State Consumer Disputes Redressal Commission
Santosh Kumar Sidar vs Mahindra & Mahindra Finance Service Ltd on 1 September, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/649
Instituted on : 23.12.2016
Santosh Kumar Sidar, S/o Late Shri Gangaram Sidar,
Age 38 Years, R/o : Plot No.23, Ashray Parishar,
Sirgitti, Bilaspur,
Tahsil and District Bilaspur (C.G.) ... Appellant (Complainant)
Vs.
Mahindra and Mahindra Finance Service Ltd.,
Through : Authorized Officer,
Second Floor, Super Market, Agrasen Chowk,
Bilaspur (C.G.) ... Respondent (O.P.)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri B. Mazumdar, Advocate for the appellant (complainant).
Shri M.L. Yadav, Advocate for the respondent (O.P.).
ORDER
DATED : 01/09/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 14.09.2016, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No.CC/2012/84. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated, the facts of the case are that on 24/26.10.2006, the complainant, for earning his livelihood by self employment purchased Bolero, X.L./A.C. bearing registration No.C.G.10.-F-2488 by paying a sum of Rs.1,51,000/- towards margin money and he obtained loan for // 2 // the remaining amount of Rs.3,95,000/- under Hire Purchase Agreement. A Hire Purchase Agreement has been executed between the complainant and O.P. and as per terms and condition of the executed Hire Purchase Agreement, the complainant was to pay the loan amount in 35 monthly installments and the first installment was of Rs.14,880/- and the 35 remaining installments fixed was for Rs.13,550/- per month. According to the terms and conditions of the agreement, the complainant was required to deposit the monthly installments in cash. The O.P. demanded signed blank cheques from the complainant for security of the loan amount, then the complainant provided two signed blank cheques to the O.P.. As per terms and conditions of the agreement, the complainant deposited first installment of Rs.14,880/- on 24/26.10.2006. On 15.12.2008, the O.P. gave intimation to the complainant to deposit the outstanding amount Rs.81,362/-. On 23.01.2009, the complainant paid a sum of Rs.65,000/-. Till 15.12.2008 the amount of 25 installments and one installment is Rs.3,53,630/- and the complainant had paid a sum of Rs.3,66,260/- till 23.01.2009 and a sum of Rs.12,630/- was paid in excess to the appellant (O.P.) . The complainant demanded statement of account from the O.P., but the O.P. did not provide any statement of account to the complainant till date. Due to undue interference of the O.P., the complainant could not ply the vehicle in question in road regularly and on account of financial hardship and unavoidable circumstances, he could not pay some installments in time, for which he paid AFC (penal interest). Due to // 3 // accident occurred on 10.03.2010 at Sakti (Janjgir - Champa), the vehicle in question, was brought to Delhi Car Garage for repairing and the vehicle was standing there. On 25.03.2010, the agent of the O.P. without giving any intimation and notice to the complainant, forcibly took possession of the vehicle in question with the help of crane. The complainant contacted the O.P. and sought information regarding the outstanding amount and requested to permit him to deposit the outstanding amount and to return the vehicle in question, but the O.P. did not provide the statement of account and also did not return the vehicle in question. Thus, the complainant suffered total loss of Rs.8,87,260 (Rs.1,51,000/- margin money, the amount of Rs.3,66,260/- paid by him in installments, the insured declared value of vehicle Rs.3,70,000/-) which was caused to him due to forcible repossession of the vehicle by the O.P. which comes within purview of unfair trade practice and the O.P. committed deficiency in service.
3. The O.P. filed written statement before the District Forum and averred that the complainant obtained loan of Rs.3,95,000/- and Rs.80,580/- as loan charges i.e. total Rs.4,75580/- from the O.P. and he was required to pay a sum of Rs.13,550/- per month. Hire Purchase Agreement was executed between the complainant and O.P. The complainant was required to pay the installments in every months as per terms and conditions of Hire Purchase Agreement but he was regularly committing default. The O.P. sent notice to the complainant for paying the installment in time, but even then the complainant did // 4 // not pay the installments in time and thus acted against the terms and conditions of the agreement. The complainant was using the vehicle for commercial purpose. The vehicle in question was being used by the complainant as Taxi and the complainant was going outside of the city to escape from the liability of paying the loan amount. The complainant) was using the vehicle in question regularly and transporting the passengers to one place to another place, so that the O.P. (Finance Company), could not know regarding the act of the complainant and to cause financial loss to the O.P., the complainant was trying to sale the vehicle in question in another city, but he could not succeed in doing so, because in the R.C. Book of the vehicle in question there is entry regarding hypothecation with the O.P. The complainant was not regularly paying the installments, therefore, the O.P. sent notice to the complainant to pay the loan amount and also informed that if he is making default then the vehicle should be repossessed by the O.P. then the complainant himself told the O.P. to take the vehicle because he could not pay the loan amount. The O.P. did not commit illegal act or professional misconduct with the complainant . The O.P. also did not commit any deficiency in service. As per terms and conditions of the agreement, the appellant (O.P. repossessed the vehicle. The complaint is liable to be dismissed.
4. The complainant has filed documents. Document Annexure P-1 is acceptance letter , Annexure P-2 is Certificate of Registration of vehicle bearing registration No.C.G.10-F-2488, Annexure P-3 is Tax // 5 // Invoice dated 26.10.2006 issued by Auto Centre, Annexure P-4 is Sale Certificate dated 26.10.2006 issued by Auto Centre, Annexure P-5 is Form No.22 Certificate issued by Mahindra & Mahindra, Annexure P-6 is receipt issued by Mahindra and Mahindra, Annexure P-7 is First Information Report (under Section 154 Cr. P.C.), Annexure P-8 is Vehicle Inventory Report, Annexure P-9 is Motor Vehicle Insurance Cover Note, Annexure P-10 is details regarding the amount deposited by Shri Santosh Kumar, complainant with Mahindra Finance, Annexure P-11 to P-31 are Receipt / Cash Receipts issued by Mahindra & Mahindra Financial Services Limited on various dates.
5. The O.P. filed documents. The documents are copy of the complaint earlier filed by the complainant before the District Forum, affidavit of Santosh Kumar Sidar, the complainant, application dated 16.04.2012 for withdrawal of the complaint, consent letter, interim order dated 20.11.2009 passed by the Arbitrator under Section 17 of The Arbitration & Conciliation Act, 1996, Sale Order dated 22.04.2010 issued by Arbitrator and Statement of Account dated 02.04.2012, registered notice dated 20.07.2009 sent by Shri B. Gopa Kumar, Advocate to the Santosh Singh Sidar and Manish Singh Thakur.
6. Earlier vide order dated 08.10.2014 the District Forum allowed the complaint of the complainant and directed that :-
(a) The O.P. will return the vehicle in question to the complainant within 30 days from the date of order, in the same // 6 // condition, in which the O.P. repossessed the vehicle in question, on 25.03.2010
(b) If the O.P. is not in a position to return the vehicle in question to the complainant, then the O.P. will pay a sum of Rs.3,70,000/-, which is Insured Declared Value of the vehicle, otherwise after a period of one month, on the said amount interest @ 9% p.a. would be payable till realistion.
(c) The O.P. will pay a sum of Rs.50,000/- towards compensation for mental agony and Rs.3,000/- as cost of litigation to the complainant..
7. The O.P. filed appeal against the order dated 08.10.2014 passed by the District Forum, which was registered as Appeal No. FA/2014/753. Vide order dated 07.08.2015, this Commission remanded back the matter to the District Forum. The relevant para of the said order reads thus :-
"14. Therefore, the appeal filed by the appellant (O.P.) (Finance Company), is allowed subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand Only) to the respondent (complainant) and the impugned order dated 08.10.2014, is set aside. The matter is remanded back to the District Forum, with a direction that after providing opportunity to both the parties for filing documents and after hearing both the parties, to decide the matter afresh on its merits. It is also made clear that only after deposit of the amount of cost by the appellant (O.P.) before the District Forum, the District Forum will take into consideration the documents, which have been filed by the appellant (O.P.) as additional evidence before us, otherwise the District Forum, // 7 // will decide the matter without taking into consideration these documents. Office of this Commission is directed to send the record of the complaint to the District Forum immediately, along with the copy of the documents filed by the appellant (O.P.) before us at the appellate stage as additional evidence. Parties are directed to appear before the learned District Forum on 15.09.2015. No order as to the cost of this appeal.
8. After remand of the matter, learned District Forum, after providing opportunity to both the parties for filing documents, after hearing both the parties, and after having considered the material placed before it by the parties, vide order dated 14.09.2016 has dismissed the complaint of the complainant holding that the O.P. did not commit any deficiency in service.
9. Shri B. Mazumdar, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) purchased vehicle Bolero, X.L./A.C. bearing registration No.C.G.10-F-2488 with the financial help of the respondent (O.P.) The appellant (complainant) deposited Rs.1,51,000/- towards margin money and for remaining amount of Rs.3,95,000/- loan was sanctioned by the respondent (O.P.) under Hire Purchase Agreement. A Hire Purchase Agreement was executed between the parties. According to the Hire Purchase Agreement, the appellant (complainant) was required to pay the loan amount in 35 monthly installments and advance installment of Rs.14,880/- was paid by the appellant (complainant). The remaining amount was to be paid by the appellant (complainant) in 35 equal // 8 // installments of Rs.13,550/-. The appellant (complainant) deposited the installments regularly and he deposited Rs.3,66,260/- till 23.01.2009 with the respondent (O.P.) and the appellant (complainant) paid a sum of Rs.12,630/- to the respondent (O.P.) in excess. The appellant (complainant) demanded statement of loan account from the respondent (O.P.), but the respondent (O.P.) did not provide the same to the appellant (complainant) and the respondent (O.P.) unnecessarily pressurized the appellant (complainant) for deposited the amount and threatened him to take possession of the vehicle, therefore, the vehicle in question could not be plied by the complainant in road. The appellant (complainant) suffered loss. On 10.03.2010, the vehicle met with an accident at Sakti and the vehicle was taken to Delhi Car Garage, Bilaspur for repairing work and the vehicle was parked in the said garage. On 25.03.2010 without giving prior intimation to the appellant (complainant), the vehicle was forcibly taken by the employees of the respondent (O.P.) and the respondent (O.P.) sold the vehicle without following legal procedure, which comes within deficiency in service. The learned District Forum did not consider the above aspect and erroneously dismissed the complaint. The impugned order is liable to be set aside. The appeal may be allowed and relief as prayed in the compliant be granted. He placed reliance on HDFC Bank Ltd. Vs. Balwinder Singh, III (2009) CPJ 40 (NC).
10. Shri M.L. Yadav, learned counsel for the respondent (O.P) has argued that initially the complaint was allowed by the District Forum // 9 // vide order dated 08.10.2014 and the respondent (O.P.) filed appeal against the order of the District Forum before this Commission. Vide order dated 07.08.2015, the appeal filed by the respondent (complainant) was allowed and the matter was remanded back to the District Forum with directions as mentioned in para 14 of the said order. After considering the documents filed by the respondent (O.P.) as addition evidence, learned District Forum has rightly dismissed the complaint of the appellant (complainant). Shri M.L. Yadav, has further argued that the matter was referred to the Arbitrator prior to filing of the complaint and the Arbitrator has passed Interim Order against the appellant (complainant), therefore, the complaint is not maintainable. Learned District Forum, has rightly dismissed the complaint. The appellant (complainant) himself surrendered the vehicle in question to the respondent (O.P.). The respondent (O.P.) sold the vehicle as per directions given by the Arbitrator, therefore, the appeal filed by the appellant (complainant) is not maintainable and the appeal is liable to be dismissed.
11. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
12. Now we shall examine if the matter was referred to the Arbitrator by the respondent (O.P.) and Arbitrator had passed the // 10 // Interim Orders, even then learned District Forum had jurisdiction to decide the matter ?
13. In Chandresh Kumar Vs. Kotak Mahendra Bank Ltd. I (2017) CPJ 121 (NC), Hon'ble National Commission has observed thus :-
"6. ...... In our opinion, the complainant / petitioner having invoked the jurisdiction of the Civil Court and having not challenged the order of the said Court referring the parties to arbitration, he could not have filed a consumer complaint, challenging the legality of the repossession of the vehicle by the bank. Though, the remedy provided to a consumer under the provisions of the Consumer Protect Act, 1986 is an additional remedy, the complainant / petitioner having himself chosen to approach the Civil Court instead of filing a consumer complaint in the first instance, he could not have filed a consumer complaint after the Civil Court had referred the parties to arbitration in accordance with the arbitration clause contained in the agreement between them. The consumer complaint, therefore, was clearly not maintainable, in the aforesaid facts and circumstances."
14. In Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Another, 2017 (2) CPR 277 (NC), Hon'ble National Commission has observed thus :-
"10. ...................... Section 3 of the Consumer Protect Act, 1986 states that the provisions of Consumer Protection Act, 1986 shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, it is clear that the provisions of the Consumer Protection Act, 1986 cannot be used in derogation of The Arbitration and Reconciliation Act, 1996. Remedy under Consumer Protection Act, 1986 is an additional remedy if the main remedy under the // 11 // concerned Act has not been taken. In the present case, it was made known to the petitioner / complainant that the remedy under the Arbitration and Reconciliation Act, 1996 was already taken up by OP-1 as per the provisions of the Agreement, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as an alternative remedy................."
15. In T. Srinivas & Anr. Vs. Srija Constructions, I (2016) CPJ 552 (NC), Hon'ble National Commission has observed thus :-
"10. .... This Commission in Beverly Park Maintenance Services Ltd. v. Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC) = Revision Petition No.2064 of 2012 decided on 13.3.2014 has observed :
"7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned Counsel for the respondent submitted that Section 3, Consumer Protection Act enables complainant to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned Counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad v. The New India Assurance Company Limited held that when a case is pending in a Court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action.
8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have // 12 // been initiated before the State Commission and the State Commission committed error in holding that both the proceedings may go simultaneously . The words 'in addition' appearing in Section 3, C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other Forum."
16. In Magma Fincorp Limited Vs. Gulzar Ali, II (2016) CPJ 231 (NC), Hon'ble National Commission has observed thus :-
"12. It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could not be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable."
17. In Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd. II (2014) CPJ 109 (NC), Hon'ble National Commission, has observed that "Once respondent participated in proceedings before arbitrator for same relief, proceedings for similar relief could not have been initiated before State Commission."
18. In the instant case the respondent (O.P.) has filed copy of Interim Order dated 20.11.2009 passed by Swarnalatha, Arbitrator and also copy of Sale Order dated 22.04.2010.
// 13 //
19. The respondent (O.P.) filed the copy of the Interim Order Passed by the Arbitrator in NPA-ARB (M&M) SL. No.12446/2009, on 20.11.2009. The agreement was executed between the parties on 30.10.2016. In the said order, it is mentioned thus :-
"IT IS THEREFORE ORDERED AS FOLLOWS :-
1. That the Claimant and/or its men, agents or any other person claiming under it, shall repossess the vehicle no.CG10F2488 (Vehicle make MAHINDRA BOLERO SLX 2 WD) bearing Engine No.GA64J18223 and Chassis No.MA1WF2GAK62J44276, which is the subject matter of the Loan Agreement No.525133 dated 30-Oct-
06.
2. After repossessing the vehicle, the Claimant is directed to keep the said vehicle in its safe custody and also value the vehicle through a competent valuer and submit the Valuation Report to this Tribunal.
3. In the process of repossessing the vehicle, the Claimant, if deemed by it to be necessary, shall seek assistance of the Competent Police Authorities, as per the guidelines of the Reserved Bank of India."
20. In the instant case on 22.04.2010, the Arbitrator has allowed the Interim Application of the claimant and Sale Order was given by the Arbitrator, in which it is mentioned thus :-
4. "The Claimant has prayed for seizure and sale of the hypothecated vehicle. Pursuant to the earlier order of this Tribunal, the Claimant has seized the said vehicle bearing No.CG10F2488 (Vehicle make // 14 // MAHINDRA BOLERO SLX 2 WD) bearing Engine No.GA64J18223 and Chassis No. MA1WF2GAK62J44276, and has also filed valuation report as directed. The vehicle is now directed to be sold by way of Auction / Tender and the Claimant is directed to report the sale proceedings to the Arbitral Tribunal within 15 days of sale of vehicle."
21. The sale order was passed by the Arbitrator on 22.04.2010. It appears that the matter was referred to the Arbitrator in the year 2009 and thereafter the sale order was passed on 22.04.2010, whereas the instant complaint was filed by the appellant (complainant) on 23.05.2012. It appears that the complaint was filed after matter was referred to the Arbitrator. It appears that the matter was already referred to the Arbitrator prior to filing of the consumer complaint, therefore, the District Forum, has no jurisdiction to decide the matter.
22. In the instant case both the parties have not filed Hire Purchase Agreement executed between them. The appellant (complainant) has filed document Annexure P-1 which is acceptance letter of the respondent (O.P.) by which the respondent (O.P.) accepted the proposal given by the appellant (complainant).
23. The respondent (O.P.) has filed consent letter dated 25.03.2010, in which it is mentioned thus :-
// 15 // "eSa fuykacj flag firk Lo- xaxkjke fuoklh Q.No. -712/3, old loko colony, Bilaspur dk g¡w eSaus vius HkkbZ larks"k flag flnkj ds uke ij vuqca/k Øaekd 525133 ds rgr Qk;usal djk;h gS ftlesa eS lg[kjhnnkj g¡w ,oa mDr okgu dh fdLrksa dh Hkqxrku djus dh tokcnkjh esjh Loa; dh Fkh A eSa mDr okgu ds fdLrksa dk Hkqxrku le; ij ugha dj ik jgk g¡w vr% vkt fnukad 25@03@2010 dks xkM+h ,DlhMsaV gkyr esa daiuh ds lqiqZn dj jgk g¡w ftlesa eq>s ,oa esjs ifjokj dks fdlh Hkh izdkj dh vkifRr ugha gS ,oa eSa iw.kZ :i ls lger g¡w A mDr okgu dks daiuh cspdj viuh gkfu dh iwfrZ dj ldrh gS A ftlesa eq>s dksbZ vkifRr ugha gS cspus ds ckn Hkh ;fn dksbZ cdk;k jkf'k cprh gS rks mls eSa nsus ds fy;s rS;kj g¡w A fnukad%&25-03-2010 LFkku%& fnYyh dkj xSjst O;kikj fogkj fcykliqj "
24 The respondent (O.P.) has also filed consent letter dated 25.03.2010, the complainant himself handed over the vehicle in question to the respondent (O.P.). The vehicle was sold by the respondent (O.P.) as per the directions given by the Arbitrator, therefore, it cannot be held that the respondent (O.P.) took the possession of the vehicle forcibly without following due course of law. On the contrary, it is established that the matter was referred to the Arbitrator and the Arbitrator passed Interim Order. On the basis of Interim Order passed by the Arbitrator, the vehicle was sold by the respondent (O.P.). The judgment relied by the appellant (complainant) is not applicable in the instant case and will not helpful to the appellant (complainant).
// 16 //
25. Therefore, the impugned order dated 14.09.2016, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
26. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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