(Delivered on  18 /11/2021)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Petitioners/ O.Ps - Tata Capital Financial Services Ltd.  have preferred the present  Revision Petition  challenging  the order dated 16/07/2021 passed by the  learned District Consumer  Commission , Nagpur in Consumer Complaint No. CC/297/2021 by which  the application filed by the respondent /complainant  for directing  the O.P./petitioner  not to sell the truck of the complainant and  accept  Rs. 20,000/- came to be allowed.  (Petitioner hereinafter shall be referred as O.P. and respondent as complainant for the sake of convenience)

2.         Short facts leading to the filing of the present petition may be narrated as under:-

            Complainant –  MR. Dalbirsingh Kartarsingh Padda had purchased  one truck bearing No.  CG-04/JD-8413 by taking loan of Rs. 20,00,000/- from the O.P Nos. 1&2. The complainant  had also  agreed to repay the loan amount in  installment of Rs. 45,895/- for 57 months and amount was to be repaid  in 57 months during the period  from 03/07/2014 to 03/03/2019. The complainant  has alleged that  he has repaid  the entire  loan amount on 03/03/2019 and after  repayment  of the  loan amount the complainant  had asked  for No Objection Certificate from  the O.P.Nos. 1&2 but the O.P.Nos. 1&2 avoided to hand over the No Objection Certificate.  The complainant has further alleged that though he was in possession of the truck bearing No. CG-04/JD-8413 suddenly on 05/06/2021 the O.P.Nos. 1&2 seized the truck owned by the complainant which was parked in the MIDC Yard in an arbitrary and   high  hand manner.  The complainant  has alleged that  due to  loss of the truck he has not only  suffered monetary loss    but he has  losst his  only source of livelihood. The complainant  has further alleged that   action of O.P.Nos. 1&2 of seizing the truck  has also caused   immense   mental  and physical  harassment  to him.  Complainant has contended that  no notice was issued to him before seizing the truck. The complainant  therefore  has alleged  that  there was   deficiency in service on the part of the O.P.Nos. 1&2 and so the complaint.

3.         After filing  of the  complaint  the O.P.Nos. 1&2 also  appeared  in the matter and filed their written statement. During the pendency  of the Consumer Complaint, the complainant  has also filed an application for directing to   the O.P. Nos. 1&2 to hand  over the truck bearing No. CG-04/JD-8413 and not the  sell  the same. The learned District Consumer Commission, Nagpur  went through  the application  filed by the complainant  and after hearing allowed the application and passed impugned order dated 16/07/2021  and restrained the O.P. Nos. 1&2 from selling the truck bearing No. CG-04/JD-8413 on payment of Rs. 20,000/- by the complainant.  Aggrieved by the said order  dated 16/07/2021 passed by the  learned District Consumer Commission, Nagpur, the present  O.P./ petitioner had come up in  revision  petition.

4.         After filing of the revision petition notices came to be  issued to the respondent/ complainant  and respondent/complainant   has duly  appeared through  advocate.

5.         I have heard Mr. Patait, learned advocate for the petitioners /O.P. Nos. 1&2 and Mr. A.T. Sawal, learned advocate for the respondent /complainant.  Mr. Patait, learned advocate for the petitioner has challenged the impugned order dated 16/07/2021 on several grounds and  I will deal with them one by one.

6.         At the outset  it is submitted  by the learned advocate for the  petitioner  that  the learned District Consumer Commission, Nagpur has not properly  applied   its mind to the contentions raised as well as  to the material placed  on record. It is submitted by Mr. Patait, learned advocate for the petitioner that  the learned District Consumer Commission, Nagpur has not taken in to consideration  the fact that  the respondent /complainant  had not  only   paid the entire  loan amount and in fact huge amount of Rs. 1,70,423=55 was still outstanding  against the present respondent/complainant but the learned District Consumer Commission, Nagpur has erroneously  directed the  complainant  to deposit  the sum of Rs. 20,000/- which   was a very meager   amount in comparison  to  the amount outstanding against the  present  respondent /complainant.  In order to support this  contention  Mr. Patait, learned advocate for the petitioner has drawn  my attention  to the various  documents  on record  and in particular  the copy  of Loan Account of respondent/ complainant – Mr. Dalbirsingh Padda. Mr. Patait, learned advocate for the petitioner has submitted that amount of  Rs.1,70,423=55  was due and  recoverable  from  the respondent/   complainant and the copy of the Loan Statement  also reflects the same.  Mr. A.T. Sawal, learned advocate for the respondent /complainant has strongly rebutted this contention and has submitted that he has already deposited and repaid the entire loan amount. Mr.  A.T. Sawal, learned advocate for the  respondent /complainant has fairly  submitted  at the  bar that  even  assuming  that  any amount was outstanding  against  the respondent, the respondent  is ready  and willing  to deposit  the same.  During the course of hearing Mr. A.T. Sawal, learned advocate for the  respondent /complainant  has also filed  a pursis stating  that the respondent /complainant  has already  deposited   not only the amount of Rs. 20,000/- but  also remaining  balance amount  of Rs. 1,50,393=55 on 26/10/2021 by way of demand draft but I will deal with this aspect later.

7.         Secondly, Mr. Patait, learned advocate for the petitioner  has also  argued  that the present  complaint  instituted by the respondent /complainant  was  itself  was not  maintainable  since the present  respondent /complainant  was not at all  Consumer  as he was a owner of more than two trucks. Mr. A.T. Sawal, learned advocate for the respondent / complainant has strongly rebutted this contention and has submitted that he had purchased the truck in question for his self employment and the same was only source of livelihood for him. Mr. A.T. Sawal, learned advocate for the respondent/  complainant   has further  contended that  the petitioners have arbitrarily seized  his truck  without  giving  any prior notice to him and despite the fact that he had paid the loan amount and was also willing  to pay the balance, if any.    During the course of argument Mr. Patait, learned advocate for the petitioner has heavily relied upon one judgment delivered by the Hon’ble  Supreme Court in the case of Laxmi Engineering  Works Vs. P.S.G.  Industrial  Institute, reported in 1995 0 Supreme(SC)502. In this judgment  the Hon’ble Supreme Court has elaborately  dealt with  several  provisions  of the Consumer Protection Act, 1986 and has also  observed  in para No. 12 that the person who purchased his  auto-rickshaw to ply himself  for earning  his  livelihood  will be a Consumer. Similarly, the purchaser of truck who purchased it for plying as public carrier by himself would be a Consumer. As against this a person who purchased his car to be plied or operated exclusively  by another  person  will  not be a Consumer. Here also the petitioner  has taken  a plea that  the  complainant  had not purchased  the truck for  plying  himself  and in fact was  owner  of one more truck.  But I find that no such documents are placed on record by the petitioner to support this contention. On the other hand, the respondent /complainant has categorically stated that  he had purchased  the truck for self employment. As such case of Laxmi Engineering  Works Vs. P.S.G.  Industrial  Institute(cited supra)  on which reliance  is placed  by the petitioner  will not go to help the petitioner’s case. Even otherwise this aspect can be dealt with by the learned District Consumer Commission, Nagpur only on merits and not while  deciding the present  Revision Petition. 

8.         It is submitted  by Mr. Patait, learned advocate for the petitioner  that the present  complaint is  also not maintainable  as  in this matter  Arbitration  award was already  passed  long  back and therefore  it was not open  to the respondent /complainant  to file a complaint  under the Consumer Protection Act,1986 which was  not tenable  at all. Mr. Patait, learned advocate for the petitioner has also drawn my attention specifically to the copy of Arbitration award passed by the sole Arbitrator and I have gone through the same.  It is submitted by Mr. Patait, learned advocate for the petitioner that the learned District Consumer Commission, Nagpur has erroneously not considered this aspect. In this regard Mr. Patait, learned advocate for the respondent /complainant has heavily relied upon various judgments. At the outset Mr. Patait, learned advocate for the petitioner has relied upon judgment delivered by the Hon’ble National Commission in  the case of The Installment  Supply  Ltd.  Vs. Kangra Ex-Serviceman Transport  Co. & another , reported in  2006 (3) CPR 339(NC). On the basis of this judgment  it  is submitted  by Mr. Patait  learned advocate for the petitioner  that  once Arbitration  award is already  passed  the complaint  under the Consumer Protection Act, 1986 would not be tenable  in law. I have therefore  carefully  gone through  this judgment  in the case of The Installment  Supply  Ltd.  Vs. Kangra Ex-Serviceman Transport Co. & another(cited supra), copy of which  is filed  on record. In this case  there was  no evidence  to show that  the  complainant had paid dues or that  repossession of the vehicle is illegal but  in that case a plea was taken  that No Objection Certificate issued  by Motor  Licensing  Authority  was a  forged   document.  In that connection  it was observed by the Hon’ble National Commission that  award was already passed  and since the matter of  forgery  was required  to be  investigated  in depth the same was not possible  before  the Forum constituted  under the Consumer Protection Act, 1986. It was also observed that award was passed before the complaint was filed. I have also heard Mr. A.T. Sawal, learned advocate for the respondent /complainant on this aspect and he has drawn my attention to Section 3 of the Consumer Protection Act. 1986 which laid down  that  the remedy provided  under the  Consumer Protection Act is  in addition  to the remedies available  to the complainant.  Furthermore I am of the view that the facts in the case of the   The Installment  Supply  Ltd.  Vs. Kangra Ex-Serviceman Transport  Co. & another(cited supra) were slightly  different  and no ratio was laid down  by the Hon’ble  National Commission. Apart from this  aspect I am of the clear view  that  this question  regarding  tenability can be considered  only  while  dealing with  the complaint  on merits and not in the  present  revision petition.  Mr. Patait, learned advocate for the  petitioner  has also relied  upon  one more judgment in the case of  Sevati Devi  Vs. Hinduja Leyland Finance  Limited  and others  delivered  by H.P. State Consumer Disputes Redressal Commission, Shimla on 26/06/2020 in First Appeal No. 116/2019. But  in that case  also the matter was relating to the  settlement  of accounts and it was observed  that  the  same cannot be decided  under the Consumer Protection Act in  a summary  manner. As such  I am of  the humble  view that both  these judgments  on which  reliance  is placed  by  Mr. Patait, learned advocate for the  petitioner will not go to help  the case of the petitioner. Beside this I find that the learned District Consumer Commission, Nagpur has also dealt with this aspect elaborately .

9.         During the course of argument  Mr. Patait, learned advocate for the petitioner  has also relied upon  one more judgment  delivered  by the Hon;ble National  Commission in the case of I. T. Srinivas and Anr. Vs. M/s Srija Construction in Revision Petition  No. 3419 of 2013. In that case it was observed by the Hon’ble National Commission that two proceedings for the similar relief cannot run simultaneously in two Forums. But I feel find that the facts in those cases  were quite different.

10.       Apart from this the learned District  Consumer Commission, Nagpur has also  in the impugned  order dated 16/07/2021  observed that  the vehicle  of the complainant  has come to be seized and repossess without  issuing any notice to the respondent/complainant who was a  Consumer and  therefore, the learned District Consumer Commission, Nagpur has passed  an order directing  the petitioner to  deliver possession of the vehicle which was thus only  source of livelihood  of the  respondent/complainant. While passing the  order the learned District Consumer Commission, Nagpur has also  elaborately  observed  that  no notice was issued  to the respondent/complainant   before repossessing  the vehicle.  It is submitted by Mr. Patait, learned advocate for the petitioner  that  no notice was necessary  but I am unable to agree with  this contention. In my view it was necessary  for the petitioner  to issues notice  to the respondent /complainant before  repossessing the vehicle and so there was no error in this finding  given by the learned District Consumer Commission, Nagpur. The learned District Consumer Commission, Nagpur also directed the respondent /complainant to pay Rs. 20,000/- which according to the learned advocate for the petitioner was a  very meager amount. However, during the course of final hearing  of the present  revision  petition  the present  respondent /complainant  has also placed  on record one pursis stating  that  he has deposited  not only amount of Rs. 20,000/- but also the  balance  amount of Rs. 1,50,393=55 on 26/10/2021 by way of demand draft which was  as per  purported  claim of  the petitioner. It is thus very clear that the respondent /complainant  have not only paid the amount as directed  by the learned District Consumer Commission, Nagpur but also  as per the claim of the petitioner and so the respondent /complainant  was clearly entitled  for the custody of the vehicle namely truck bearing No. CG-04/JD-8413. In the light of  the aforesaid  discussion  I am  unable to accept  the contention  advanced by  Mr. Patait, learned advocate for the  petitioner that the learned District Consumer Commission, Nagpur had committed  any manifest  error in passing  the impugned order dated 16/07/2021. On the other hand, I find that the learned District Consumer Commission, Nagpur has elaborately dealt with all aspects and  I see no reason to interfere with the said order.  In the light of the aforesaid discussion I proceed to pass the following order.

ORDER

i.          Revision Petition No. RP/21/8   is hereby dismissed.  

ii.          No order as to cost.

iii.         Copy of order be furnished to both the parties free of cost.