State Consumer Disputes Redressal Commission
M/S Sundaram Finance Ltd., vs Mr.Amareswara Rao S/O Late M.Doraswamy ... on 29 November, 2011
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD R.P. No.33 OF 2011 AGAINST I.A.NO.45 OF 2011 IN C.C.NO.14 OF 2011 DISTRICT FORUM CHITTOOR Between M/s Sundaram Finance Ltd., Rep. by its Assistant Manager-Legal Sri A.Srikrishna S/o A.Bhaskar Rao aged 37 years Revision Petitioner/Petitioner A N D 1. Mr.Amareswara Rao S/o late M.Doraswamy Naidu aged about 50 yrs, R/o D.No.2/734/3, Santhinagar Colony Kongareddipalle Chittoor Town & District 2. Mr.G.Sudhakar Rao Lorry Owner R/o Vijayawada Respondent/respondent Counsel for the petitioner Sri Prabhakar Sripada Counsel for the respondents None QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SMT M.SHREESHA, HONBLE MEMBER WEDNESDAY THE TWENTY NINETH DAY OF NOVEMBER TWO THOUSAND ELEVEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. This revision petition is filed by the opposite party on the premise that the complainant cannot seek for compensation without questioning the correctness of the repossession of the vehicle and that the complaint is not filed within the period of limitation as also that arbitration proceedings are initiated and the complainant without attending the arbitration proceedings has invoked the jurisdiction of the District Forum.
2. The District Forum has passed the order that the complaint was filed in regard to the hypothecation of the vehicle and sale of the vehicle by the revision petitioner without notice to the complainant.
3. No documents have been filed on either side.
4. The point for consideration is whether the revision petitioner is entitled to the relief sought for?
5. The revision petitioner who is the opposite party no.2 in the complaint is the financier. The complainant had purchased the vehicle on finance extended by the revision petitioner. According to the revision petitioner, the complainant has committed default in payment of instalments from the 14th instalment whereof the petitioner company has repossessed the vehicle on 4.11.2006. The complainant has filed the complaint seeking direction to the revision petitioner herein to pay the cost of the vehicle, cost of the repairs etc.
6. During the pendency of the complainant the revision petitioner has filed the petition seeking reference of the matter to the arbitrator in view of the arbitration clause in the agreement.
7. The learned counsel for the revision petitioner has submitted that the agreement contains clause under Article 22 that all disputes between the parties arising under the agreement have to be settled by arbitration. It is true a perusal of the agreement shows that an arbitration clause is there making it mandatory for the parties to refer the matter pending before a court to the arbitrator.
8. The learned counsel for the revision petitioner relied upon the decisions of the National Commission in Shiela Kumari Vs Tata Engineering and Locomotive Co., II (2007) CPJ 92 wherein it was held that repossession of the vehicle by the financier on breach of terms of the hire purchase agreement would not amount to deficiency of service on the part of the finance company. The learned counsel for the revisioner petitioner relied upon the decision of the National Commission in Manager Saint Marys Hire Purchase Pvt Ltd., Vs NA Jose III (1995) CPJ 58. In that case on default committed by the borrower, it was held that the agreement gives right to the financier to recover possession of the vehicle. These two decisions relied upon by the counsel for the revision petitioner have no bearing on the facts of the instant revision petition.
9. In Fair Air Engineers Pvt. Ltd. Vs. N.K. Modi (1996) 6 SCC 385 rejecting the contentions of the opposite party that the proceedings under the Consumer Protection Act, 1986 could not continue in view of the Arbitration Clause in the agreement entered into between the parties, Supreme Court observed as under:
It must be held that 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 provisions 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.
10. This judgment of the Supreme Court has been followed in a number of subsequent cases. Similarly, Supreme Court in Indochem Electronic and Another Vs. Additional Collector of Customs, A.P. reported in (2006) 3 SCC 721 , Secretary, Thirumurugan Cooperative Agricultural Credit Society reported in (2004) 1 SCC 305, CCI Chambers Coop. Hsg. Society Ltd. reported in (2003) 7 SCC 233 and State of Karnataka Vs. Vishwabharthi House Building Coop. Society and Others reported in (2003) 2 SCC 412, has held that Consumer Protection Act, 1986 seeks to provide remedy in addition to the remedy provided under other Acts.
11. In W.P. No. 4205/2008 the High Court of A.P. has considered all these decisions and opined that :
Having regard to the interpretation given by the Supreme Court in FAIR AIR ENGINEERS PVT. LTD with regard to Section 3 of the 1986 Act and the ratio in LUCKNOW DEVELOPMENT AUTHORITY, I am of the view that the 1986 Act, being a special enactment, which created an additional remedy in favour of the consumers by raising consumer disputes before the Fora constituted under the said Act, Section 8 of the 1996 Act does not have the effect of taking away such a remedy from the consumers as in the case of civil suits, which are in the nature of common law remedies. To my mind, the true purport of Section 3 of the 1986 Act is that if a party chooses to avail a remedy other than the consumer dispute, he shall be free to do so because the remedy under the 1986 Act is not in derogation of the other remedies available to such a party. But, conversely if he chooses to avail the remedy before the Consumer Fora, such a right cannot be denied to him on the ground of availability of an alternative remedy, such as arbitration. Put it briefly, Section 3 of the 1986 Act is intended to provide an additional remedy to a party and the same is not meant to deny such a remedy to him. In this view of the matter, in my opinion, the order passed by the District Forum does not suffer from any legal infirmity and it cannot be said that the District Forum has inherent lack of jurisdiction to entertain and adjudicate the complaint.
12. Coming to the question of jurisdiction, admittedly the petitioner/opposite party has been engaged in finance activity. It comes under Service as defined u/s 2(1)(o) of the Consumer Protection Act which reads as follows :
(o) "service"
means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
13. By virtue of Section 2(1)(o) of the Consumer Protection Act the complainants are undoubtedly entitled to prosecute this case before the District Forum. We do not see any merits in the petition.
14. In the result the petition is dismissed. No costs.
MEMBER MEMBER Dt.29.11.2011 KMK*