State Consumer Disputes Redressal Commission
Cholamandalam M.S.Gen.Insurance ... vs Hem Singh & Anr. on 27 November, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/446
Instituted on : 20.06.2017
Cholamandalam General Insurance Company,
Mare House, 2nd Floor, NSC Bose Road,
Chennai
At present : 2nd Floor, Simran Tower,
In Front of L.I.C. Office, Pandri,
Raipur (C.G.) 492001 ..... Appellant (O.P. No.1)
Vs.
1. Hem Singh, S/o Tirath Singh,
Age 45 years,
R/o : Geedam Road,
Jagdalpur, District Bastar (C.G.) ..... Respondent No.1 (Complainant)
2. Cholamandalam Finance Company ,
Court Road, Above Axis Bank,
Jagdalpur, District Bastar (C.G.) ..... Respondent No.2 (O.P. No.2))
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Manoj Prasad, Advocate for the appellant (O.P. No.1).
Shri Shishir Bhandarkar, Advocate for the respondent No.1 (complainant).
None for the respondent No.2 (O.P. No.2)
ORDER
DATED : 27 /November/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 22.03.2017, passed by District Consumer Disputes Redressal Forum, Bastar, at Jagdalpur (C.G.) (henceforth "District Forum") in Complaint Case No. C.C./67/2016. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
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1. The complainant is entitled to get remaining amount from the O.P. No.1 towards compensation for vehicle bearing registration No.C.G.17-H-1279 after deducting a sum of Rs.2,50,000/- from Rs.7,10,000/-, which has been received by the complainant from O.P. No.2
2. On the above amount, 6% simple interest would be payable from the date of filing of the complaint.
3. The above amount would be payable by the O.P. No.1 to the complainant with 30 days from the date of order.
4. If the above amount is not paid within stipulated period, 6% simple interest would be payable.
5. The complainant is entitled to get a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony.
6. The cost of litigation is fixed at Rs.5,000/- (Rupees Five Thousand), which will be borne by the O.P. No.1 along with its cost of litigation.
2. Briefly stated the facts of the case are that the complainant got insured truck bearing registration No.C.G.17-H-1279 for Rs.7,20,000/- from O.P. No.1 through O.P. No.2. On 27.06.2009, the vehicle of the complainant met with an accident near R.T.O. office, Salur Ghat (Andhra Pradesh) and the vehicle was completely damaged. Intimation regarding the accident was given by the complainant to the OPs on the date of accident itself. The complainant has not received the compensation till today. The complainant filed complaint before Public Utility Lok Adalat, Jagdalpur. When the complainant received // 3 // notice from the Court of District Judge, then for the first time, the complainant came to know that the matter was referred to the Arbitrator by the O.P. No.2 and the Arbitrator passed the award at Chennai. The O.P. No.1 deposited the amount of Rs.2,50,000/- with the O.P. No.2 without giving prior intimation and without obtaining prior consent of the complainant. The O.P. No.2 filed Execution Application before the District Judge, Jagdalpur for recovery of the due amount, which was dismissed by the District Judge, Jagdalpur, then the O.P. No.2 filed Civil Revision before Hon'ble High Court of Chhattisgarh. Vide order dated 13.07.2016, the order of the District Judge was set aside and the matter is still pending before the District Judge, therefore, the complainant filed complaint before the District Forum against the OPs because they committed deficiency in service. The complainant is entitled to get the reliefs as prayed by him in the relief clause of the complaint.
3. The OPs have filed their written statement and pleaded that the complainant purchased the truck bearing registration No.C.G.17-H-12992 with the financial help of O.P. No.2 and hire purchase agreement was executed between the complainant and O.P. No.2, therefore, the ownership of the vehicle will remain lies with the O.P. No.2 untill and unless whole amount is paid by the complainant. The complainant has not paid the whole amount, therefore, the ownership of the vehicle remain lies with the O.P. No.2. The matter was referred to the Sole Arbitrator and the Sole Arbitrator passed the award against the complainant on 28.01.2011. According to the award passed by the Sole Arbitrator, the O.P. No.2 is // 4 // entitled to recover a sum of Rs.7,33,042/- from the complainant. The O.P. No.2 filed Execution Application before District Judge, Jagdalpur, which was dismissed by the District Judge, holding that the decree has not been received from Chennai on transfer. The O.P.No.2 filed Civil Revision No.142 of 2013 before Hon'ble High Court of Chhattisgarh and vide order dated 13.07.2013, the Hon'ble High Court of Chhattisgarh allowed the Civil Revision and set aside the order dated26.07.2013 passed by the District Judge and directed the District Judge to proceed with the execution of the award expeditiously, in accordance with law. The matter is still pending before the District Judge, Jagdalpur. To avoid the compliance of the award passed by the Sole Arbitrator, the complainant has filed instant complaint, therefore, the complaint is not maintainable and is liable to be dismissed with cost.
4. The complainant has filed documents. The documents are order dated 18.01.2016 passed by Permanent Lok Adalat, Bastar in Case NO.14/2014, application fid by the complainant before Permanent Lok Adalat, Bastar, reply dated 10.11.2015 filed by O.P. No.1 in respect of application filed by the complainant, affidavit of the complainant filed under Order 18 Rule 4 CPC, order dated 13.07.2016 passed by Hon'ble High Court of Chhattisgarh in Civil Revision No.142 of 2013, notice dated 23.11.2013 issued by Hon'ble High Court of Chhattisgarh to Cholamandalam Investment & Finance Company Ltd., application for revision u/s 115 of Civil Procedure Code, order dated 26.07.2013, application under Section 36 read with order 21 rule 11 of Civil Procedure Code for execution of award filed by petitioner, copy of arbitration award, Motor Insurance Claim // 5 // Intimation Cum Claim Form, Motor Loss Voucher, II, reminder dated 02.09.2009 sent by Cholamandalam MS General Insurance Co. Ltd. to the complainant, Estimate of repairing given by Laxmi Motor Body Builders for vehicle bearing registration N.C.G.17-H-1279, Quotation given by Rajpreet Automobiles for vehicle bearing registration No.C.G.17-H-1279, letter dated 25.09.2009 sent by Shri N. Ramesh, Motor Vehicles Inspector, Salur to the Station House Officer, Salur Town, letter sent by Sub Inspector of Police, Salur Town PS to the Motor Vehicle Inspector, Salur, Motor Spot Survey Report dated 15.09.2009 of Shri K. Rama Naidu, Insurance Surveyor and Loss Assessor, Survey Bill dated 15.09.2009 issued by Shri K. Rama Naidu, Schedule Motor Policy, Premium Computation Table, Certificate of Insurance, receipt dated 30.04.2009, receipt dated 28.05.2009, receipt dated 30.08.2009, letter dated 08.04.2009 sent by Cholamandalam DBS Finance Ltd. to the complainant, Certificate of Insurance issued by Cholamandalam MS General Insurance Co. Ltd., Statement of Account, First Information Report, letter sent by the complainant to Cholamandalam General Insurance Co. Ltd., Regional Head Office, Branch Office Chennai, Motor Insurance Cover Note, affidavit dated 05.02.2010 of the complainant, letter dated 11.03.2010 sent by the complainant to Manager, Cholamandalam DBS Finance Company Ltd., Jagdalapur, First Information Report, Intimation of Accident and Injuries to Police, summon sent by J.M.F.C. Raipur to the complainant under Section 138, Criminal complaint under 138 and R/W Section 142 of the Negotiable Instrument Act, 1881 filed by Cholamandalam Investment and Finance Co. Ltd. before J.M.F.C. Raipur against the complainant, award dated 22.07.2011 passed by the Sole Arbitrator in Arbitrator Case No.044/11, photographs of // 6 // the vehicle award dated 22.07.2011 passed by the Sole Arbitrator in Arbitrator Case No.044/11, photographs of the vehicle, permit for tourism and national permit. etc.
5. Learned District Forum, after having considered the material placed before it, has partly allowed the complainant and directed the O.P. No.1 to pay the amounts to the complainant, as mentioned in the para one of this order.
6. Shri Manoj Prasad, learned counsel appearing for the appellant (O.P. No.1) has argued that the appellant (O.P. No.1) is an Insurance Company and the respondent No.2 (O.P. No.2) is a Finance Company and both the Companies are different entities. The appellant (O.P.No.1) has not filed written statement before the District Forum. The vehicle in question met with an accident on 27.06.2009. The respondent No.1 (complainant) filed a complaint before Pubic Utiliy Lok Adalat against the OPs, which was dismissed vide order dated 18.01.2016 on the basis of the judgment dated 03.11.2015 passed by Hon'ble High Court in Writ Petition (227) No.131 of 2015 Branch Manager, National Insurance Co. Ltd. Vs. Upendra Kumar Narvas, with a direction to file complaint before competent Court/Tribunal having jurisdiction. The respondent No.2 (O.P. No.2) had already referred the matter to the Arbitrator and the Arbitrator passed award before filing the complaint and the respondent No.2 (O.P. No.2) filed Execution Application before the District Judge, Jagdalpur, which was dismissed by the District Judge, then the respondent No.2 (O.P. No.2) filed Civil Revision No.142 of 2013 before Hon'ble High Court of Chhattisgarh and vide order dated // 7 // 13.07.2016, Hon'ble High Court of Chhattisgarh allowed the Civil Revision and set aside the order dated 26.07.2013 and directed the District Judge, Jagdalpur to proceed with the execution of the award expeditiously, in accordance with law. It appears that the matter is still pending before competent Court, and award was passed by the Sole Arbitrator on 22.07.2011, whereas the instant complaint has been filed on 30.08.2016, therefore, the complaint is barred by time and is not maintainable. He placed reliance on Appeal No.FA/2017/280 - Smt. Jagauti Bai Vs. Managr, Head Office, Royal Sundaram Allianz Insurance Co. Ltd. and Another, decided by this Commission on 24.07.2017, Appeal No.FA/2016/142 - Royal Sundaram Allianz Insurance Co. Ltd. Vs. Akhilesh Lal, decided by this Commission vide order dated 05.07.2016, Appeal No.FA/2015/520 The Oriental Insurance Co. Ltd. Vs. Khurshid Ansari, decided by this Commission vide order dated 11.02.2016 and Appeal No.FA/2016/309 - Manager, Bajaj Allianz General Insurance Co. Ltd. Vs. Smt. Ranju Devi Bawankar and another decided by this Commission vide order dated 18.10.2016.
7. Shri Shishir Bhandarkar, learned counsel for the respondent No.1 (complainant) has argued that written statement has been filed by both the OPs, therefore, the appellant (O.P. No.1) cannot raise objection at the appellate stage that the objection has not been raised with the consent of the appellant (O.P. No.1). The vehicle in question was insured with the appellant (O.P. No.1) and the vehicle met with an accident on 27.06.2009. The intimation regarding the accident was given to the appellant (O.P. No.1). The appellant (O.P. No.1) without giving prior intimation and without // 8 // obtaining consent of the respondent No.1 (complainant) paid the amount of Rs.2,50,000/- to the respondent No.2 (O.P. No.2). Notice of the arbitration proceedings has not been received by the respondent No.1 (complainant). The arbitration matter is between the respondent No.1 (complainant) and respondent No.2 (O.P. No.2). The appellant (O.P. No.1) is an Insurance Company and the vehicle in question was insured with the appellant (O.P.No.1) at the time of accident, therefore, the appellant (O.P. No.1) is liable to indemnify the respondent No.1 (complainant). The appellant (O.P. No.1) did not give any prior intimation and did not obtain consent for depositing the amount of Rs.2,50,000/- with the respondent No.2 (O.P. No.2). When the respondent No.1 (complainant) received notice from the District Judge, Jagdalpur in the Execution Case, then only he could know regarding he arbitration proceedings. The High Court of Chhattisgarh ,allowed Civil Revision of the respondent No.2 (O.P. No.2) and set aside the order of the District Judge, Jagdalpur, then the respondent No.1 (complainant) filed instant complaint, therefore, the instant complaint is within limitation. 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 appellant (O.P. No.1) may be dismissed.
8. None appeared for the respondent No.2 (O.P. No.2) inspite of service of notice, when the case was fixed for final hearing on 20.11.2017.
9. We have heard learned counsels appearing for the parties and have also perused the record of the District Forum, as well as the impugned order.
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10. The respondent No.1(complainant) himself pleaded that the respondent No.2 (O.P. No.2) filed Execution Application before the District Judge, Jagdalpur for execution of the award passed by the Sole Arbitrator. The respondent No.2 (O.P. No.2) has filed copy of award dated 22nd July, 2011 passed by Sole Arbitrator Mr..V.K. Thirunavukkarasu in Arbitration Case No.044/11 between M/s. Cholamandalam Investment & Finance Co. Ltd. Vs. Mr. Hem Singh. The arbitration proceedings has been initiated by the claimant (O.P. No.2) for recovery of a sum of Rs.7,33,042/- from the respondent No.1 (complainant) with interest @ 36% p.a. In the arbitral award it is mentioned that none present for the respondents (borrower & guarantors). The Sole Arbitrator passed award directing the respondents No.1 & 2 (borrower and guarantors) are liable to pay a sum of Rs.7,33,042/- to the claimants (O.P. No.2) together with interest @ 18% p.a. from 28.01.2011 till the date of realization .
11. It appears that the award was passed by the Sole Arbitrator on 22.07.2011. The respondent No.2 (O.P. No.2) filed Execution Application before District Judge, Jagdalpur. The District Judge, Jagdalpur vide order dated 26.07.2013 dismissed the execution application filed by the respondent No.2 (O.P. No.2) holding that the decree has not been transferred by the competent Court of Chennai, having jurisdiction in the matter to the Court of Jagdalpur (C.G.). for execution of the award. Against the said order, the respondent No.2 (O.P. No.2) filed Civil Revision No.142 of 2013 before Hon'ble High Court of Chhattisgarh and vide order dated 13.07.2016, Hon'ble High Court of Chhattisgarh allowed the Civil Revision Petition and set aside // 10 // the order passed by the District Judge, Jagdalpur, and directed the District Judge to proceed with the execution of the award expeditiously, in accordance with law. Then, the respondent No.1 (complainant) filed the instant complaint on 30.08.2016.
12. The respondent No.1 (complainant) has raised an objection that the appellant (O.P. No.1) deposited a sum of Rs.2,50,000/- with the respondent No.2 (O.P. No.2) without obtaining his consent and without giving and prior intimation to him. It is admitted fact that the respondent No.1 (complainant) purchased the vehicle bearing registration No.C.G.-17-H-1279 with the financial help of respondent No.2 (O.P. No.2) and the complainant executed a loan agreement with the respondent No.2 (O.P. No.2), therefore, the ownership of the vehicle remains lies with the respondent No.2 (O.P. No.2). The appellant (O.P. No.1) is insurer and the appellant (O.P. No.1) paid the amount of Rs.2,50,000/- to the respondent No.2 (O.P. No.2). The respondent No.1 (complainant) did not plead that as to when the appellant (O.P. No.1) paid amount of Rs.2,50,000/- to the respondent No.2 (O.P. No.2). According to the respondent No.1 (complainant), the accident took place on 27.06.2009. The appellant (O.P. No.1) filed Motor Spot Survey Report dated 15.09.2009 of K. Rama Naidu, Insurance Surveyor and Loss Assessor. It appears that the amount of Rs.2,50,000/- was paid by the appellant (O.P. No.1) to the respondent No.2 (O.P. No.2) in the year 2009 or in the beginning of year 2010, whereas the respondent No.1 (complainant) filed complaint before Public Utility Lok Adalat in the year 2014 which was dismissed vide order dated 18.01.2016 on the basis of the judgment dated 03.11.2015 passed by Hon'ble // 11 // High Court in Writ Petition (227) No.131 of 2015 Branch Manager, National Insurance Co. Ltd. Vs. Upendra Kumar Narvas, with a direction to file complaint before competent Court/Tribunal having jurisdiction. Thereafter the respondent No.1 (complainant) filed instant complaint on 30.08.2016.
13. The respondent No.1 (complainant) has not filed any documents to prove that as to when the appellant (O.P. No.1) paid a sum of Rs.2,50,000/- to the respondent No.2 (O.P. No.2) and when the respondent No.1 (complainant) sent his objection or raised objection before the appellant (O.P. No.1). Therefore, the cause of action was accrued on the date when accident occurred. The instant complaint is apparently barred by time.
14. The matter was also referred by the respondent No.2 (O.P. No.2) to the Sole Arbitrator and the Sole Arbitrator passed award on 22.11.2011. The O.P. No.2 filed Execution Application before the District Judge, which was dismissed by the District. The respondent No.2 (O.P. No.2) filed Civil Revision No.142 of 2013 before Hon'ble High Court of Chhattisgarh. Vide order dated 13.07.2016, Hon'ble High Court of Chhattisgarh allowed the Civil Revision Petition and set aside the order passed by the District Judge, Jagdalpur, and directed the District Judge to proceed with the execution of the award expeditiously, in accordance with law. The Execution Case is still pending before District Judge, Jagdalpur, therefore, the District Forum, has no jurisdiction to entertain the complaint.
15. In Chandresh Kumar Vs. Kotak Mahendra Bank Ltd. I (2017) CPJ 121 (NC), Hon'ble National Commission has observed thus :-
// 12 // "6. ...... In our opinion, the complainant / petitioner having invoked the jurisdiction of the Civil Court and having not challenged the order of the said Court referring the parties to arbitration, he could not have filed a consumer complaint, challenging the legality of the repossession of the vehicle by the bank. Though, the remedy provided to a consumer under the provisions of the Consumer Protect Act, 1986 is an additional remedy, the complainant / petitioner having himself chosen to approach the Civil Court instead of filing a consumer complaint in the first instance, he could not have filed a consumer complaint after the Civil Court had referred the parties to arbitration in accordance with the arbitration clause contained in the agreement between them. The consumer complaint, therefore, was clearly not maintainable, in the aforesaid facts and circumstances."
16. In Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Another, 2017 (2) CPR 277 (NC), Hon'ble National Commission has observed thus :-
"10. ...................... Section 3 of the Consumer Protect Act, 1986 states that the provisions of Consumer Protection Act, 1986 shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, it is clear that the provisions of the Consumer Protection Act, 1986 cannot be used in derogation of The Arbitration and Reconciliation Act, 1996. Remedy under Consumer Protection Act, 1986 is an additional remedy if the main remedy under the concerned Act has not been taken. In the present case, it was made known to the petitioner / complainant that the remedy under the Arbitration and Reconciliation Act, 1996 was already taken up by OP-1 as per the provisions of the Agreement, therefore, the proceedings under the Consumer Protection Act, 1986 could not have been taken as an alternative remedy................."
17. In T. Srinivas & Anr. Vs. Srija Constructions, I (2016) CPJ 552 (NC), Hon'ble National Commission has observed thus :-
// 13 // "10. .... This Commission in Beverly Park Maintenance Services Ltd.
v. Kashmir Fab Styles Pvt. Ltd., II (2014) CPJ 109 (NC) = Revision Petition No.2064 of 2012 decided on 13.3.2014 has observed :
"7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned Counsel for the respondent submitted that Section 3, Consumer Protection Act enables complainant to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned Counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad v. The New India Assurance Company Limited held that when a case is pending in a Court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action.
8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both the proceedings may go simultaneously . The words 'in addition' appearing in Section 3, C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other Forum."
18. In Magma Fincorp Limited Vs. Gulzar Ali, II (2016) CPJ 231 (NC), Hon'ble National Commission has observed thus :-
"12. It may be mentioned here that as per the agreement entered into between the parties, it was stipulated that in the case of dispute between the parties, the matter could not be referred to an Arbitrator. It is well settled that terms and conditions of the agreement to this effect do not bar // 14 // jurisdiction of the Consumer Fora but when the parties opt to proceed, first of all, before the Arbitrator, in that event, the jurisdiction of this Commission stand barred. It is settled Law that the Consumer Fora cannot question the award. It has no power to set aside the award or decree passed by the Civil Court. If this power is given to the Consumer Fora, this will lead to contradictory judgments as has been done in this case. The order passed by the Fora below in this case is not legally tenable."
19. In Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd. II (2014) CPJ 109 (NC), Hon'ble National Commission, has observed that "Once respondent participated in proceedings before arbitrator for same relief, proceedings for similar relief could not have been initiated before State Commission."
20. Therefore, the impugned order dated 22.03.2017, passed by the District Forum, erroneous and is not sustainable in eye of law and the same is liable to be set aside.
21. Hence, the appeal filed by the appellant (O.P. No.1) is allowed and the impugned order dated 22.03.2017, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent No.1 (complainant), shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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