BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 23 of 2015
Sri Uttam Paul, …………………………………………………… Complainant.
-V/S-
1. Tata Motors Finance Ltd.,
Having its registered office at 10th Floor,106 A and B
Maker Chambers II, Nariman Point, Mumbai-400021. O.P No.1.
2. Branch Manager, Tata Motors Finance Ltd.,
C/o Surana Motors Pvt. Ltd.,
Hailakandi Road, P.O. & P.S. Silchar. O.P No.2.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Mrs. Chandana Purkayastha, Member,
District Consumer Forum,
Cachar, Silchar.
Shri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Sri Kashi Biswanath Das, Advocate for the complainant.
Sri Mithu Deb, Advocate for the O.Ps.
Date of Evidence 30-03-2017, 19-06-2017
Date of written argument 19-08-2017, 14-09-2017
Date of oral argument 27-12-2017
Date of judgment 10-01-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- This case has been brought by Sri Uttam Malakar (referred as complainant) against Tata Motors Finance Ltd. and its Branch Manager, Silchar (referred as O.Ps) for a direction for restoring the possession of his TATA LP712 vehicle bearing Registration No. AS-24/C-2825 or in alternative an award of refunding price of that vehicle of RS.14,73,000.00 and compensation etc.
- Brief facts:-
The complainant purchased the aforesaid vehicle on financial assistant of Rs.9,50,000.00 from O.Ps on 16-05-2012 against cost of the vehicle of Rs.12,70,721.00. As per loan agreement vide contact No. 5000969842 dated 16-05-2012 the complainant is to repay loan in 45 EMI of RS.32,735.00 each except the first EMI of Rs.32,760.00. He was repaying the loan as per agreement but on 11-08-2014 the vehicle met accident. Accordingly, the vehicle kept in garage for repairing and lodged Silchar P.S Case No. 2032/14. Anyhow, after repairing the vehicle was plying on the road but failed to repay few EMI due to aforesaid accident. But without serving notice to the complainant, the vehicle was re-possessed by the O.P. on 06-06-2015. Hence, this case.
- The O.Ps in their W/S stated inter-alia that the complainant was defaulter for repayment of many EMI and total outstanding due was Rs.6,63,412.00 including overdue charge as on 02-02-2016. Moreover, after drawing Arbitration proceeding No.TMFL/98581/2015 and obtaining an interim order dated 18-04-2015 of the sole Arbitrator took back the possession of the vehicle. They also stated that this case is not maintainable in this Consumer Forum because the relation between the O.Ps and complainant are creditor and Borrower and as per the case law of Supreme Court, a borrower is not a consumer.
- During hearing the complainant deposed on oath and exhibited some documents. The O.P also examined Sri Sabyasachi Dutta the Area Legal Manager of the O.P and exhibited many documents including interim order and final Award of Arbitration vide Ext-D and Ext-E respectively.
- After closing evidence, both sides’ counsels submitted written argument. I have also heard oral argument of both sides’ counsels and perused written argument as well as evidence on record.
- In this case it is admitted fact that the complainant is borrower and O.Ps are creditor for loan of Rs.9,50,000.00 for purchasing of vehicle. It is also admitted fact that the complainant was defaulter for repayment some EMI for said loan. It is admitted fact that the vehicle has been repossessed by the O.P on 06-06-2015 without serving notice. From the evidence on record including Ext-D and Ext-E, it is established fact that the dispute referred to sole Arbitration the said sole Arbitration by exparte order directed the O.P to repossess the vehicle and keep in safe custody without causing loss/damage until further direction.
- I have gone through the provision of Section 3 of the Consumer Protection Act, 1986. As per the said provision consumer may seek additional relief from the consumer Forum other than relief claim in regular court other other Forum but same relief cannot be obtained from both the Forum. But in the instant case the complainant took loan from the O.P to purchase the vehicle. So the O.Ps are not Service Provider or Trader but Creditor. So it is apparent that the complainant is a borrower. Thus, a borrower cannot be treated as consumer. Moreover, it is admitted fact that on the same subject matter the dispute referred to sole Arbitration and the Arbitration not only passed any interim order for repossessing of the vehicle for defaulter of repayment of the outstanding loan but also passed final award vide Ext-D and Ext-E respectively. Thus, this District Forum has no jurisdiction to try the same disputed matter. Of course, the complainant can seek redressal of his grievances before the competent Civil Court where Appeal if any against Award of Arbitration is lying vide Revision petition No.1936 of 2015 of National Consumer Disputes Redressal Commission.
- Of course, during oral argument the Ld. Advocate of the complainant stated that Arbitration award is required to execute as per execution proceeding but the O.P without following the procedure of execution, repossessed the vehicle. Hence, the O.Ps are liable to restore possession of the vehicle. The Ld. Advocate of the O.P did not agree rather stated that there is no specific direction to give prior notice to the complainant for repossession the vehicle. But in this case, when I do not find the status of the complainant as consumer as per provision of the Consumer Protection Act, so I do think it is necessary to discuss the said disputed matter in this judgment. Moreover, nothing disclosed in the complainant or in the deposition regarding the above sticky point. Hence, the complainant is not entitled any relief from this District Forum.
- Consequently, this case is dismissed on contest without cost. Supply free certified copy of judgment to the parties of this case. Given under my hand and seal of this District Forum on this the 10th day of January, 2018.
