National Consumer Disputes Redressal
Goutam Kumar Ghosh vs Tata Motors Finance Ltd. & 4 Ors. on 2 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 996 OF 2021 (Against the Order dated 16/12/2021 in Complaint No. 259/2020 of the State Commission West Bengal) 1. GOUTAM KUMAR GHOSH VILL CHANDRAKONA DAKSHIN DAKHIN BAZAR,CHANDRAKONA TOWN, PASCHIM MIDNAPUR.PIN 721201 ...........Appellant(s) Versus 1. TATA MOTORS FINANCE LTD. & 4 ORS. 41 CHOWRINGHEE ROAD KANAK BUILDING, KOLKATA 70007 2. PAROMITA CHAKRABORTY COLLECTION MANAGER, TATA MOTORS FINANCE LTD.41, CHOWRINGHEE ROAD,KANAK BUILDING, KOLKATA-700007 3. TATA MOTORS FINANCE LTD. 1ST FLOOR, BESIDE INDA-OT ROAD,JL-232, KARADDUG REAL ESTATE, KHARAGPUR, DIST.PASCHIM MIDNAPORE, WEST BENGAL-721101 4. REGISTERING AUTHORITY OFFFICE OF THE DISTRICT MAGISTRATE, MOTOR VEHICLES DEPARTMENT PASCHIM MIDNAPORE, -721101 5. MOTOR VEHICLES DEPARTMENT GOVT. OF WEST BENGAL, PUBLIC VEHICLES DEPRTMENT 38, BELTALA ROAD, WEST BENGAL,700020 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE DR. SADHNA SHANKER,MEMBER FOR THE APPELLANT : MS. ANUBHA AGRAWAL, AMICUS CURIAE (THROUGH VIDEO CONFERENCING) FOR THE RESPONDENT : FOR THE RESPONDENT NO. 1 TO 3 : MR. ADITYA LAROYIA, ADVOCATE WITH MS. ANANYA BHARDWAJ, ADVOCATE FOR THE RESPONDENTS NO. 4 & 5: EX PARTE VIDE ORDER DATED 11.01.2024 Dated : 02 September 2024 ORDER This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") assailing the Order dated 16.12.2021 passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter to be referred to as 'State Commission') in I.A. No. 21 of 2021 in complaint no. 259 of 2020 whereby the I.A. No. 21 of 2021 filed by opposite parties no. 1 to 3 was allowed and the complaint was dismissed.
This Commission vide its Order dated 11.01.2024 has proceeded ex parte against respondents no. 4 and 5.
The brief facts of the case as narrated by the complainant are that the complainant purchased a truck by obtaining a loan amount of Rs. 20 lakh from the respondents no. 1 to 3. It is alleged that the respondents no. 1 to 3 by practicing unfair trade practice has added a sum of Rs. 2,07,200/- as premium for insurance of loan amount and added the same to the loan amount and accordingly increased the total loan amount. It is further alleged that insurance is payable every year and collecting the said amount at the time of granting the loan and calculating interest thereupon is a deficiency in service as well as unfair trade practice on the part of the respondents no. 1 and 3. It is stated that at the time of sanction of loan, against the loan amount of Rs.20 lakh, an EMI of Rs. 24,070/- would be payable for 58 months. It is alleged that on 10.11.2014, the truck met with an accident and there was severe damage to the engine as well as body of the truck. The insurance company was informed. The insurance company appointed a surveyor, who recommended replacement of the truck as the damage was severe. It is stated that the complainant had paid installment till 1st September 2017. Thereafter, the complainant received a summon from the Metropolitan Court at Kolkata and the complainant was made accused of a cheque default of Rs.13,81,806/- and the case was registered in April, 2017 by issuing a notice under Section 138 of the N.I. Act. It is stated that the said cheque was issued by the complainant at the time of entering into agreement and the said cheque has already been mentioned in the letter dated 27.06.2014. It is further alleged that on 28.12.2017, the complainant made payment of the loan amount. Alleging deficiency in service in not providing a copy of the loan agreement as also alleging unfair trade practice in manipulating the cheque amount by making it a figure of Rs. 13,81,806/- and failing a complaint by the respondents under section 138 of the N.I. Act, the complainant filed a complaint before the State Commission with the following prayer:
"1) The OP 1, 2 & 3 be directed to hand over possession of the subject truck having possession of the subject truck having registration no. WB33C 2697 in working and satisfactory condition.
ii) The opposite parties no. 1, 2 and 3 be directed to furnish statement of account and also be directed to produce the original cheque no. 490992 issued for Rs. 1/- drawn on SBI Chandrakona Town for determination by handwriting expert as to whether Rs. 13,81,806 was manipulated or not.
iii) The opposite parties no. 1, 2 & 3 be directed to pay compensation of Rs. 20,00,000 for mental agony and physical pain suffered by the complainant.
iv) The opposite parties 1, 2 & 3 be directed to pay the price of a new truck in case the OP 1, 2 & 3 is not able to hand over the possession of the truck bearing registration no. WB33C 2697 which is estimated at Rs. 25,00,000/- at present being the loan amount and the amount paid by the complainant.
v) The opposite parties 4 & 5 be directed by an ad interim order of not to cause any transfer or new registration of the truck no. WB33C-2697 registered in the name of the complainant till the disposal of the subject complaint case.
vi) The opposite parties no. 1, 2 & 3 be directed to pay litigation cost of Rs. 50,000/-
vii) Any further order or orders as this Hon'ble State Commission may deem fit and proper."
4. The respondents no. 1 to 3 have contested the complaint by filing written statement stating that the complaint is not maintainable and the exercise of rights under loan-cum-hypothecation cum Guarantee Agreement cannot be construed as unfair trade practice. It is also stated that the complainant is not a consumer as there is no relationship between the complainant and the respondents no. 1 to 3. It is further stated that an arbitral award was passed on 11.12.2017 by the Arbitrator. The said award had not been challenged, therefore, it has attained finality but the complainant did not pay the award amount. It is also stated that the complaint is barred by principles of res judicata and, hence, the complaint is liable to be dismissed.
5. The respondents no. 1 to 3 have filed an application for dismissal of the complaint on the ground of non-maintainability.
6. The State Commission, vide its order dated 16.12.2019 allowed the application of the respondents no. 1 to 3 and dismissed the complaint.
7. Aggrieved by the Order dated 16.12.2019 of the State Commission, the complainant has filed the present appeal before this Commission.
8. The main issue for our consideration is whether once the arbitration award is passed, a consumer complaint can be filed on the same issue and facts.
9. Learned counsel for the complainant has argued that it is a settled proposition of law that the proceedings before the consumer fora are in addition to and not in derogation of any other law, for the time being in force. He relied on section 100 of the Consumer Protection Act, 2019, which is pari materia to Section 3 of the Consumer Protection Act, 1986. He further argued that even the decisions relied upon by the respondents no. 1 to 3 before the State Commission, in fact, support his contention and are not against him. He argued that the matter is to be seen on merits and cannot be dismissed only because an arbitration award is in existence in the matter.
10. Learned counsel for the respondents no. 1 and 3 has argued that the State Commission has passed a well-reasoned order. He further argued that the arbitration award was served on the complainant on 03.01.2008 but the complainant had neither complied with the arbitration award nor challenged the same under section 34 of the Arbitration and Conciliation Act, 1996. Thus, the award had attained finality. He further argued that once the award had attained finality, the only recourse, that had been available to the complainant, was the challenge to the award and he could not file a consumer complaint in the matter after the award that had become final. In support of his contention, he placed reliance on the decision rendered in the case of Mir Alam vs. Magma Finance Corporation, revision petition no. 1892 of 2019, decided on 18.08.2021.
11. We have perused the record and considered the rival submissions made by learned counsel for both the parties. It is seen that the arbitration award was passed on 11.11.2017 and it is not in dispute that the complainant received the same. It is also not in dispute that the respondents no. 1 to 3 had financed a truck for Rs. 20 lakh at the rate of 12.9%. When the payments were stopped by the complainant, the respondents no. 1 to 3 initiated arbitral proceedings by invoking the arbitration clause that existed in the loan-hypothecation agreement between the parties. The complainant did not participate or object to the arbitration proceedings. The arbitrator passed an order on 11.11.2017. The respondents no. 1 to 3 has already repossessed and sold the vehicle in question in pursuance of the award. The complainant filed a complaint on 26.06.2020 before the State Commission.
12. The arbitration award is final under Section 35 of the Arbitration and Conciliation Act, 1996. It cannot be the case that this Commission sits and reviews the award given by a competent arbitrator under the Arbitration and Conciliation Act, 1996. The correct course of action for the complainant would have been the action under Arbitration and Conciliation Act, 1996 to challenge the award. Reliance is placed on the order of Mir Alam vs. Magma Finance Corporation (supra) wherein this Commission has held as under:
"The authorities under Consumer Protection Act, 1986 do not exercise supervisor or appellate powers over the Arbitrator's award. The complaint before the District Consumer Forum was not maintainable. The remedy of the complainant was to file an application for setting aside ex parte Arbitrator's award under Section 34 of the Arbitration and Conciliation Act, 1996 or to file an appeal against it. The order of the State Commission does not suffer from any illegality. The revision has no merit. The Supreme Court in National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr., (supra), (paragraph 66) has held that if the grower opts for remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act. This judgment has been followed by this Commission in the case relied upon by the Counsel for the respondent."
13. In view of the above, we do not find any reason to interfere with the impugned order dated 16.12.2021 passed by the State Commission. Therefore, the appeal, being without merit, is dismissed.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ............................................. DR. SADHNA SHANKER MEMBER