State Consumer Disputes Redressal Commission
B.M. Area Sales Manager, Magma Leasing ... vs Mukesh Kumar Agrawal & Ors. on 27 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/327
Instituted on : 08.05.2013
Branch Manager / Area Sales Manager,
Mgma Leasing Limited,
Ambikapur, Surguja (C.G.) ... Appellant.
Vs.
1. Mukesh Kumar Agrawal, S/o Suresh Agrawal,
Aged about 26 years,
R/o : Main Road,
P.S. Lakhanpur, District Surguja (C.G.)
2. National Insurance Company Limited,
Registered Office - 3, Middleton Street,
P.O. No.9229,
Kolkata - 700071
3. Divisional Manager, Divisional Office,
National Insurance Company Limited,
Bilaspur (C.G.). ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K.PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Sunil Otwani, for the appellant.
Shri Mukesh Sharma, for the respondent No.1.
Shri Dashrath Gupta, for the respondent No.2 & 3.
ORDER
Dated : 27/03/2015 PER :- HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT. This appeal is directed against the order dated 02.04.2013, passed by District Consumer Disputes Redressal Forum, Surguja, // 2 // Ambikapur (C.G.) (henceforth called "District Forum"), in Complaint Case No.49/2006. By the impugned order, learned District Forum has allowed the complaint and directed the appellant (O.P. No.1) to pay within a month from the date of order a sum of Rs.35,689/- along with interest @ 18% p.a. from 15/02/2007. The District Forum has further directed the appellant (O.P. No.1) to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.2,000/- as Advocate fees and cost of litigation to the respondent (complainant). The complaint has been dismissed against the respondent No.2 & 3 (O.P.No.2 & 3).
2. Briefly stated, the facts of the case are that the respondent No.1 (complainant) had purchased vehicle Pick Up 207 bearing registration No.C.G.15-A-2169 with the financial assistant obtained under Hire Purchase Agreement from the appellant (O.P.No.1). The said vehicle was insured with the respondent No.2 (O.P.No.2) for the period from 11.10.2004 to 10.10.2005 under Insurance Policy No.158105/31/84/6387079. During period of subsistence of the insurance the vehicle in question was parked in the front of the house of respondent No.1 (complainant) on 07.02.2005, but the same was stolen by some unknown person. The incident was reported in writing to the Police Station, Lakhanpur on 07.02.2005 and crime no.19/05 was registered and investigation was made. During the investigation, the vehicle and the accused could not be traced therefore the Superintendent of Police, Surguja submitted Khatma Report No.06/05 // 3 // dated 21.05.2005. The respondent no,.1 (complainant) submitted application along with documents before the appellant (O.P.No.1) on 08.02.2005 for obtaining claim amount and the respondent No.3 (O.P. No.3) issued Motor Claim Form which was provided to the Insurance Company on 22.08.2005. The relevant documents relating to the vehicle in question, were provided to the respondent No.3 (O.P.No.3). The Insurance Company appointed Shri Jagat Ratnani as Surveyor who assessed the loss and submitted his report. The Insurance Company has determined the value of the vehicle in question as Rs.3,37,484/- but has not paid the said amount and after a long period the Insurance Company has paid a sum of Rs.3,37,200/- to appellant (O.P.No.1) instead of the respondent No.1 (complainant). The appellant (O.P.No1) has received the said amount. In the Execution Petition, which has been filed by the appellant (O.P.No.1), the amount to be paid is mentioned as Rs.2,48,547/- as on 20.07.2009 and prior to this Execution Petition, on 10.07.2006, a sum of Rs.2,28,167/- was due. The appellant (O.P. No.1) informed that a sum of Rs.2,13,000/- has been adjusted in the account, therefore, it is clear that after adjusting a sum of Rs.2,13,000/- from the sum of Rs.3,37,200/- and thereafter a sum of Rs.1,24,200 was not adjusted in the loan account and the sum of Rs.1,24,000/- has been received as extra amount. In spite of giving intimation regarding the theft of the vehicle, the appellant (O.P.No.1) has charged panel interest. Therefore, the respondent No.1 // 4 // (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The appellant (O.P.No.1) has filed written statement and averred that the appellant (O.P.No.1) is a finance company and with the help of financial assistance provided by it to the tune of Rs.3,10,000/-, the respondent No.1 (complainant) purchased vehicle bearing registration No.C.G.15-A-2169, which was insured with the respondent Nos.2 & 3 (O.P.No.2 & 3). The respondent No.1 (complainant) is only a Hirer of vehicle bearing registration No.C.G.15-A2169 and not the registered owner. On 08.02.2005, the respondent No.1 (complainant) intimated the appellant (O.P.No.1) regarding theft of the vehicle, but the appellant (O.P.No.1) has no knowledge regarding the Final Report No.06/05 dated 21.05.2005 by Superintendent of Police, Surguja. As per terms and conditions of the Hire Purchase Agreement and per Insurance Claim Form, the respondent No.2 & 3 (O.P.No.2 & 3) are responsible to give the insured amount to the respondent No.1 (complainant), the respondent No.1 (complainant) is not entitled to receive the insured amount directly. On 15.02.2007, the Insurance Company paid a sum of Rs.3,37,200/- to the appellant (O.P.No.1). On 15.02.2007, a sum of Rs.2,13,000/- was adjusted and as on 15.02.2007, a sum of Rs.1,50,450/- was due on the respondent No.1 (complainant) towards delay charges and a sum of Rs.26,250/- is still to be recovered from him. After 27.01.2005, the // 5 // respondent No.1 (complainant) has not paid any instalment to the appellant (O.P.No.1) and after 24 months a sum of Rs.3,37,200/- was received from the Insurance Company. The respondent No.1 (complainant) provided a cheque of Rs.31,800/- which was also bounced. The Arbitrator has passed award against the respondent No.1 and Execution Case No.13/2006 is pending before the District Judge, Ambikapur, therefore the District Forum has no jurisdiction to hear the matter. The appellant (O.P.No.1) has not committed any deficiency in service as well as professional misconduct. The complaint is liable to be dismissed.
4. The respondent No.2 & 3 (O.P.No.2 & 3) have also filed written statement and averred that the respondent No.1 (complainant) has not provided the relevant documents i.e. original insurance certificate, certified copy of fitness certificate, ignition key of the vehicle which was stolen, for the settlement of his claim to the Insurance Company through appellant (O.P.No.1) and in absence of which the Insurance Company was unable to settle the claim of the respondent No.1 (complainant). The respondent No.1 (complainant) himself was responsible for the delay occurred in settlement of his claim.
5. Earlier, the District Forum, vide order dated 25.11.2006, has dismissed the complaint as premature. The respondent No.1 (complainant) has been directed to execute the contract bond as sought // 6 // by the O.P. No.1 and to avail the relevant documents and key of the vehicle to the respondent No.2 & 3 (O.P.No.2 & 3) within 30 days. The OPs have also been directed to settle the clam of the respondent No.1 (complainant) within 30 days from the receipt of relevant document, keys of the vehicle and execution of the bond. If the respondent No.1 (complainant) is at liberty to file complaint before the District Forum he is not satisfied with the decision of the OPs. The respondent No.1 (complainant) will bear cost of the complaint of the OPs as well as his own which is fixed as Rs.2,000/-.
6. Against the order dated 25.11.2006 passed by the District Forum, the respondent No.1 (complainant) filed appeal No.737/06 before this Commission. This Commission vide order dated 04.05.2007 allowed the appeal and remitted back the case to the District Forum. The relevant portion of the order reads thus :- "
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// 7 //
7. After having considered the material placed before it by both the parties, learned District Forum, has allowed the complaint and directed the appellant (O.P.No.1) to pay compensation to the respondent No.1 (complainant) as mentioned in the complaint.
8. The respondent No.1 (complainant) has filed documents. Document Ex.1 is invoice no.537 dated 21.10.2003 issued by Shivam Motors (P) Ltd., Ex.2 is copy of insurance policy, Ex. 3 is Registration Certificate, Ex. 4 is First Information Report, Ex. 5 is letter dated 18.7.2005 sent by Superintendent of Police, Surguja to the respondent (complainant), Ex. 6 is letter sent by the respondent No.1 (complainant) to Branch Manager, Magma Leasing Ltd., Ex. 7 is Motor Claim Form, Ex. 8 is Form 38, Ex. 9 is letter sent by the respondent No.1 (complainant) to the Addl. Regional Transport Officer, Ambikapur, Ex. 10 is letter sent by the respondent No.1 (complainant) to Branch Manager, Magma Leasing Ltd., Ex. 11 is copy of Insurance policy, Ex.12 & 13 are receipts issued by Madhur Courier, A/14 is letter sent by the respondent No.1 (complainant) to Branch Manager, Magma Leasing Ltd., A/15 is postal receipt, A/16 is notice sent by Shri Arvind Mehta, Advocate to the Branch Manger, Magma Leasing Ltd., A-17 is acknowledgement, A-18 is copy of letter 14.02.2007 set by the National Insurance Co. to the CEO-II, (Tech.U/W & Claims) Deptt. Kolkata, D-1 is copy of award dated 21.10.2003 passed by Shri Partha Sarthi Ghosh, D/2 is Vehicle Cum Hypothecation Agreement, D-3 is statement of // 8 // account, D-4 is letter dated 05.09.2006 sent by Magma Leasing Ltd. to the respondent No.1 (complainant), D-5 is Subrogation Cum Indemnity Letter,, D/6 is acknowledgement, D-8 is order sheet recorded by District Judge, Surguja, Ambikapur, D-9 is Application for Execution of decree, D-10 is statement of account.
9. Shri Sunil Otwani, learned counsel appearing for the appellant (O.P.No.1) has argued that the respondent No.1 (complainant) had committed default in payment of borrowed amount and there was a huge amount due against the respondent No.1 (complainant). The appellant (O.P.No.1) has invoked the clauses of the Agreement the appellant (O.P.No.1) and the respondent No.1 (complainant) and thereafter matter was referred to the Arbitration. The learned Arbitrator passed the award on 08.03.2006 and he awarded a sum of Rs.2,48,547/- in favour of the appellant (O.P.No.1) and against the respondent No.1 (complainant). He further argued that if once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the District Forum, has no jurisdiction to entertain the complaint. In the instant case, the Arbitrator passed the award on 08.03.2006 and after passing the award by the Arbitrator, the respondent No.1 (complainant) filed the instant complaint on 09.03.2006 i.e. after passing of the award by the Arbitrator, therefore, the complaint is not maintainable before the District Forum, but learned District Forum, has erroneously allowed the complaint. He // 9 // further argued that the appellant (O.P.No.1) has filed execution case before Court of District Judge, Ambikapur (C.G) and the respondent No.1 (complainant) was having right to raise objection before the Executing Court for adjustment of the amount, therefore, the District Forum, has no jurisdiction to decide the matter, The execution case is still pending before the Court of District Judge, Ambikapur (C.G.). The appellant (O.P.No.1) has received a claim to the tune of Rs.2,13,000/- which has already been debited to the account of the respondent No.1 (complainant) on 15.02.2007 and remaining amount to the tune of Rs.1,24,000 is being adjusted against the Sundry Debtors. He further argued that the present complaint relates to settlement of accounts and recovery of balance amount, therefore, the District Forum has no jurisdiction to decide the matter and only Civil Court is competent to decide the matter, hence the impugned order passed by the District Forum, is liable to be set aside.
10. Shri Mukesh Sharma, learned counsel appearing for the respondent No.1 (complainant) has argued that the impugned order passed by the learned District Forum is just and proper and does not call for any interference by this Commission. The compliant of the respondent No.1 (complainant) is maintainable. He further argued that merely on the ground that award was passed by the Arbitrator in the arbitration proceeding, the right of the respondent No.1 (complainant), cannot be extinguished. From bare perusal of provision // 10 // of Section 3 of the Consumer Act, 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. It is the choice of the respondent No.1 (complainant) to choose a Forum to file complaint, therefore, the complaint is maintainable and the impugned order passed by the learned District Forum, is reasonable and justified and does not call for any interference by this Commission.
11. Shri Dashrath Gupta, learned counsel appearing for respondent No.2 & 3 (O.P.No.2 & 3) has argued that the appellant (O.P.No.1) is a financer and therefore the respondent No.2 & 3 (O.P.No.2 & 3) after making assessment of loss, paid the amount of assessed loss to the financer. He further argued that the learned District Forum, has rightly exonerated the Insurance Company from the liability of payment of any compensation to the respondent No.1 (complainant).
12. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
13. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. 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 // 11 // possible to say that he cannot, subsequently, filed 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 Act. Moreover, the plain language of Section 3 of the Consumer 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. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and // 12 // circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
14. In the case of Instalment Supply Ltd. vs. Kangra Ex- Serviceman Transport Co. & Anr., I (2007) CPJ 34 (NC), Hon'ble National Commission, has observed thus :-
"3. Dissatisfied with the order of State Commission, the petitioner has filed the revision. It was contended by the Counsel of the petitioner that an arbitration award has been passed in this case which is binding on the parties. He further submitted that the complaint was barred by res judicata inasmuch as respondent No.1 concealed from this Commission that all disputes between the petitioner and respondent No.1 had already been settled by arbitration in accordance with Arbitration Agreement contained in the said Hire Purchase Agreement (HPA). The award dated 5.9.2000 of the Arbitrator Mr. K.L. Bhendwal had already been published and delivered and the award takes into account all the payments made or due. In terms of said award, the respondent No.1 owes the petitioner a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement. Though, this fact was brought to the notice of District Forum in the reply but was ignored.
"..........The said award had taken into account all payments made or due under the said agreement, and has held that the respondent No.1 owed the appellant a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement."
15. In the instant case, the respondent No.1 (complainant) pleaded that the respondent No.2 & 3 (O.P.No.2 & 3) paid a sum of Rs.3,37,200/- to the appellant (O.P.No.1), which was received by the appellant (O.P.No.1). The respondent No.1 (complainant) averred in the complaint that the appellant (O.P.No.1) filed Execution Case // 13 // before Court of District Judge, Ambikapur in which the appellant (O.P.No.1) mentioned that only a sum of Rs.2,48,547/- is due against the respondent No.1 (complainant) as on 20.07.2009 and before the execution proceeding, as on 10.07.2006 the appellant (O.P.No.1) mentioned that a sum of Rs.2,28,167/- is due against the respondent No.1 (complainant). This averment in the complaint was pleaded by the respondent No.1 (complainant) after amending the complaint and in reply the appellant (O.P.No.1) specifically pleaded that on 15.02.2007 the amount of Rs.2,13,000/- was adjusted in the account of the respondent No.1 (complainant) and after adjustment a sum of Rs.1,50,450/- is due against the respondent No.1 (complainant) as on 15.02.2007 towards delay payment charges, therefore a sum of Rs.1,24,200/- was taken against delay payment charge and still a sum of Rs.26,250/- is due against the respondent No.1 (complainant). The matter was referred to the Arbitrator and the Arbitrator passed the award on 08.03.2006 against the respondent No.1 (complainant) and the Execution Case is pending before the Court of District Judge, Ambikapur.
16. The respondent No.1 (complainant) cross-examined Shri Manish Dubey, Area Manager, Magma Fincorp Ltd., Ambikapur (C.G.) as witness, and he deposed that according to terms of the Hire Purchase Agreement, the matter was referred to Arbitrator and the Arbitrator passed award on 08.03.2006 and awarded a sum of Rs.2,48,547.00 in // 14 // favour of the appellant (O.P.No.1) and against the respondent No.1 (complainant) and also awarded interest @ 18% p.a. w.e.f. 11.01.2006 on the above amount. On the basis of the award passed by the Arbitrator, the appellant (O.P.No.1) filed Execution Case No.13/06 before the Court of District Judge, Ambikapur for recover of a sum of Rs.2,74,410/-. In para 12, Manish Dubey deposed that the matter was referred to the Arbitrator on 09.01.2006.
17 . From the bare perusal of the pleadings of both the parties and statement of Shri Manish Dubey it appears that the appellant (O.P.No.1) referred the matter to the Arbitrator on 09.01.2006 and the Arbitrator has passed award in the arbitration proceedings on 08.03.2006. Thereafter the appellant (O.P.No.1) passed Execution Case No.13/06 before Court of District Judge, Ambikapur (C.G.), which is still pending there. In that proceeding, notice has been issued to the respondent No.1 (complainant). It appears that the respondent No.1 (complainant) was having knowledge regarding the execution proceedings.
18. If once award is passed by the Arbitrator, then only remedy available to an aggrieved party is to file an application before the District Judge having jurisdiction. In the instant case, the appellant (O.P.No.1) has filed execution case before the Court of District Judge, Ambikaur and if any excess amount was paid to the appellant // 15 // (O.P.No.1) and if the respondent No.1 (complainant) is entitled to receive the said excess amount, then he has a right to move an application before the Court of District Judge in the Execution Petition, for adjustment of the amount.
19. In Vishal Roadways vs. Economic Traders (Gujarat) Ltd., III (1998) CPJ 9 (NC), Hon'ble National Commission has observed that the complaint relates to settlement of accounts between the parties and recovery of balance amount, and appropriate remedy lies in the Civil Court and it is not a "consumer dispute."
20. In the instant case, the Award has been passed by the Arbitrator on 08.03.2006 and therefore, the respondent No.1 (complainant) filed present complaint on 09.03.2006. It appears that the respondent No.1 (complainant) filed the present complaint after passing of the award by the Arbitrator.
21. Looking to the facts of the instant case, it appears that the complaint relates to settlement of account and recovery of balance amount, between the parties, therefore, the District Forum, has no jurisdiction to decided the matter and only appropriate remedy lies in Civil Court.
22. We are of the view that once award is passed by the Arbitrator, the complaint before the District Forum under Consumer Protection Act, 1986, is not maintainable.
// 16 //
23. In view of aforesaid discussions, we find that the finding recorded by the District Forum is erroneous and liable to be set aside.
24. Therefore, the appeal filed by the appellant (O.P.No.1) is allowed and the impugned order dated 02.04.2013, passed by the District Forum, is set aside. Consequently, the complaint also stands dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (D.K.Poddar)
President Member
/03/2015 /03/2015