State Consumer Disputes Redressal Commission
Manager, Add Trucks Commercial Pvt. ... vs Md. Zahid Hussain on 15 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/61/2016 ( Date of Filing : 21 Jan 2016 ) (Arisen out of Order Dated 31/12/2015 in Case No. CC/572/2014 of District Howrah) 1. Manager, Add Trucks Commercial Pvt. Ltd. 1, Garstin Place Orbit, 3rd Floor, Room No. - 3C, Kol - 700 001. ...........Appellant(s) Versus 1. Md. Zahid Hussain S/o, Lt. Abdul Mazid, 17/3/1, Seal Basti Second Bye Lane, P.S - Shibpur, Dist - Howrah. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. Tanusree Dhar, Advocate For the Respondent: Tutul Das., Advocate Dated : 15 Jun 2018 Final Order / Judgement Sri Shyamal Gupta, Member
Present Appeal is directed against the Order dated 31-12-2015, passed by the Ld. District Forum, Howrah in CC/572/2014, whereof the complaint has been allowed.
Brief facts of the complaint case are that, he took a loan from the OP for the purpose of purchasing a vehicle. It is alleged that although he repaid the loan fully, the OP arbitrarily demanded more money from him; hence, the complaint.
Rival contention of the OP is that, the complaint case was not maintainable before the Ld. District Forum. Further case of the OP is that, the complainant owed it a sum of Rs. 1,21,200/-.
Decision with reasons Both sides were represented by their respective Ld. Advocates. We have heard them and perused the documents on record, including the citations referred to in the matter.
It is firstly contended by the Ld. Advocate for the Appellant that in terms of the Hire Purchase Agreement executed between the parties, all disputes were required to be referred to an Arbitrator and accordingly, it referred the matter to an Arbitrator. As the Respondent remained absent at the time of hearing, the Ld. Arbitrator passed an ex parte order before delivery of the final order by the Ld. District Forum. According to the Ld. Advocate, in view of this, the complaint case was not maintainable before the Ld. District Forum.
Ld. Advocate for the Respondent, however, claimed that the Ld. District Forum was competent enough to adjudicate the dispute and accordingly, he filed the complaint before it.
In this respect, we are of opinion that stipulation of arbitration clause in the hire purchase agreement is no bar to agitate such issue before the Consumer Fora. Some of the pertinent opinions expressed by the Hon'ble Supreme Court in this regard are worth mentioning.
In Skypay Couriers Limited v. Tata Chemicals Limited, (2000) 5 SCC 294 the Hon'ble Court observed:
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."
In Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316 it was observed:
"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy."
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 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, AIR 1997 SC 533, 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".
Besides, it appears from the documents on record that while the complaint case was filed before the Ld. District Forum on 07-11-2014, the Appellant referred the matter to the Arbitrator concerned by issuing a letter on 14-11-2014. Thus, while the complaint case was filed before referring the matter to the Arbitrator, the Ld. District Forum was well within its right to adjudicate the dispute under the 1986 Act. Opposition of the Appellant in this regard is not tenable.
Coming to the merit of the case, we find that notwithstanding the Appellant claimed that the Respondent owed it a sum of Rs. 1,21,200/-, for the reasons best known to it, no Statement of Account is placed on record to show the basis of such calculation. On the other hand, we find that admittedly the Respondent paid 28 EMIs out of the 35 EMIs. Moreover, although the Respondent claimed that he paid a sum of Rs. 55,000/- on 12-07-2014, the Appellant has not made any specific denial regarding receipt of this amount from the Respondent. While the sum total of above payments visibly exceeded the amount payable to the Appellant, it is indeed baffling, on what basis the outstanding amount shot up so considerably. Since the Appellant has miserably failed to justify its demand, by allowing the complaint, the Ld. District Forum committed no infirmity.
The Appeal, accordingly, fails.
Hence, O R D E R E D The Appeal stands dismissed on contest against the Respondent. The impugned order is hereby affirmed. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER