State Consumer Disputes Redressal Commission
The Branch Manager, M/S. Sriram ... vs Mr. Mahesh Sahani on 30 June, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/22/2014 (Arisen out of Order Dated 30/12/2013 in Case No. Complaint Case No. CC/157/2013 of District Burdwan) 1. The Branch Manager, M/s. Sriram Transport Finance Co. Ltd. 1st floor, Krishna Bhaban (opp. of Charu Chandra Petrol Pump), G.T. Road, Baburbag, P.O. & Dist. Burdwan, Pin - 713 104. 2. M/s. Sriram Transport Finance Co. Ltd. 2nd floor, Mokambika Complex, 4 Lady Desika Road, Mylapore, Chennai - 600 004. ...........Appellant(s) Versus 1. Mr. Mahesh Sahani Lakshmipur Math, College More (near Hanumanji Mandir), Burdwan -713 101. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Petitioner: Mr. Barun Prasad Mr. Subrata Mondal Mr. Sovanlal Bera , Advocate For the Respondent: Ms. Sunita Guha, Advocate ORDER
Date: 30-06-2015 Sri Debasis Bhattacharya The instant revision arises over the Order dated 30-12-2013 in C.C. No. 157/2013, passed by the Ld. District Forum, Burdwan whereof maintainability petition of the OPs has been rejected. Being aggrieved by and dissatisfied with the same, the OPs thereof have preferred this revision.
By such revision petition, it is stated by the Revisionists that the OP of this instant revision moved a consumer case against them before the Ld. District Forum seeking some unjustified relief against them. After receiving notice, they appeared before the Ld. District Forum and filed a petition challenging maintainability of the instant case. But, the Ld. District Forum, after hearing both sides, rejected such petition out of erroneous appreciation of actual facts and circumstances of the case. Hence, the instant revision.
We are to consider in this revision whether the impugned order warrants our intervention for some legal and/or factual incongruity, if any.
Decision with reasons Ld. Advocate for the Revisionists has stated that they moved a maintainability petition before the Ld. District Forum on the ground that the OP of the instant revision petition is the owner of another truck bearing no. WB-41B-5241 besides the disputed vehicle No. WB-37B-0857 and both the vehicles run for commercial activities for earning profit. Therefore, he cannot be construed as a Consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. Moreover, the OP of instant revision has defaulted in making payment of EMIs in respect of the disputed vehicle no. WB-37B-0857 for which the said vehicle was repossessed after complying with the due formalities as enumerated in the Loan-cum-Hypothecation Agreement by and between the parties. Subsequently, the said vehicle was sold through auction and proceeds thereof was adjusted against the outstanding amount. However, even after adjustment since there was a due of Rs. 2,21,253/-, the OP of instant revision was asked to repay the same. However, as he did not pay heed to the notice of the present Revisionist, an arbitration proceeding was initiated before the Ld. Arbitrator, Mr. Pulin Behari Das and vide letter dated 15-09-2013 the said Arbitrator was appointed. After knowing of such appointment, the OP of the instant revision filed the instant complaint petition before the Ld. District Forum on 26-07-2013. Since the arbitration proceeding was initiated before filing of the instant complaint case, the latter is not maintainable and accordingly an objection was raised before the Ld. District Forum. However, the Ld. District Forum, without appreciation of the actual facts and circumstances of the case, rejected their petition, which has caused great prejudice to the Revisionist, hence the instant revision. In support of his contention, the Ld. Advocate has referred to a decision of the Hon'ble National Commission reported in 2014 (2) CPR 207 (NC).
Ld. Advocate for the OP/Complainant, on the other hand, has submitted that there is no infirmity in moving the instant revision petition. The impugned order is a speaking and just order which be upheld in the interest of justice.
It is alleged by the Revisionists that the OP/Complainant is the registered owner of another truck bearing no. WB-41B-5241. However, the Revisionist has not placed on record any cogent documentary proof to substantiate their contention. It is the basic tenet of law that mere allegation does not suffice; it is the immaculate cogent documentary evidence that holds the key and is relied upon by a Court of Law to firm up its decision. Needless to say, therefore, the allegation of the Revisionist being not backed by any corroborative document is not tenable.
The Revisionists have also questioned the maintainability of the instant complaint case on the ground that an Arbitrator has been appointed prior to initiation of the instant complaint case. However, the Revisionist has failed to adduce any evidence/proof to show that the Complainant had any prior knowledge about appointment of Mr. Pulin Behari Das as Arbitrator, and/or that he submitted himself to the arbitral proceeding and participated in it before initiation of his complaint case at the Ld. District Forum. Therefore, we do not deem it proper to attribute any mala fide intention on the part of the Complainant behind filing of the instant complaint petition before the Ld. District Forum.
From the photocopy of arbitration petition, it is observed that the same has been initiated by offices of the present Revisionists situated at different addresses vis-à-vis address of the present Revisionists and moreover, in addition to the Complainant of the instant consumer case, it was instituted against two other persons. So, it can safely be inferred that parties to both the proceedings are not same. Also important to note that the complainant case has been filed against the notice of the Revisionists dated 03-07-2013; whereas, it transpires from the photocopy of the claim petition filed before the Arbitral Tribunal that the cause of action originated over a notice purported to have been issued by the Revisionists' company on 04-07-2013. That apart, there is nothing on record to suggest that the Ld. Arbitrator initiated arbitration proceedings and issued necessary letter for this purpose prior to filing of the complaint case before the Ld. District Forum by the Complainant. Also, as noted earlier, there is nothing to suggest that the Complainant appeared and submitted himself before the said Ld. Arbitrator and filed reply against the claim of the Revisionist.
On going through the observation of the Hon'ble National Commission, referred to by the Revisionists, we find that the Hon'ble Commission opined that two proceedings for similar relief cannot run simultaneously, which is not the case here. Therefore, the same has got no bearing in the present case.
Furthermore, it appears, Sec. 3 of the Consumer Protection Act, 1986 does not imply that rights created under the Act can be curtailed on the ground of pendency of other proceedings, viz., Arbitration proceedings.
In this regard, some of the relevant observations of the Hon'ble Supreme Court are worth mentioning.
In the case of Satpal Mohindra vs. Surindra Timber Stores, (1999) 5 SCC 696, the Hon'ble Court has observed that -
"After perusing the record, we find that whereas the appellant had filed the complaint on 21-5-1994 seeking damages, the suit was filed by the respondent much later in the civil court claiming the price of the material supplied by it. Under these circumstances, the State Forum was not justified in dismissing the appeal filed by the appellant without recording any finding on the merits of the appeal because the filing of the suit by the respondent during the pendency of the proceedings before the Consumer Forum for a different type of relief could not oust the jurisdiction of the Consumer Forum. The order of the State Forum dated 14-10-1996 is completely erroneous. It cannot be sustained. We, accordingly accept this appeal and set aside the order of the State Forum dated 14-10-1996 as well as that of the National Forum dated 21- 7-1998. We remand the appeal to the State Forum for its disposal on merits in accordance with law. The State Forum shall dispose of the appeal expeditiously."
In Fair Air Engineers Pvt. Ltd. and Anr. v. N.K. Modi, (1996) 6 SCC 385, the Hon'ble Court has observed that -
"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 CPC. Thereby, as seen, Section 34 of the Act does not confer an 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 Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act"
A plain reading between the lines of the above observations of the Hon'ble Court makes no bones about the fact that as per Section 3 of the Act, the provisions of the Act are in addition to and not in derogation of any other provision of any other law for the time being in force. Having due regard to the scheme of the Act and the purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies.
It is also pertinent to mention that alleged proceedings before the Arbitral Tribunal and the Consumer Forum have been initiated by two independent parties seeking completely different reliefs. Therefore, even if it is assumed that an arbitration proceeding has been initiated by the present Revisionists against the Complainant, in our considered view, there is no bar for the OP/Complainant to proceed with the instant complaint case. That being the position, we see no infirmity in the order of the Learned District Forum and consequently, refrain from interfering with the same.
The instant revision is, therefore, dismissed on contest against the OP/Complainant, but without any order as to costs. The impugned order is hereby affirmed. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER