State Consumer Disputes Redressal Commission
Smt. Sevati Devi vs Hinduja Leyland Finance Ltd. & Ors. on 26 May, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 116/2019
Date of Presentation : 03.11.2017
Order Reserved on : 06.11.2019
Date of Order : 26.05.2020
......
Sevati Devi wife of Shri Gandhi Ram resident of Village Samtyari
P.O. Kandhar Tehsil Arki District Solan (H.P).
...... Appellant/Complainant
Versus
1. Hinduja Leyland Finance Limited 167/169 3rd Floor
Annasalai SADI APT Chennai-600 015.
2. Hinduja Leyland Finance Limited through Branch Manager
Shri Ravinder Thakur C/o Friends Daily Needs Near Hotel
Quality Inn Hin Dev Ghora Chowki Shimla Himachal
Pradesh.
3. Hinduja Leyland Finance Limited 6 Roura Sector-3 near PG
College NH-21 Mandi Road Bilaspur District Bilaspur
through Incharge/Manager Shri Prem Sharma.
......Respondents/opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Virender Thakur Advocate.
For Respondents : Mr. Ashwani Kaundal Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 17.05.2017 passed by Learned District Consumer Forum/ 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 Commission in consumer complaint No.154/2013 titled Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. Brief facts of consumer complaint:
2. Complainant Smt. Sevati Devi filed consumer complaint under Consumer Protection Act pleaded therein that complainant purchased truck bearing No.HP-11-5479 which was financed by opposite parties to the tune of Rs.1136960/-(Eleven lac thirty six thousand nine hundred sixty). It is pleaded that complainant has paid installments regularly to the opposite parties. It is pleaded that complainant has paid an amount to the tune of Rs.325000/-
(Three lac twenty five thousand) upto 21.09.2011. It is further pleaded that on 03.12.2013 opposite parties with the help of criminal elements took forcible possession of vehicle in question at place Shalughat near Bagga by giving beatings to driver and conductor. It is further pleaded that opposite parties committed deficiency in service and unfair trade practice.
3. Complainant sought relief to the effect that opposite parties be directed to return vehicle in question to complainant and to pay compensation to complainant to the tune of Rs.200000/-(Two lac) for mental agony and harassment. In addition complainant sought relief for 2 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 payment of Rs.100000/-(One lac) for retaining vehicle in question w.e.f. November 2011. Prayer for acceptance of consumer complaint sought as mentioned in relief clause.
4. Per contra version filed on behalf of opposite parties pleaded therein that present matter is relating to settlement of accounts inter se parties and complicated questions of facts and laws are involved in the present matter and complainant be relegated to civil court for adjudication of dispute. It is pleaded that complainant has no cause of action against opposite parties. It is further pleaded that loan was sanctioned in favour of complainant by opposite party No.3 from Bilaspur Branch and learned DCF/DCC has no jurisdiction to entertain and try present consumer complaint. It is pleaded that Award already stood passed under Arbitration & Conciliation Act 1996 against complainant and present consumer complaint is not maintainable.
5. It is further pleaded that complainant did not pay loan amount and committed default in payment of loan amount. It is pleaded that vehicle in question already sold in open market in consideration amount of Rs.500000/-(Five lac). It is pleaded that sale amount of vehicle in question already stood adjusted in loan account of complainant. It is further pleaded that after adjusting loan amount from sale amount of vehicle in question still a sum of Rs.391235/- 3
Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 (Three lac ninety one thousand two hundred thirty five) is due against complainant to opposite parties. It is pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
6. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether it is expedient in the ends of justice and on the principles of natural justice to decide consumer complaint under Consumer Protection Act if prior Arbitration Award already stood passed relating to vehicle in question inter se parties by Arbitrator under Arbitration & Conciliation Act 1996.
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence. There is recital in affidavit that deponent purchased truck No.HP-11- 4
Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 5479 which was financed by opposite parties in the year 2010. There is recital in affidavit that cost of vehicle in question was Rs.1136960/-(Eleven lac thirty six thousand nine hundred sixty). There is recital in affidavit that deponent already paid an amount to the tune of Rs.3.91 lakhs to opposite parties. There is recital in affidavit that on dated 03.12.2011 when vehicle in question was on its way from Bhageri to Bagga where cement plant is situated then opposite parties forcibly took possession of vehicle in question at place Shalughat with the help of criminals. There is recital in affidavit that deponent purchased vehicle in question to earn her livelihood. State Commission has carefully perused all annexures filed by complainant.
10. Opposite parties filed affidavit of Sh. Prem Chand SPA holder of opposite parties. There is recital in affidavit that present consumer complaint is not maintainable. There is recital in affidavit that vehicle in question was used for commercial purpose and not for earning livelihood. There is recital in affidavit that complicated facts are involved in present matter and complainant be relegated to civil court for adjudication of dispute. There is recital in affidavit that Award already stood passed against the complainant on dated 29.04.2013 by Arbitrator under Arbitration & Conciliation Act 1996 for a sum of Rs.391235/-(Three lac ninety one thousand 5 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 two hundred thirty five). There is recital in affidavit that still an amount of Rs.391235/-(Three lac ninety one thousand two hundred thirty five) is due to complainant after adjustment of sale amount of vehicle in question. There is recital in affidavit that vehicle in question was voluntarily surrendered by complainant. There is recital in affidavit that vehicle in question was sold in consideration amount of Rs.500000/- (Five lac) in open market and amount received after sale of vehicle in question was adjusted in loan account of complainant. There is recital in affidavit that despite the sale of vehicle in question loan amount could not be liquidated. State Commission has carefully perused all annexures filed by opposite parties.
11. Submission of learned Advocate appearing on behalf of complainant that opposite parties forcibly took possession of vehicle in question through criminal elements and committed deficiency in service and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that complainant obtained loan amount from opposite parties to the tune of Rs.1136960/-(Eleven lac thirty six thousand nine hundred sixty). It is also proved on record that loan amount was repayable by way of 35 EMI to the tune of Rs.32485/-(Thirty two thousand four hundred eighty five). It is proved on record that vehicle in question 6 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 already stood sold by opposite parties in consideration amount of Rs.500000/-(Five lac). Opposite parties have pleaded that a sum of Rs.391235/-(Three lac ninety one thousand two hundred thirty five) is still due against the complainant after adjustment of sale amount of vehicle in question to the tune of Rs.500000/-(Five lac). It is also proved on record that Award stood passed by Arbitrator Sh. S. Jaya Kumar Chennai relating to vehicle in question inter se parties on dated 29.04.2013 Annexure-R4 under Arbitration and Conciliation Act 1996 qua vehicle in question.
12. Arbitrator has specifically directed complainant to pay a sum of Rs.391235/-(Three lac ninety one thousand two hundred thirty five) alongwith interest @ 18% per annum from date of Award till actual payment. Arbitrator further ordered that in addition complainant would pay arbitration costs to the tune of Rs.2500/-(Two thousand five hundred). Arbitrator further ordered that in non compliance of Award Financier may proceed further by executing Award for recovery of amount due.
13. State Commission is of the opinion that after passing of final Award under Arbitration and Conciliation Act 1996 annexure-R4 against complainant relating to vehicle in question it is not expedient in the ends of justice and on the principles of natural justice to pass order under Consumer 7 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 Protection Act. See 2018(4) CLT 400 SCDRC Chhattisgarh titled Branch Manager HDFC Bank Ltd. and others Versus Chandra Shekhar. See 2007(1) CPJ 34 NC titled Instalment Supply Ltd. Versus Kangra Ex-serviceman Transport Co. & Anr. See 2017(III) CPJ 211 NC titled Vishnu Chandra Sharma Versus Sriram Finance Company Ltd. & Anr. See 2018(III) CPJ 380 NC titled Lalit Kumar Dangi Versus Kalpana P. Sanghavi & Anr. See 2016(II) CPJ 231 NC titled Magma Fincorp Ltd. Versus Gulzar Ali. See 2019(2) CLT 389 SCDRC Rajasthan titled Rameshwar Prasad Versus L&T Finance Ltd. and others. See 2018(1) CLT 312 NC M/s. Manas Constructions Versus L&T Finance Ltd. & others.
14. State Commission is of the opinion that dispute inter se parties is relating to settlement of accounts. It is well settled law that matter relating to settlement of accounts should not be decided under Consumer Protection Act in a summary manner. See 1998(III) CPJ 9 NC (Four members bench) titled Vishal Roadways Versus Economic Traders (Gujarat) Ltd.
15. Submission of learned Advocate appearing on behalf of complainant that Award was not in the knowledge of complainant and no proper notice was issued to complainant by Arbitrator under Arbitration & Conciliation Act 1996 and on this ground appeal filed by complainant be allowed is 8 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 decided accordingly. State Commission is of the opinion that complainant is at liberty to challenge Award as per provisions mentioned under Arbitration and Conciliation Act 1996 in accordance with law.
16. Submission of learned Advocate appearing on behalf of complainant that Award has been passed ex-parte in Chennai which is far from operation area of vehicle in question and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that complainant is at liberty to challenge Award as per provisions mentioned under Arbitration and Conciliation Act 1996 in accordance with law.
17. Submission of learned Advocate appearing on behalf of complainant that complainant has not given any consent for appointment of Arbitrator at Chennai and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that State Commission is not Appellate Authority under Arbitration & Conciliation Act 1996 and complainant is at liberty to challenge Award before competent Authority under Arbitration & Conciliation Act 1996 in accordance with law.
18. Submission of learned Advocate appearing on behalf of opposite parties that order of learned DCF/DCC is in 9 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 accordance with laws and proved facts and same does not warrant interference by State Commission is decided accordingly. State Commission is of the opinion that Award already stood passed against complainant relating to vehicle in question and it is not expedient in the ends of justice and on the principles of natural justice to pass order under Consumer Protection Act because Consumer Authorities are not Appellate Authority under Arbitration and Conciliation Act 1996. Point No.1 is decided accordingly. Point No.2: Final Order
19. In view of findings upon point No.1 above appeal filed by complainant is dismissed. Order of learned DCF/DCC is affirmed. Arbitration Award dated 29.04.2013 Annexure-R4 passed by Shri S. Jaya Kumar Arbitrator Chennai under Arbitration & Conciliation Act 1996 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
20. Certified copy of order be sent to learned DCF/DCC for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 10 Sevati Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.116/2019 23.02.2020 and due to country wide lockdown on account of Corona virus appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 26.05.2020 K.D 11