State Consumer Disputes Redressal Commission
Smt. Sunita Devi vs Hinduja Leyland Finance Ltd. & Ors. on 27 May, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 117/2019
Date of Presentation : 03.11.2017
Order Reserved on : 06.11.2019
Date of Order : 27.05.2020
......
Sunita Devi wife of Shri Pawan Kumar 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 SAID 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.
Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019 Commission in consumer complaint No.155/2013 titled Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. Brief facts of consumer complaint:
2. Smt. Sunita Devi filed consumer complaint under Consumer Protection Act pleaded therein that complainant purchased truck bearing registration No.HP-11-5305 in the year 2010. It is further pleaded that vehicle in question was financed by opposite parties. It is further pleaded that on 03.12.2013 when vehicle in question was on its way from Bagheri to Bagga opposite parties with the help of criminal elements took forcible possession of vehicle in question at place Shalughat. It is further pleaded that driver and conductor of vehicle in question were beaten and keys of truck in question took into possession forcibly. It is further pleaded that opposite parties committed deficiency in service and unfair trade practice. Complainant sought relief to the effect that opposite parties be directed to return vehicle in question to complainant. In addition complainant sought relief to the effect that opposite parties be directed to pay damages to the tune of Rs.200000/-(Two lac) for mental agony and harassment. In addition complainant sought relief for payment of Rs.100000/-(One lac) for retaining vehicle in question by opposite parties in illegal manner. Prayer for acceptance of consumer complaint sought.
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Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019
3. Per contra version filed on behalf of opposite parties pleaded therein that complicated questions of facts and laws are involved in present matter and complainant be relegated to civil court for adjudication of dispute. It is further pleaded that vehicle in question was used for commercial purpose and was not used for earning livelihood by complainant. It is further pleaded that complainant has no cause of action against opposite parties. It is further pleaded that complainant has suppressed material facts from Consumer Authority. It is pleaded that Award dated 29.04.2013 already stood passed by Arbitrator under Arbitration & Conciliation Act 1996 against complainant for payment of loan amount. It is further pleaded that loan to the tune of Rs.935000/- (Nine lac thirty five thousand) was sanctioned alongwith finance charges to the tune of Rs.201960/- (Two lac one thousand nine hundred sixty) vide loan agreement dated 17.09.2010. It is further pleaded that loan amount was payable by complainant in 35 (Thirty five) EMI of Rs.32485/- (Thirty two thousand four hundred eighty five). It is further pleaded that complainant committed default in payment of loan installments.
4. It is further pleaded that vehicle in question was sold in consideration amount of Rs.500000/- (Five lac) on dated 11.08.2012 and sale amount was adjusted in the loan 3 Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019 account of complainant. It is further pleaded that after adjustment of loan amount payment to the tune of Rs.385477/- (Three lac eighty five thousand four hundred seventy seven) is still due from complainant. It is denied that on 03.12.2013 opposite parties forcibly took possession of vehicle in question. It is further pleaded that vehicle in question was voluntarily surrendered. It is further pleaded that opposite parties did not commit any deficiency in service and unfair trade practice. Prayer for dismissal of consumer complaint sought.
5. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. 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 not expedient in the ends of justice and on the principles of natural justice to pass subsequent order under Consumer Protection Act after passing of Award 4 Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019
against complainant by Arbitrator under Arbitration and Conciliation Act 1996 relating to vehicle in question.
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant Smt. Sunita Devi filed affidavit in evidence. There is recital in affidavit that deponent purchased truck bearing registration No.HP-11-5305 which was financed by opposite parties in the year 2010. There is recital in affidavit that vehicle in question was financed by opposite parties for a sum of Rs.900000/- (Nine lac). There is further recital in affidavit that deponent already paid amount of Rs.421000/- (Four lac twenty one thousand) to opposite parties. There is further recital in affidavit that on
03.12.2013 when vehicle in question was approaching from Bagheri to Bagga opposite parties with the help of criminal elements took forcible possession of vehicle in question at place Shalughat. There is further recital in affidavit that driver of vehicle in question was beaten severely. There is further recital in affidavit that opposite parties committed deficiency in service and unfair trade practice. State Commission has carefully perused all annexures filed by complainant.
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9. Opposite parties filed affidavit of Sh. Prem Chand SPA holder of opposite parties in evidence. There is recital in affidavit that vehicle in question was used for commercial purpose. There is further recital in affidavit that complicated questions of facts are involved in present matter and complainant be relegated to civil court for adjudication of dispute. There is further 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.385477/- (Three lac eighty five thousand four hundred seventy seven). There is further recital in affidavit that total amount to the tune of Rs.1136960/- (Eleven lac thirty six thousand nine hundred sixty) including finance charges was sanctioned in favour of complainant vide loan agreement. There is further recital in affidavit that complainant was under legal obligation to pay loan amount in 35 (Thirty five) EMI of Rs.32485/- (Thirty two thousand four hundred eighty five). There is further recital in affidavit that complainant did not pay loan amount by way of installments as per agreement.
10. There is further recital in affidavit that vehicle in question was sold in higher consideration amount of Rs.500000/-(Five lac) in open market. There is further recital in affidavit that amount received after sale of vehicle in 6 Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019 question was adjusted in loan account of complainant. There is recital in affidavit that despite the sale of vehicle in question amount of Rs.385477/- (Three lac eighty five thousand four hundred seventy seven) is still due from complainant. State Commission has carefully perused all annexures filed by opposite parties.
11. Submission of learned Advocate appearing on behalf of complainant that Award passed by Arbitrator under Arbitration and Conciliation Act 1996 in favour of opposite parties is no Award in the eyes of law because it was passed ex-parte at Chennai which is far away from operation area of vehicle in question and on this ground appeal filed by complainant be allowed is decided accordingly. It is proved on record that Arbitrator namely Sh. S. Jayakumar has passed Award dated 29.04.2013 Annexure-R-4 against complainant under Arbitration and Conciliation Act 1996 qua vehicle in question. Arbitrator has specifically ordered that complainant and guarantors jointly and severally would pay a sum of Rs.385477/- (Three lac eighty five thousand four hundred seventy seven) alongwith interest @ 18% per annum from date of Award till actual payment. Arbitrator further ordered that in addition complainant and guarantors jointly and severally would pay arbitration costs to the tune of Rs.2500/-(Two thousand five hundred).
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12. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to pass subsequent order under Consumer Protection Act after passing of final Award by Arbitrator under Arbitration and Conciliation Act 1996. See 2018(1) CLT 312 NC titled M/s. Manas Constructions Versus L&T Finance Ltd. & others See 2018(4) CLT 400 SCDRC Chhattisgarh titled Branch Manager HDFC Bank Ltd. and others Versus Chandra Shekhar. See 2019(2) CLT 389 SCDRC Rajasthan titled Rameshwar Prasad Versus L&T Finance Ltd. and others. 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 2007(1) CPJ 34 NC titled Instalment Supply Ltd. Versus Kangra Ex-serviceman Transport Co. & Anr. See 2015 (2) CPR 306 NC titled Manjeet Singh Versus National Insurance Company.
13. Submission of learned Advocate appearing on behalf of complainant that Award was passed by Arbitrator under Arbitration and Conciliation Act 1996 at place Chennai which was out of 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 State 8 Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019 Consumer Commission is not Appellate Authority qua final Award passed by Arbitrator under Arbitration and Conciliation Act 1996. 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.
14. Submission of learned Advocate appearing on behalf of complainant that Award has been passed ex-parte and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that State Consumer Commission is not Appellate Authority qua final Award passed by Arbitrator under Arbitration and Conciliation Act 1996. State Commission is of the opinion that remedy available to complainant is to file appeal against Award passed by Arbitrator under Arbitration and Conciliation Act 1996 in accordance with law. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to pass subsequent order under Consumer Protection Act after passing of final Award under Arbitration and Conciliation Act 1996 in order to avoid conflicting orders of two Statutory Authorities. State Commission is of the opinion that conflicting orders of two Statutory Authorities will create anarchy in society.
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15. Submission of learned Advocate appearing on behalf of complainant that driver of vehicle in question was beaten by criminals engaged by opposite parties and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant did not file personal affidavit of driver of vehicle in question who is best eye witness. Plea of complainant that driver of vehicle in question was beaten is defeated on the concept of ipse dixit (An assertion made without proof). Medical certificate of driver of vehicle in question also not placed on record.
16. Submission of learned Advocate appearing on behalf of opposite parties that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and same does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that in view of Award already passed by Arbitrator under Arbitration and Conciliation Act 1996 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 subsequent order under Consumer Protection Act after passing of final Award under Arbitration and Conciliation Act 1996 because Consumer Authorities are not Appellate Authority under Arbitration and Conciliation Act 1996. Point No.1 is decided accordingly. 10
Sunita Devi Versus Hinduja Leyland Finance Ltd. & Ors. F.A. No.117/2019 Point No.2: Final Order
17. 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-R-4 passed by Shri S. Jayakumar Arbitrator Chennai under Arbitration and Conciliation Act 1996 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
18. 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. Functioning of State Commission remained non-operative during winter vacation w.e.f. 11.01.2020 to 23.02.2020 and functioning of State Commission also remained non-operative w.e.f. 24.03.2020 to 15.04.2020 due to Nation wide lock down on account of Corona virus. Hence present appeal is disposed of today. F.A.No.117/2019 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 27.05.2020 Manoj 11