State Consumer Disputes Redressal Commission
Sh. Jagdish Kainthla. vs M.D/Inchage Bajaj Allianz Co. & Anr. on 29 December, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 183/2015
Date of Presentation:29.09.2015
Date of Decision: 29.12.2015.
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Jagdish Kainthla,
Son of late Shri D.R Kainthla,
Resident of Village Sunthi,
Post Office Matiana, Tehsil Theog,
District Shimla, Himachal Pradesh.
... Appellant.
Versus
1. The Managing Director/
Incharge Bajaj Allianz Company,
Office at Dipta Niwas,
Lower Khalini, Shimla-171002,
Himachal Pradesh.
2. The M.D/Incharge Tata Motors Finance Ltd.,
O/O Goma Niwas Lower Chakkar,
Shimla,
Now shifted to Rajgarh Road,
Near D.C Office Solan at Solan.
...Respondents
...................................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr. Ravi Shanker Sood, Advocate.
For Respondent No.1 Mr. Vikram Singh Thakur, Advocate
For Respondent No.2 Mr. Sanjay Gandhi, Advocate.
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O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against the order dated 07.09.2015, of learned Consumer Disputes Redressal Forum, Shimla, 1 Whether reporters of the local papers may be allowed to see the order? Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the respondents, has been dismissed, with the finding that issues raised in the complaint pertain to the settlement of accounts and disputed facts for adjudication of which, Civil Court alone is competent.
2. Appellant purchased a truck bearing registration No.HP-07B-2273, in September, 2007, by raising a loan of `7,50,000/-, from respondent No.2. Loan amount was to be paid in forty eight monthly installments of `22,200/- each. Vehicle was insured with respondent No.1, in the sum of `8,41,494/-, from 09.08.2008 to 08.08.2009, when it met with an accident. According to the appellant, it was a case of total loss. Respondent No.1 was asked to get the loss assessed from its surveyor and to pay the insurance money. Surveyor allegedly required the appellant to take the damaged vehicle to Ludhiana for assessment of the salvage value of the vehicle, (as it was a case of total loss). When the vehicle was at 2 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) Ludhiana respondent No.1 instead of getting the salvage value assessed through its surveyor, coerced the appellant to accept a sum of `4,75,000/-, in full and final satisfaction of his claim on 'cash loss basis'. The aforesaid amount of money instead of being paid to the appellant was remitted in his loan account with respondent No.2, without his knowledge. Respondent No.2 was not entitled to receive the entire amount of money, because all the monthly installment due upto October, 2008 had been paid. Instalments due after October, 2008, could not be paid by the appellant, because the vehicle having been completely damaged in the accident, could not be plied. Respondent No.2 was entitled to money equivalent to the amount of unpaid installments from November, 2008, to March, 2009, when the amount of `4,75,000/-, was remitted in the loan account by respondent No.1.
3. It is alleged that respondent No.1 ought not to have remitted the entire amount of money to the loan account of the appellant with 3 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) respondent No.2 and respondent No.2 also ought not to have retained the entire amount of `4,75,000/-, with it. Respondent No.2 should have retained money, equivalent to the amount of money due on account of installments from November, 2008, to March, 2009, plus some penal interest, on account of delay in the payment of such installments at the most. Respondent No.2 is alleged to have retained the entire amount of money and adjusted the money in excess of due installments (due upto March 2009) against future installments only on due dates and not in one go and thus, not only did it not give any rebate in interest because of having received a huge amount of money in advance (from respondent No.2), but also did not credit any amount of money in the loan account, on account of interest on the money received in advance.
4. Respondent No.2 is alleged to have not only not refunded the excess amount to the appellant or given any rebate in interest or given 4 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) any credit to the appellant for the money, received in advance in the loan account, but also repossessed the vehicle in January, 2013, without any prior notice and eversince, the vehicle is with them. They were approached to return the vehicle, but to no avail. Also, respondent No.2 is alleged to have made a demand for a sum of `4,39,731/-, plus future interest, in terms of an arbitration award, obtained by it, behind the back of the appellant.
5. Complaint was contested by both the respondents. Respondent No.1 pleaded that amount of `4,75,000/-, had been accepted by the appellant, in full and final satisfaction of his claim, voluntarily. It was pleaded that the vehicle had not been completely damaged and, therefore, it was not a case of total loss.
6. Respondent No.2 pleaded that after the receipt of money from respondent No.1, in the loan account of the appellant, the latter did not pay installments due from the year 2011 upon which notices were issued to him and when he 5 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) paid no heed to the notices, financed vehicle was repossessed. Also, it was pleaded that the agreement of loan, provides for arbitration and that in accordance with the arbitration clause, in the agreement, matter was referred to the Arbitrator, who vide award dated 3rd December, 2012, has worked out the liability of the appellant to the tune of `4,39,731/-.
7. Learned District Forum, vide impugned order, has held that the appellant accepted the amount of `4,75,000/- in respect of the insurance claim voluntarily and therefore, he has no case against respondent No.1. As against the allegation against respondent No.2, the learned District Forum has held that the Arbitrator has already given his award in respect of dispute raised by the appellant and therefore, it has no jurisdiction to go into the issue.
8. We have heard learned counsel for the parties and gone through the record.
9. An application for additional evidence has been moved by the appellant, in which, 6 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) prayer is made for directing respondent No.1 to produce the Surveyor's report. As we would be discussing hereinafter, the appellant is shown to have accepted the amount of `4,75,000/-, in full and final satisfaction of his claim, without any pressure or duress. Therefore, there is hardly any need for looking into the report of Surveyor. Hence, application for additional evidence, moved by the appellant, is rejected.
10. Appellant submitted a writing addressed to the Manager of respondent No.1, duly notarized and as per this writing, he agreed to receive the amount of `4,75,000/- and to retain the vehicle. There is no reference in the writing indicating that there was any pressure or coercion on the appellant to accept the amount of `4,75,000/-. Not only this, it is the appellant's own case that he got the vehicle repaired and started using it to earn profit soon-after receipt of amount of `4,75,000/-, from respondent No.1. We are saying so, because in the allegation, made against the respondent No.2, the appellant has 7 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) stated that he got the vehicle repaired by spending an amount more than `7,00,000/- and when it had become roadworthy, respondent No.2 repossessed it illegally in January, 2013. That means it was not a case of total loss of the insured vehicle.
11. We find no evidence in support of appellant's plea that the vehicle was directed to be taken to Ludhiana for the assessment of its salvage value. Not only that there is no writing on record by the Surveyor or respondent No.1, suggesting that the vehicle was directed to be taken to Ludhiana for the assessment of its salvage value, but also the appellant himself did not state in any of his own documents that the vehicle was directed to be taken for assessment of the salvage value. What the appellant stated in his documents, including notice, Annexure CE-7, which is dated 20.05.2009, that the vehicle was directed to be taken to Ludhiana for assessment of loss by the Surveyor.
8
Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015)
12. In view of the above discussion, we find no merit in the appeal, as regards the claim of appellant against respondent No.1, is concerned.
13. As regards grievance against respondent No.2, already an award by the Arbitrator, who was appointed in accordance with the loan agreement between the appellant and respondent No.2, has been passed. It is not disputed by the appellant that award has been given by the Arbitrator. Rather, he admits that he had received a notice of arbitral reference from an Arbitrator and sent reply to him. He, however, did not pursue the proceedings before the Arbitrator.
14. Today an application has been moved on behalf of respondent No.2 and with that application, copy of award has been submitted. Date of the award is 3.12.2012. That means the dispute stood adjudicated before the complaint, out of which this appeal has arisen was decided by the Forum. Since the Arbitrator, as per copy 9 Jagdish Kainthla Versus M.D/Incharge Bajaj Allianz Co. & Anr.
(F.A. No.183/ 2015) of award, submitted with the application, has already decided the issue with regard to dispute between the appellant and respondent No.2, Consumer Forum cannot re-determine the issue, because the Consumer Fora do not have jurisdiction to sit in judgment over the awards of Arbitrators. The remedy, open to the appellant, is by way of challenging the award, as per provisions of Arbitration and Conciliation Act, 1986.
15. In view of the above stated position, appeal as against respondent No.2, is also dismissed.
16. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member December 29, 2015.
DKM) 10