State Consumer Disputes Redressal Commission
Shriram Transport Finance Co.Ltd. & ... vs Manoj Kumar Verma on 15 June, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/246
Instituted on : 23.04.2018
(1) Shriram Transport Finance Company Ltd.,
101-105, First Floor, B Wing, Shiv Chamber,
Sector - 11, C.B.D. Belapur,
New Mumbai - 400614
(2) Shriram Transport Finance Company Ltd.,
Floor Law I, Swastika Bhawan,
National Highway, N.H. 12, Raipur Naka,
Near Punjab National Bank,
Kawardha, District Kabirdham (C.G.) ... Appellants (OPs)
Vs.
Manoj Kumar Verma, S/o Sawant Verma,
R/o : Village : Dhodha, Post : Gandai,
Tahsil : Chhuikhadan, Dist. Rajnandgaon (C.G.). .. Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Rajesh Pandey, Advocate for the appellants (OPs).
Miss Rashul Bhawnani, Advocate, for the respondent (complainant).
ORDER
DATED : 15/JUNE/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 19.02.2018, passed by District Consumer Disputes Redressal Forum, Kabirdham (C.G.) (henceforth "District Forum") in Complaint Case No.CC/19/2017. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
// 2 // (01) The complainant will pay remaining three installments of Rs.7,838, Rs.7,838 and Rs.7,838/- respectively within three months to the O.P. No.2.
(02) After receiving the amount of remaining three installments, the O.P. No.2 will provide No Objection Certificate within 15 days to the complainant.
(03) The O.P. No.2 will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony to the complainant.
(04) The cost of litigation of the complainant for the complaint shall be borne by the O.P. No.2.
(05) The Advocate's fees is quantified as Rs.2,000/- (Rupees Two Thousand).
2. Briefly stated the facts of the complaint of the complainant are that the complainant is an agriculturist. The complainant obtained financial assistance from the OPs through their agent on 06.03.2014 for purchasing a Maruti Omni Car. A sum of Rs.2,00,000/- was sanctioned by the OPs towards loan amount. The complainant was required to pay the above amount in equal installment of Rs.7,838/- upto 20.10.2016. For that purpose, the complainant gave cheque of Punjab National Bank, Branch Gandai of account No.7390000100019112 and from time to time the OPs are receiving the payment. The complainant purchased the above Maruti Omni Car from Ganpati Motors, Rajnandgaon for the year 2014-15 the vehicle in question was insured through Ganpati Motors, Rajnandgaon and thereafter for the year 2015-16 and 2016-17 also the vehicle in // 3 // question was got insured through Ganpati Motors, Rajnandgaon by making payment in cash. The policy No. for the year 2015-16 is 31260031140102508352 and for the year 2016-17, the policy No. is 31260031150103785718. The OPs had received the entire amount of finance from time to time from the complainant through cheque and some amount was received in cash by the OPs. The cheques of Rs.7,838/- each towards installment dated 20.08.2016, 20.09.2016 and 20.10.2016 is still deposited with the OPs. On the above three dates, in the loan account of the complainant more amount than the payable amount was deposited, even then the OPs did not receive the payment and sent message to the complainant through agent and directed the complainant to come Kawardha. When the complainant came to Kawardha, then the OPs unnecessarily demanded a sum of Rs.7,260/- and Rs.6,384/- towards insurance amount for the year 2015-16 and 2016-17 respectively, a sum of Rs.300/- towards cheque bouncing charges, Rs.10,317/- towards penalty. The complainant informed the OPs that the complainant never asked the OPs Insurance Company for getting the vehicle in question insured and cheque of the complainant was not bounced. Nothing is payable by the complainant to the OPs. The OPs are required to receive the amount of three installment of Rs.7,838/- each and to provide the N.O.C. regarding which registered notice was sent by the complainant to the OPs on 22.02.2017, but the OPs did not give reply of the same to the complainant till date. The OPs did not provide N.O.C. to the complainant which shows deficiency in service on the part of the OPs. The OPs are forcibly demanding a sum of Rs.47,408/- for providing N.O.C., which is contrary to principle of natural justice. Hence, the complainant filed // 4 // the instant consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. Inspite of service of notice, none appeared on behalf of the O.P. No.1 before the District Forum, therefore, the O.P. No.1 was proceeded ex-parte by the District Forum.
4. The O.P. No.2 filed its written statement and averred that the company of the OPs is a registered company under Indian Companies Act and there is a branch office of the OPs company at Kawardha. The complainant came to the O.P. No.2 and requested the O.P. No.2 to provide financial assistance to him for purchasing a vehicle. In response thereto, the O.P. No.2 provided the finance facility to the complainant under certain terms and conditions for purchasing the vehicle. The above amount was provided to the complainant towards loan. The complainant was required to pay the loan amount with interest and the complainant was provided facility to deposit the loan amount in installments. An agreement was executed between both the parties in which all terms and conditions of the finance are mentioned. The complainant had purchased the vehicle in question from Ganpati Motors, Rajnandgaon. The complainant got insured the vehicle in question from Ganpati Motors, Rajnandgon. The complainant requested the OPs for getting the vehicle in question insured, as the right of hypothecation of the OPs is accrued in respect of the vehicle at the time of providing finance facility, therefore, the amount of insurance of the vehicle is provided by the Insurance Company towards loan. In this sequence, the O.P. No.2 paid the amount of loan for two financial years in respect of the // 5 // vehicle in question. The Insurance Company has a right to take the above amount from the complainant. Amount of Rs.7,838./- is not deposited with the OPs. The Insurance Company has engaged an employee for collecting the amount of installment and through the above employee, the complainant was asked to make payment of outstanding amount. The insurance premium amount for two financial years and penalty amount of Rs.300/- as the cheque was dishonoured, is payable. The condition regarding imposing penalty in respect of not paying the installment is also mentioned in the agreement. Many installments are outstanding against the complainant. The complainant himself informed that three installments are outstanding. Thus, the complaint of the complainant is pre-mature. The OPs did not commit any deficiency in service. The OPs did not forcibly demand a sum of Rs.47,408/- from the complainant. The OPs demanded the amount from the complainant, which is outstanding in which the outstanding installment amount, amount of insurance premium and the amount of penalty, as per the agreement are included. Thus, by filing the instant complaint against the OPs, the complainant has made improper pressure on the OPs, whereas the Insurance Company provided the loan to the complainant for purchasing the vehicle. The complainant has not assigned any reason for filing the instant complainant and it is made clear that as per the agreement executed between the parties, the complainant was first of all required to approach the Arbitrator. Therefore, the complainant has not paid the amount of the installments of loan, hence, the averment regarding deficiency in service, is premature. The complainant is not entitled to get any // 6 // amount from the OPs. The complaint is liable to be dismissed against the OPs with compensatory cost of Rs.5,000/-.
5. The complainant has filed documents. Annexure A-1 is letter dated 23.03.2017 sent by the complainant to Sub Post Office, Gandai, Annexure A-2 are postal receipts, Annexure A-3 is registered notice dated 22.02.2017 sent by Shri Satish Singhania, Advocate on behalf of the complainant to the OPs, Annexure A-4 is Quotation dated 06.03.2014 issued by Ganpati Motors. The complainant has also filed copy of insurance receipt No.8353 dated 19.03.2015 issued by Ganpati Motors, Certificate Cum Policy Schedule, Insurance Receipt N.9231 dated 19.03.2016 issued by Ganpati Motors, Certificate Cum Policy Schedule, Insurance Receipt No.8880 dated 16.03.2017 issued by Ganpati Motors, Statement of Account for the period from 04.03.2014 to 22.02.2017, copy of pass book of the complainant, transaction sheet.
6. The OPs have not filed any documents.
7. Learned District Forum after having considered the material placed before it by the complainant, has allowed the complaint and directed the O.P. No.2 to pay the amounts to the complainant, as mentioned in para 1 of this order.
8. Shri Rajesh Pandey, learned counsel appearing for the appellants (OPs) has argued that the respondent (complainant) obtained loan for purchasing vehicle from the O.P. No.2 under certain terms and conditions. The above amount was provided to the complainant towards loan . The complainant was // 7 // required to pay the loan amount with interest in the installments. The agreement was executed between the parties. The complainant had purchased the vehicle in question from Ganpati Motors, Rajnandgaon and the vehicle was insured. The amount of insurance was provided by the Insurance Company towards loan. The Insurance Company has a right to take the above amount from the complainant. The amount of Rs.7,838/- is not deposited with the OPs. The complainant was asked by the OPs to make payment of due amount, but the same was not deposited by the complainant with the OPs. The insurance premium amount for two financial years and penalty amount of Rs.300/-, as the cheque was dishonoured, is payable. In the agreement executed between the parties, condition regarding imposing penalty is mentioned. Therefore, the OPs are entitled to received interest and penalty from the complainant. The complainant himself informed that three installments of the loan are outstanding. The complaint of the complainant is pre-mature. The OPs did not commit any deficiency in service. According to the terms and conditions of the agreement executed between the parties, it is the duty of the complainant to firstly approach to the arbitrator. The complainant has not paid the outstanding amount and the amount is still due against the complainant. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the appellants (OPs) be allowed and impugned order be set aside.
9. Miss Rashul Bhawnani, learned counsel appearing for the respondent (complainant) has argued that the respondent (complainant) had obtained financial assistance from the OPs through their agent on 06.03.2014, for // 8 // purchasing a Maruti Omni Car. A sum of Rs.2,00,000/- was sanctin by the OPs towards loan amount to the complainant. The complainant was required to pay the above amount in equal installments of Rs.7,838/- each upto 20.10.2016. The complainant gave cheque of Punjab National Bank, Branch Gandai, and from time to time the OPs are receiving the payment. The complainant purchased the vehicle in question from Ganpati Motors, Rajnandgaon. The vehicle in question was insured for the year 2015-16 and 2016-17 through Ganpati Motors, Rajnandgaon by making payment in cash. The OPs had received the entire amount of finance from time to time, from the complainant through cheque and some amount was received by the OPs in cash. The cheques of Rs.7,838/- each towards installment dated 20.08.2016, 20.09.2016 and 20.10.2016 is still deposited with the OPs. On the above three dates, in the loan account of the complainant, more amount than the payable amount was deposited, even then the OPs did not receive the payment. The OPs called the complainant Kawardha, when the complainant came to Kawarha, then the OPs unnecessarily demanded a sum of Rs.7,260/- & Rs.6,384/- towards insurance amount for the years 2015-16 and 2016-17 respectively, a sum of Rs.300/- towards cheque bouncing charges and Rs.10,317/- towards penalty. The OPs are required to receive the amount of three installment of Rs.7,838/- ach and to provide the N.O.C. regarding which registered notice was sent by the complainant to the OPs, but the OPs did not give reply of the same to the complainant. The complainant deposited entire loan amount with the OPs. The OPs are forcibly demanding a sum of Rs.47,408/- from the complainant for providing N.O.C., which is contrary to principle of natural justice and comes // 9 // within purview of unfair trade practice. The District Forum has rightly come to the conclusion that the O.P. No.2 has committed deficiency in service and the O.P. No.2 is liable to provide No Objection Certificate to the complainant. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the appellants (OPs) is liable to be dismissed.
10. We have heard learned counsels appearing for both the counsels and have also perused the record of the District Forum as well as the impugned order.
11. So far as the objection raised by the OPs regarding jurisdiction of the District Forum to hear the complaint on the basis of existence of the arbitration clause in the agreement executed between the parties, is concerned, copy of agreement has not been filed by the OPs, therefore, it cannot be held that in the agreement, arbitration clause, is mentioned. Even if we presume that in agreement any arbitration clause is mentioned, then merely mentioning of arbitration clause in the agreement, does not bar jurisdiction of the District Forum.
12 Section 3 of the Consumer Protection Act, 1986 runs thus :-
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
13. In Aftab Singh & Others Vs. Emaar MGF Land Limited & Anr. III (2017) CPJ 270 (NC), Hon'ble National Commission has observed thus :-
// 10 // "52. In view of the foregoing discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to subserve a particular public policy are not arbitrable; (ii) there are vast domins of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon'ble Supreme Court; (iv) Section 2 (3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (v) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended Sub-section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement."
14. In Satish Kumar Pandey & Ors. Vs. Unitech Ltd. III (2015) CPJ 440 (NC), Hon'ble National Commission has observed thus :-
"18. .................As Provided in Section 3 of the Consumer Protection Act, the provisions of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a Consumer Forum in a case of deficiency in the services reddered to him by the service provider or adoption of unfair trade Practices by him. This issue came up for consideration of the Hon'ble Supreme Court in National Seeds Corporation v. Madhusudhan Reddy & Anr., II (2012) SLT 51= I (2012) CPJ 1 (SC)= (2012) 2 SCC 506, and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C. P. Act it was held that the plain language of Section 3 of the C. P. 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 I force. The Hon'ble Supreme Court has also held that the complaint filed by a consumer before the Consumer For a would be maintainable despite their being an arbitration clause in the agreement fo refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the hon'ble Supreme Court which was later followed by a Three Members Bench of this Commission // 11 // in DLF Ltd. v. Mridul Estate Pvt. Ltd. R.P. No. 412 of 2011, decided on 13.05.2013, the aforesaid contention advanced by the learned Counsel for the opposite party is liable to be rejected."
15. In DLF Limited Vs. Mridul Estates (Pvt.) Ltd, III (2013) CPJ 439 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Sections 3, 21(b) - Arbitration and Conciliation Act, 1996 - Section 8 - Jurisdiction - Valid Arbitration Agreement - Reference of dispute - Maintainability of complaint - Complaint filed by a consumer under C.P. Act would be maintainable and relief cannot be denied by invoking jurisdiction of Section 8 of Arbitration Act, 19986 -
Remedy provided under CP Act is a special remedy with objective of redressal of grievances of affected consumers in expeditious and non-expensive manner - If small consumers are relegated to Alternative Dispute Resolution (ADR) mechanism of arbitration, remedy provided under CP Act would become illusionary - Consumer Fora are not bound to refer dispute raised in complaint on application filed under Section 8 of Arbitration Act, 1996 seeking reference of dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement entered into between parties."
16. In Navin Khanna (Dr.) & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr. III (2016) CPJ 203 (NC), Hon'ble National Commission has observed, thus :-
"(ii) Consumer Protection Act, 1986 - Section 3 - Complaint -
Maintainability - Arbitration Clause in agreement - Complainant can avail the alternative remedy - Complaint maintainable.
17. On the basis of above cited judgments, merely mentioning the arbitration clause in the agreement, does not bar the jurisdiction of District Forum or State Commission, therefore, the District Forum, Kabirdham (C.G.) has jurisdiction to entertain the instant complaint.
// 12 //
18. It is admitted fact that the respondent (complainant) had obtained loan from the O.P. No.2 for purchase the Maruti Omni Car and the same was payable in equal installments of Rs.7,838/-.
19. The complainant has filed Insurance Receipts, Statement of Account and photocopy of the pass book of the complainant. In the Insurance Receipt No.8353 dated 19.03.2015, Insurance Receipt No.9231 dated 19.03.2016 and Insurance Receipt No.8880 dated 16.03.2017 issued by Ganpati Motors, it is mention that Rs.6,027/-, Rs.6,299/- and Rs.5,670/- respectively was paid by Manoj Verma (complainant) towards insurance expenses for vehicle bearing registration No.C.G.08-U-0170. In the Statement of account, it is mentioned that OPs withdrawn Rs.7,838/- on 21.05.2014, 21.06.2014, 23.07.2014, 21.08.2014, 23.09.2014, 21.10.2014, 22.11.2014, 19.01.2015, 21.02.2015, 21.03.2015, 22.04.2015, 21.05.2015, 22.06.2015, 21.07.2015, withdrawn Rs.47,100/- on 30.01.2016, 23.02.2016, 22.03.2016, 22.04.2016, 24.05.2016, 22.06.2016 and on 22.07.2016. In the Statement of Account it is also mentioned that the OPs have received the amount of Rs.16.85 on 19.07.2014 towards SMS charges for the period from 01.04.2014 to 30.06.2014, Rs.,16.85 on 22.10.2014 towards SMS Charges for the period from 01.07.2014 to 30.09.2014, Rs.16.85 on 07.04.2015 towards SMT Charges for the period from 01.01.2015 to 31.03.2015, Rs.16.85 on 04.07.2015 towards SMS Charges for the period from 01.04.2015 to 30.06.2015, Rs.17.18 on 04.04.2016 towards SMS charges for the period from 01.01.2016 to 31.03.2016, Rs.17.25 on 07.07.2016 towards SMS charges for the period from // 13 // 01.04.2016 to 30.06.2016, Rs.17.25 on 06.01.2017 for the period from 01.10.2016 to 31.12.2016 etc.
20. Looking to the Statement of Account and copy of passbook of the complainant, it appears that the complainant had regularly deposited the installments of the loan with the OPs. According to the complainant, amount of three installments are only remained deposited with the OPs and the complainant is ready to deposit the same. The complainant gave cheque for remaining installments to the O.P. No.2.According to the OPs, the agreement was executed between the parties, but copy of the agreement was not produced by the OPs.
21. The complainant filed photocopy of pass book of the complainant. In the pass book, the entries regarding payment of the installments by the complainant, are mentioned. On 19.10.2016 a sum of Rs.24,568.89 was remained deposited in the bank account of the complainant. Therefore, when the cheque was issued by the complainant to the OPs, at that time sufficient amount was remained deposited in his bank account. The OPs have withdrawn the amount, which is mentioned in the cheque, therefore, it cannot be held that the complainant had defaulted in depositing the amount of installments. The complainant is entitled for getting No Objection Certificate from the OPs. The learned District Forum, has rightly directed the complainant to pay remaining three installments of Rs.7,838, Rs.7,838 and Rs.7,838/- respectively within three months to the O.P. No.2 and also rightly directed that after receiving the // 14 // amount of remaining three installments, the O.P. No.2 will provide No Objection Certificate within 15 days to the complainant.
22. The learned District Forum has also rightly awarded a sum of Rs.10,000/- towards compensation for mental agony and Rs.2,000/- towards cost of litigation to the complainant and against the O.P. No.2.
23. In view of above discussions, we are of the firm opinion that the impugned order dated 19.02.2018, 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.
24. Hence, the appeal filed by the appellants (OPs) 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) (Smt. Ruchi Goel)
President Member Member Member
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