificate of Compliance with Pollution Standards/safety standards of components and Road worthiness, Annexure 7 is Form No.21 - Sale Certificate issued by Shree Radhe Ashok Leyland, Annexure 8 is Motor Vehicle Cover Note issued by The New India Assurance Company Limited, Annexure 9 is letter dated 16.06.2006 written by Priyanka Transport, Bilaspur to the Manager, Ashok Leyland Finance Limited, Annexure 10 is registered notice dated 03.08.2006 sent by Shri Santu Prasad Sahu, Advocate on behalf of the respondent No.1 (complainant) to The Manager, Shree Radhe Ashok Leyland Limited, Bilha, Bilapsur (C.G.). The respondent No.1 (complainant) has also filed original copy of Temporary Certificate of Registration Temporary Registration Mark, Invoice dated 31.03.2006 // 9 // issued by Shree Radhe Ashok Leyland to the respondent No.1 (complainant), Form 21 - Sale Certificate issued by Shree Radhe Ashok Leyland, Form 22 Initial Certificate of Compliance with Pollution Standards, Safety Standards of components and Road worthiness, Form 22A Certificate of Compliance with Pollution Standards / Safety Standards of Components and Road Worthiness, Policy Schedule of Policy No.450300/31/06/01/00001769 issued by The New India Assurance Company Limited, Receipt dated 30.03.2006 issued by Shree Radhe Ashok Leyland in favour of the respondent No.1 (complainant), receipt dated 29.03.2006 issued by Ashok Leyland Finance in favour of the respondent No.1 (complainant), receipt dated 29.07.2006 issued by Ashok Leyland Finance in favour of the respondent No.1 (complainant), quotation dated 23.03.2004 issued by Shree Radhe Ashok Leyland issued in favour of the respondent No.1 (complainant), photograph.
10. The appellant (O.P.No.2) filed documents. Document D/1 is Statement of Account for the Contract Number : PO000211H (PO00021H) as on 21/10/2010, letter dated 30.06.2006 sent by Ashok Leyland Finance Limited to Incharge, Police Station, Urga, Korba (C.G.), D-3 is loan agreement, D-4 is Statement of Account for the Contract Number : PO000211H (PO00021H) as on 21/10/2010, D-5 is Award dated 30.05.2011 passed by the Sole Arbitrator in A.C.P. No.13 of 2011 M/s. IndusInd Bank Ltd. & Ashok Patel and another in respect // 10 // of Loan Agreement No.POOOO211H dated 21.03.2006, D-6 is Execution Petition filed by the appellant (O.No.2) before The District Judge, District Korba (C.G.) against the respondent No.1 and another.
11. Smt. Nupur Pal, learned counsel appearing for the appellant (O.P.No.2) has argued that the impugned order passed by the District Forum is erroneous and District Forum erred in holding that the respondent No.1 (complainant) is "consumer" and the vehicle was not purchased for commercial purpose. The District Forum passed the impugned order against the appellant (O.P.No.2) without giving due weightage to the actual facts and law. The matter was referred to the Arbitrator and the Arbitrator passed award, therefore, the District Forum, has no jurisdiction to decide the case. She further argued that the respondent No.1 (complainant) did not deposit the loan amount and defaulted in making payment, therefore, giving proper notice to the respondent No.1 (complainant), the vehicle in question was repossessed by the appellant (O.P.No.2). The complainant has alleged certain deficiency with regard to delivery of single crown and double crown engine. If any deficiency was occurred, then the appellant (O.P.No.2) is not responsible for the same and only manufacturer and dealer are responsible for the same and the appellant (O.P.No.2) is only a financer. The respondent No.1 (complainant) failed to comply with his own part with regard to the contract, therefore, he cannot claim any relief from this Commission. The vehicle in question has // 11 // been rightly repossessed by the appellant (O.P. No.2) and was sold to third party. The impugned order passed by the District Forum is bad in law and is liable to be set aside.
12. Shri Ajay Rajwade, learned counsel for the respondent No.1 (complainant) has argued that the complainant filed complaint on 27.10.2007 and award was passed by the Arbitrator on 30.05.2011 i.e. before passing the award by the Arbitrator. Initially, the District Forum passed order on 20.10.2009 and held that the respondent No.1 (complainant) is not consumer. The respondent No.1 (complainant) filed Appeal No.661/2009 before this Commission against the said order and vide order dated 24.09.2010, this Commission allowed the appeal of the respondent No.1 (complainant) and remitted the case back to the District Forum with a direction to decide the matter afresh on its merits. It appears that Commission held that the respondent No.1 (complainant) is a "consumer". After remand of the case to the District Forum, the vide order dated 10.12.2011, whereby the complaint of the respondent No.1 (complainant) was allowed and the appellant (O.P.No.2) and respondent No.3 (O.P.No.3) have been jointly and severally directed to provide Highwa vehicle double crown 10 wheeler to the respondent No.1 (complainant) within two months from the date of order and also to pay cost of litigation Rs.1,000/-. Thereafter the appellant (O.P.No.1) filed Appeal No.162/2011 before this Commission against the above order of the District Forum. This // 12 // Commission vide order dated 28.06.2011 allowed the appeal and set aside the impugned order and the matter was remanded back to the District Forum for deciding the case afresh. The appellant (O.P.No.2) never pleaded that the matter was referred to the Arbitrator before filing the complaint. Shri Ajay Rajwade further argued that the vehicle in question was purchased by the complainant on 14.06.2006 and the same was repossessed by the appellant (O.P.No.2) on 30.06.2006 i.e. within 15 days of its purchase. Apparently it appears that the vehicle was repossessed by the appellant (O.P. No.2) with malafide intention and without affording any opportunity to the respondent No.1 (complainant). He further argued that the vehicle was sold by the appellant (O.P.No.2) to any third party without given any pre-intimation to the respondent No.1 (complainant), therefore, the impugned order passed by the District Forum is reasonable, just and proper and does not call for any interference by this Commission and appeal is liable to be dismissed.
13. Shri Sunil Otwani, learned counsel appearing for the respondent No.2 (O.P.No.1) has supported the arguments advanced by the learned counsel for the appellant (O.P.No.2).
14. Inspite of service of notice by the registered post, none appeared for the respondent No.3 (O.P.No.3) before us on 28.11.2015, when the case was fixed for final hearing.
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15. We have heard learned counsel for the parties and have also perused the record of the District Forum.
16. Firstly, we shall examine whether the respondent No.1 (complainant) is consumer ?
17. Learned District Forum vide order dated 20.10.2009 dismissed the complaint of the respondent No.1 (complainant) holding that the respondent No.1 (complainant) is not consumer. The above order was challenged by the respondent No.1 (complainant) before this Commission by filing Appeal No.661/2009. This Commission vide order dated 24.09.2010 allowed the appeal. In para 7, this Commission observed that "We are of the view that the District Forum has unnecessarily dismissed the complaint without providing any further chance to the complainant to substantiate his contentions." This Commission remanded the case back to the District Forum for deciding the case afresh on merits.
18. It appears that prima facie, this Commission held that the respondent No.1 (complainant) is "consumer" and directed the District Forum to decide the case on merits. It shows that this Commission has already held that the respondent No.1 (complainant) No.1 is "consumer".
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19. Now we shall examine whether due to award passed by the Arbitrator, the jurisdiction of the District Forum is ousted to decide the case ?
20. The respondent No.1 (complainant) filed consumer complaint before the District Forum on 27.01.2007 and the appellant (O.P.No.2) filed its written statement along with affidavit and documents before the District Forum on 22.11.2010. In para 6 of the written statement, the appellant (O.P.No.2) simply pleaded that according to the agreement executed between the parties it has been agreed that in case of any dispute between the parties, the same shall be resolved through Arbitrator under the provisions of the Arbitration and Conciliation Act, 1996 and the above clause is binding to both the parties. The appellant (O.P.No.2) did not plead that the matter was referred to the Arbitrator before filing the complaint.
21. The appellant (O.P.No.2) filed document D-5, which is copy of Award, which was passed by the Arbitrator on 30.05.2011. The arbitration petition No.13 of 2011 was registered. From bare perusal of the above document, it appears that the matter was referred to the Arbitrator in the year 20011 i.e. after passing of the first order by the District Forum. It appears that the respondent No.1 (complainant) filed the complaint before the District Forum, prior to the date when // 15 // the matter was referred to the Arbitrator, therefore, the District Forum, has jurisdiction to decide the complaint.
22. Now we shall examine whether the appellant (O.P.No.2) has illegally repossessed the vehicle in question ?
23. From the written statement filed by the appellant (O.P. No.2), it is clear that the appellant (O.P.No.2) has provided single crown Highwa vehicle instead of 10 wheeler double crown Highwa vehicle to the respondent No.1 (complainant), whereas the financed amount was sanctioned for double crown Highwa vehicle and the amount was provided to the appellant (O.P.No.1). The appellant (O.P.No.2) filed document D-1 and D-4, which are Statement of Account in respect of the financed amount for the Contract Number : PO000211H (PO000211H) as on 21.10.2010, in which particulars have been given in respect of instalments paid by the respondent No.1 (complainant) to the appellant (O.P.No.2) regarding loan obtained by the respondent No.1 (complainant). According to the respondent No.1 (complainant), single crown highway vehicle was provided by the respondent No.2 (O.P.No.1) to him on 14.06.2006 and the vehicle was got insured on 15.06.2006. The policy was commenced from 15.06.2006. The respondent No.1 (complainant) filed insurance policy, which was issued by The New India Assurance Company Limited. According to // 16 // the insurance policy, the vehicle was insured for the period from 15.06.2006 to 14.06.2007.
24. The respondent No.1 (complainant) is unemployed and he obtained loan from the appellant (O.P.No.2) for purchasing double crown highwa vehicle for livelihood of himself and family members. The respondent No.2 (O.P.No.1) received amount for providing double crown highway vehicle to the respondent No.1 (complainant) on 31.03.2006, but he did not provide the same to the respondent No.1 (complainant) and the vehicle which was provided on 14.06.2006 was single crown highway vehicle and the same was again repossessed by the appellant (O.P.No.2) on 30.06.2006 within 15 days of it''s purchase. Before taking repossession of the vehicle in question, the appellant (O.P.No.2) did not give any notice or intimation regarding repossession of the vehicle. Single crown highway vehicle was provided by the respondent No.2 (O.P. No.1) to the respondent No.1 (complainant). The respondent No.2 (O.P.No.1) filed his written statement in which above contention was admitted. The appellant (O.P.No.2) also admitted that vehicle in question was repossessed by it.
25. On the basis of above discussions, we find that the respondent No.2 (O.P.No.1) committed deficiency in service by not providing double crown highway vehicle to the respondent No.1 (complainant) // 17 // and it is also established that the respondent No.2 (O.P.No.1) committed unfair trade practice by not providing appropriate vehicle to the respondent No.1 (complainant).
26. Therefore, the finding recorded by the learned District Forum, is reasonable, just and proper and does not suffer from any infirmity or illegality. The learned District Forum has rightly exonerated the respondent No.3 (O.P.No.3) from liability to pay compensation to the respondent No.1 (complainant). The finding recorded by the District Forum, does not call for any interference by this Commission.
27. Hence, the appeal filed by the appellant (O.P.No.2) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (Narendra Gupta)
President Member Member
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