STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(Additional Bench)
Appeal No. | : | 139 of 2022 |
Date of Institution | : | 21.10.2022 |
Date of Decision | : | 30.01.2023 |
- Tata Motors Finance Limited (Formerly Known as Sheba Properties Ltd.), SCO NO.11, First Floor, Sector 26-D, Madhya Marg, U.T., Chandigarh.
- Tata Motors Finance Limited (formerly known as Sheba Properties Ltd.), 1-Think Techno Campus, Building A, 2nd Floor, Off. Pokharan Road 2, Thane West 400601 Mumbai.
- Tata Motors Finance Limited (Formerly known as Sheba Properties Ltd.), Regd. Office 10th Floor, 106-A & B, Maker Chambers III, Nariman Point, Mumbai through its authorised signatory Mr.Yogesh Kumar Bansal, available at SCO-11, Ist floor, Sector-26, Chandigarh.
…Appellants
V e r s u s
- Sanjiv Thakur s/o Sh.Om Chand, R/o H.No.2172/2, Ambedkar Colony, Dhanas, Chandigarh.
- Tata AIG General Insurance Company Limited, SCO 232/234, Sector-34-A, Chandigarh through its Manager. ...Respondents
Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 08.08.2022 passed by District Consumer Disputes Redressal Commission-II,U.T. Chandigarh in Consumer Complaint No.212/2019.
BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
Mr.PREETINDER SINGH,MEMBER
Argued by: Sh.Sanjeev Goyal, Advocate alongwith Sh.Gaurav Bhardwaj, Advocate for the appellants.
Sh.Rohit Malik, Advocate for respondent No.1
Sh.Sahil Abhi,Advocate for respondent No.2
PER PREETINDER SINGH, MEMBER
This appeal is directed against the order dated 08.08.2022, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/212/2019 and directed the Opposite Parties in the following terms;-
“From the above discussion and findings, we are of the opinion that it is proved that the OPs No.1 to 3 have acted illegally and arbitrarily, which not only amounts to gross deficiency in service on their part but also amounts to their indulgence into unfair trade practice. Therefore, the present complaint stands allowed against OPs No.1 to 3 with direction to return the vehicle in question to the complainant in a roadworthy condition, failing which they shall be liable to pay the value of the vehicle i.e. IDV- Insured Declared Value of the vehicle of Rs.3,31,380/- (Ann.C-4) minus the outstanding loan amount of Rs.1,06,596/- as stands on 25.4.2019 (Ann.R-4 Pg-30) i.e. they shall pay the remaining amount of Rs.2,24,784/- along with interest @10% p.a. w.e.f. 1.5.2019 i.e. after alleged auction/sale of vehicle in question till realization. The OPs No.1 to 3 are also directed to pay a compensation amount of Rs.One Lakh to the complainant for causing him immense mental agony & harassment due to their illegal, deficient and unfair act & conduct, apart from paying litigation cost of Rs.20,000/-.
This order shall be complied with by the Opposite Parties No.1 to 3 within a period of 30 days from the date of receipt of its certified copy, failing which it shall be liable to pay additional compensatory cost of Rs.25000/- apart from above relief.”
2. Before the Ld. Lower Commission, it was case of the complainant/respondent No.1 that in order to earn his livelihood, he purchased Tata Indigo ECS TDI Car for an amount of Rs.5,26,886/- after availing loan of Rs.3,80,000/- from Opposite Party No.1/appellant No.1 in Dec., 2015 and got it registered vide Registration No.CH-02-AA-6824. The said loan of Rs.3,80,000/- was to be repaid in 48 equated monthly installments of Rs.11,844/- The complainant was regularly paying the loan installments, but erred in paying two installments in the year 2017 due to financial crisis, which created an overdue installment/outstanding amount of Rs.48,071.45 towards him, which he cleared by depositing the said amount on 22.10.2018 (Annexure C-7). In Jan., 2019 due to unfortunate demise of his near-dear, he could not pay one instalment but kept on paying remaining instalments from 2.2.2016 onwards and as such paid a total sum of Rs.4,26,590.38 by way of 36 installments. The balance amount to be repaid by the complainant was Rs.1,41,921.62 with regard to remaining 12 installments out of 48 installments as per balance sheet issued by Opposite Party No.1 dated 27.3.2019 (Annexure.C-11). It was alleged that on 22.3.2019, when the complainant reached near interstate Bus stand of Phagwara, after dropping passengers at Nakodar in Punjab, five men having knives forcibly took the car of the complainant and ran away. The complainant reported the matter to the police, but the concerned SHO refused to register his complaint and then he made written complaint to the concerned SSP, Phagwara vide Annexure C-13. It was further alleged that the complainant later on came to know that the vehicle was forcibly taken away by the recovery agents of Opposite Party No.1. It was stated that as per Contract details dated 27.3.2019(Annexure C-14), the car in question was in the mode of getting auctioned by Opposite Party No.1. It was alleged that Opposite Party No.1 arbitrarily and illegally seized the vehicle of the complainant without issuing any notice or affording any opportunity of being heard. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, a consumer complaint was filed before the Ld. Lower Commission.
3. Appellants/Opposite Parties No.1 to 3 appeared before the Ld. Lower Commission and instead of filing reply and evidence, filed an application for dismissing the complaint, on the ground, that an arbitration award had been passed in the matter, in question, and the complaint was liable to be dismissed being not maintainable. In the application, answering Opposite Parties stated that the complainant obtained loan facility of Rs.3,80,000/- for purchase of the vehicle in question and executed a Loan Agreement dated 26.12.2015 and agreed to abide by the terms & conditions of the loan agreement. As the complainant failed to adhere to the financial discipline of the agreement and did not pay the agreed amount, resultantly, an amount of Rs.2,73,544.54 became due against him as on 8.2.2018. Consequently the matter was referred to Sole Arbitrator Mr. S. P. Panesar, as per clause 26 of the Agreement. The Sole Arbitrator issued notices to the complainant for appearance but complainant did not appear and was proceeded exparte. Thereafter, the Sole Arbitrator passed an award on 5.5.2018 (Annexure R-3) in favour of the answering OPs for recovery of the amount of Rs.2,73,544.54 alongwith further interest @ 18% p.a. from 8.2.2018 till payment. The Opposite Parties were also granted liberty to sell the vehicle for recovery of outstanding amount. After passing the arbitration award, the complainant though made some part payments, yet failed to clear the outstanding amount against him. Accordingly the vehicle was repossessed as per award dated 5.5.2018 and consequently sold by answering OPs. According to the Opposite Parties, still an amount of Rs.1,06,596/- was due against the complainant as per Account Statement dated 25.4.2019 (Annexure R-4). Maintainability of the complaint before the Consumer Fora was challenged and a prayer was made for dismissal of the complaint.
4. Opposite Party NO.4 – Tata AIG General Insurance Company also filed reply admitting the issuance of insurance policy in respect of the vehicle in question. It was, however, stated that the insurance policy does not cover the risk of taking re-possession of the vehicle by the finance company on account of default in payment of regular installments. Denying other allegations being not related to it, OP No.4 prayed for dismissal of complaint against it.
5. On appraisal of the pleadings, and the evidence adduced on record, Ld. Lower Commission allowed the complaint of Respondent No.1/ Complainant, as noted in the opening para of this order.
6. Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellants/Opposite Parties No.1 to 3..
7. We have heard Learned Counsel for the parties, and have gone through the evidence and record of the case with utmost care and circumspection.
8. The core question that falls for consideration before us, is as to whether, the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it.
9. After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.
10. The main ground, in the appeal, taken by the appellants is that as the Arbitration proceedings were already initiated much prior to filing of the complaint by the appellants and even the arbitration award was passed by the Sole Arbitrator on 25.4.2018, consumer complaint filed on 5.4.2019 was not maintainable and the Ld. Lower Commission has got no jurisdiction to try & decide the complaint. The other ground taken is that an amount of Rs.2,73,544.44 was due against respondent No.1/complainant as on 8.2.2018 but he did not pay the said amount and as per clause 26 of the Agreement the matter was referred to the Sole Arbitrator who passed an interim order Under Section 17 of the Arbitration & Conciliation Act,1996 and directed the complainant to hand over the possession of the vehicle to the appellants, failing which, the appellants were to take possession, seize and recover the vehicle in question. It is case of the appellants that in arbitration proceedings, notice for appearance on 25.4.2018 and then copy of the award was sent on 9.5.2018 but respondent No.1/complainant did not take any action and ultimately as per the award due procedure of law was followed while re-possessing the vehicle as well as for selling the same and after adjustment of sale proceeds, still an amount of Rs.106596/- was due being loss on sale of vehicle. The Ld. Lower Commission has rightly observed that Opposite Parties Nos.1 to 3/appellants have failed to produce before the Lower Commission copy of any notice which was issued to the complainant/respondent No.1 to join the arbitration proceedings at Mumbai so that he could contest his case. Further at the time of repossessing the vehicle and thereafter auctioning the same, no proper procedure was followed by the appellants for the said process. It seems that they acted in a haste and caused immense loss to the complainant/respondent NO.1 who was plying the vehicle to earn his livelihood. Even after auctioning of the vehicle in question, appellants still claimed that certain amount is outstanding against the complainant but failed to produce any record of the same.
11. It is case of the respondent No.1/complainant that no notice of arbitration of proceedings was ever received and further arbitration proceedings were conducted arbitrarily and unilaterally at Mumbai, without having his consent. Also no opportunity was given to choose and appoint an arbitrator. Further, the appellants failed to place on record any document showing that proper procedure, as per law, was followed for repossession the vehicle, which is indicative of the fact that no due procedure was followed while repossession the vehicle in question. The Ld. Lower Commission rightly observed that the appellants also acted arbitrarily and illegally by not intimating the complainant about auctioning of the vehicle as no due notices, as per law, have been issued to the complainant in order to give him an option to come forward to exercise his option during the course of auction proceedings to either clear the outstanding loan amount or win the bid by participating in it.
12. After going through the contents of appeal and the impugned order passed, we are of the view that the Ld. Lower Commission rightly observed that the appellants acted illegally and arbitrarily, firstly for appointing arbitrator at Mumbai without notice of the respondent No.1/complainant, secondly repossessing the vehicle, in question, without following the due procedure and then auctioning the vehicle without due intimation to the respondent No.1, which amounted to deficiency in service and indulgence into unfair trade practice on their part.. The appellants could not show anything contrary which may persuade us to interfere in the order, under challenge.
13. In view of the above discussion, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal, being bereft of merit, is accordingly dismissed, and the order of the Ld. Lower Commission is upheld.
14. Certified copies of this order be sent to the parties free of charge.
15. The file be consigned to Record Room, after completion.
