The Complainant has filed this case alleging deficiency-in-service by the O.P, where O.P is the Manager, TATA Motor Finance Ltd., Sahadevkhunta, Balasore.

                    2. The case of the Complainant in brief is that the Complainant has purchased a Tanker of TATA on 07.01.2015 bearing Regd. No.OD-01F-9343 with finance of O.P and was paying the instalment regularly. But, due to illness, the Complainant was unable to pay some premiums of some months and there was a mutual settlement between the Complainant and the O.P that the Complainant will pay Rs.4.90 Lakhs (Rupees Four lakhs ninety thousand) only towards full and final payment of tanker loan to the O.P out of final assessment by the O.P of Rs.17,70,474.40 ps. (Rupees Seventeen lakhs seventy thousand four hundred seventy four and forty paisa) only. Thereafter on 29.05.2018, when the tanker of the Complainant was on the journey to Balasore from Keonhar, the O.P forcibly taken the tanker to his custody from the driver of the tanker. When the Complainant arranged Rs.4.90 Lakhs (Rupees Four lakhs ninety thousand) only and approached the O.P for release of the tanker, the O.P refused to settle the dispute about release of the tanker on 29.05.2018. The Complainant is willing to pay the full and final premiums in instalment basis, but the O.P threatened the Complainant on 19.06.2018 to sale the tanker in low price, causing irreparable loss to the Complainant. Cause of action to file this case arose on 29.05.2018 and on 19.06.2018. The Complainant has prayed not to sale the tanker and to release the same from the O.P and also prayed to allow him to pay settlement amount of Rs.4.90 Lakhs (Rupees Four lakhs ninety thousand) only in instalment basis to the O.P.

                    3. Written version filed by the O.P through his Advocate denying on the point of maintainability and jurisdiction. The O.P has further submitted that the Complainant is a chronic defaulter of the installments and the defaulted, late and part payments by the Complainant have resulted in addition of the delayed payment charges or accrued overdue charges along with remaining balance towards the installments. Thus, the Complainant has grossly violated the terms of the agreement and hence, there cannot be any complaint of deficiency of service against the O.P. The O.P has further submitted that the cheques issued by the Complainant towards repayment of the loan have been dishonoured regularly due to insufficient funds maintained in the Bank account by the Complainant, which proves the malafide conduct on his part. The Complainant-borrower and the O.P-Financer have entered into a Loan-cum-Hypothecation-cum- Guarantee agreement and are bound by the terms and conditions stated in the said agreement. The Clause-18(a) of the said Loan-cum-Hypothecation-cum- Guarantee agreement gives an authority to the O.P to repossess the vehicle in the event of default. The Complainant has concealed a material fact that his vehicle has been repossessed earlier due to frequent defaults by the Complainant, after following due process of law subsequent to which the same has been released back. It is also submitted that presently the Complainant is plying his vehicle peacefully without any interference since its release. However, it may be stated that there was no force used by the O.P in repossession of the vehicle. Further, the Complainant has also failed to produce any evidence to prove the allegation of forceful repossession. The Complainant with malafide intention evaded in paying the loan installments and even after release of the vehicle is continuing to default and is acting in a malefide manner. It is pertinent to mention here that the Complainant has suppressed the Arbitral award/ order to this Forum for illegal gain. The O.P has preferred an arbitration petition bearing Case No. TMFL/138871/2017 and the Hon’ble Arbitrator passed the award/ order on 21.09.2017 in connection with this case. Thus, this Forum has no jurisdiction to entertain the matter, for which the case of the Complainant is liable to be dismissed.

                    4. In view of the above averments of both the Parties, the points for determination of this case are as follows:-

(i) Whether this Consumer case is maintainable as per Law ?

(ii) To what relief the Complainant is entitled for ?

                    5. In order to substantiate their claim, both the Parties have filed certain documents as per list. Perused the documents filed. It has been argued on behalf of the Complainant that there was a mutual settlement between the Parties for payment of Rs.4.90 Lakhs (Rupees Four lakhs ninety thousand) only by the Complainant to the O.P towards full and final payment of tanker loan and the final assessment was of Rs.17,70,474.40 ps. (Rupees Seventeen lakhs seventy thousand four hundred seventy four and forty paisa) only. But, the Complainant has failed to submit the documents in support of it though orally argued. However, further it has been argued that the O.P forcibly took the tanker from the custody of the driver of the tanker of the Complainant and after realization, when the Complainant approached the O.P for payment and release of the tanker, the O.P did not receive the same and also refused to settle the dispute about release of the tanker. Further, the O.P threatened the Complainant to sale the tanker in low price. So, in this background, he came to this Forum praying for relief as per complaint petition. On the other hand, it has been argued on behalf of the O.P that as per Clause-18(a) of the said Loan-cum-Hypothecation-cum- Guarantee agreement, the O.P has authority to repossess the vehicle in the event of default and accordingly, the O.P has repossessed the vehicle. Moreover, the Complainant has suppressed about arbitration award already been awarded regarding this case, which shows his malafide intention and for his illegal gain. On the prayer of the O.P, arbitration case was initiated and award was passed on 21.09.2017 in Case No. TMFL/138871/2017. According to settled principle of Law, after passing of arbitration award, no complaint can be decided by the Consumer Fora as the authority of Hon’ble National C.D.R Commission, New Delhi reported in (2007) 1 CPJ-34 in the case of Instalment Supply Ltd. (Vrs.) Kangra Ex-Serviceman Transport Co. and anr. Furthermore, the Authority reported in Revision Petition No.97/2012 decided on 16.07.2013 in the case of Sangram Rout, acting as Manager and representing TATA MOTORS FINANCE LIMITED (Vrs.) Niranjan Palai, wherein it has been held by the Hon’ble State C.D.R Commission, Orissa, Cuttack that “Even though Section-3 of the Consumer Protection Act, 1986 lays down that the said Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, when the dispute having been decided, award was made by the sole arbitrator, the subsequent C.D Case was not maintainable”. In this case, award has been passed by the sole arbitrator on 21.09.2017 and this case was filed on 22.06.2018, which is much after passing of arbitration award.

                    6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by the above Authority as discussed earlier, this Forum come to the conclusion that this Consumer case is not maintainable, for which the Complainant is not entitled for any relief as prayed for and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-

                                                     O R D E R

                         The Consumer case is dismissed on contest against the O.P, but in the peculiar circumstances without cost.  

                         Pronounced in the open Forum on this day i.e. the 15th day of February, 2019 given under my Signature & Seal of the Forum.