Full Judgment
(Order)
R.S. Sharma, President:
1. This appeal is directed against order dated 02.07.2012, passed by District Consumer Disputes Redressal Forum, Raigarh (C.G.) (henceforth District Forum") in Complaint Case No.12/2011. By the impugned order the complaint of the complainant/appellant, has been dismissed by the District Forum.
2. Briefly stated, the facts of the case of the complainant/appellant before the District Forum are as under:-
3. That the complainant/appellant is owner of a vehicle Tata 2515 bearing registration No.C.G.-13-D-3020. He purchased the said vehicle on the basis of re-finance facility on 02.12.2009 from the OPs/respondents and Hire Purchase Agreement No. P.Q.001750 H was executed between the complainant/appellant and OPs/respondents, which was effective till 07.10.2012. The complainant / appellant got the vehicle insured and according to the agreement, the next insurance was to be obtained by the OPs/respondents and OPs/respondents collected the premium amount from the complainant/appellant during re-finance period, but the OPs/respondents did not obtain insurance within time. On 09.08.2010, vehicle Tata 2515 bearing registration No.C.G.13-D-3020 met with an accident near Godgoda Culvert, Punjipathra. The vehicle was badly damaged and complainant/appellant spent a sum of Rs.65,000/- on repairing of the said vehicle. He submitted claim before the OPs/respondents, but OPs/respondents did not respond it. The complainant/appellant suffered loss of near about Rs.80,000/- per month due to non-payment of the amount by the OPs/respondents and the vehicle in question was kept in garage without repairing and OPs/respondents committed deficiency in service. The complainant/appellant filed complaint before the District Forum.
4. OPs/respondents filed their written version before the District Forum and denied the allegations levelled by the complainant/appellant in the complaint and submitted that the vehicle of the complainant/appellant was not met with any accident on 09.08.2010 near Godgoda Culvert, Punjipathra. No information was given by the complainant/appellant to the OPs/respondents regarding the incident. When OPs/respondents received information regarding incident, they paid a sum of Rs.80,000/- to the complainant/appellant. According to the agreement, the complainant/appellant obtained loan of Rs.5,50,000/- from the OPs/respondents and amount of loan to be deposited in 36 monthly instalments and insurance of first 12 months was obtained by the complainant/appellant himself and for period of second and third year the insurance was to be obtained by the OPs/respondents. The complainant/appellant used the vehicle for commercial purpose and breached the conditions of the insurance policy and agreement. The District Forum has no jurisdiction to take cognizance of the case. In Hire Purchase Agreement executed between the parties, there is an arbitration clause and the matter was referred to the Arbitrator and the Arbitrator passed award on 27.04.2011, therefore, the District Forum, cannot try the case and the complaint of the complainant/appellant is liable to be dismissed.
5. Learned District Forum, after appreciation of the materials available before it, dismissed the complaint filed by the complainant/appellant.
6. Shri Mukesh Sharma, learned counsel for the complainant/appellant argued that the vehicle Tata 2515 bearing registration No.C.G.13-D-3020 met with an accident on 09.08.2010 near Godgoda Culvert, Punjipathra, and information in this regard was sent to the OPs/respondents and the complainant/appellant also lodged report at Police Station, Punjipathra. The complainant also submitted claim before the Insurance Company, but the claim of the complainant/appellant could not be settled by the Insurance Company because the OPs/respondent had not provided the insurance policy to the Insurance Company and thus, OPs/respondents committed deficiency in service. He further argued that learned District Forum erred in holding that complainant/appellant has not been able to prove his case. He further argued that on the basis of documents filed, it appears that the vehicle in question was not got insured by the OPs/respondents and thus they committed deficiency in service. According to the agreement executed between the parties, it was obligatory for OPs/respondents to obtained insurance policy for the vehicle in question, but OPs/respondents failed to perform their obligatory duty, therefore, the complainant/appellant is entitled for compensation and finding recorded by the District Forum, is patently illegal, perverse and is not sustainable in eye of law.
7. Smt. Nupur Pal, learned counsel for the OPs/respondents argued that matter was referred to the Arbitrator and the Arbitrator passed award on 27.04.2011 and copy of the award is annexed in the record of the District Forum. Therefore, the District Forum, has no jurisdiction to try the case. She further argued that in merit also, the complainant/appellant completely failed to prove his case and OPs/respondents adjusted a sum of Rs.80,000/- in the loan account of the complainant/appellant. Hence, the finding recorded by the District Forum does not suffer from any infirmity, illegality or irregularity and does not call for any interference by this Commission.
8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
9. The arbitral award passed by Mrs. Subha Kumar, Sole Arbitrator dated 27.04.2011 is annexed in the record of the District Forum. The award was passed by the Sole Arbitrator on 27.04.2011. In the said arbitral award, it is mentioned that :-
"Claim petition no.SB/CP/017 of 2011
In the matter of Arbitration and Conciliation Act, 1996
And
In the matter of disputes between IndusInd Bank Ltd.
and Mr. Ashish Kumar Agrawal and another related to the
Loan agreement bearing no.PQ001750H dated 19.11.2009."
10. From the perusal of award passed by the Arbitrator, it appears that the matter was referred to the Arbitrator prior to 14.01.2011 i.e. the date of filing of the complaint by the complainant/appellant before the District Forum and in para No.2 of the said award it is mentioned that "This Tribunal's notices dated 4.1.2011, 1.2.2011 and 1.3.2011 were duly served on Respondent no.II (Mr. Ashish Kumar Agrawal)". It appears that the matter was referred to the Arbitrator prior to 14.01.2011. It also appears that prior to filing of the complaint i.e. on 14.01.2011, the matter was referred to Arbitrator for arbitral award and it is well within the knowledge of the appellant/complainant.
11. In the case of M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy, 2013 (4) CPR 345 (SC), Hon'ble Supreme Court has observed thus :-
"29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 “ Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
12. In the case of Instalment Supply Ltd. vs. Kangra Ex-Serviceman Transport Co. and Anr., I (2007) CPJ 34 (NC), Hon'ble National Commission, has observed thus :-
"3. Dissatisfied with the order of State Commission, the petitioner has filed the revision. It was contended by the Counsel of the petitioner that an arbitration award has been passed in this case which is binding on the parties. He further submitted that the complaint was barred by res judicata inasmuch as respondent No.1 concealed from this Commission that all disputes between the petitioner and respondent No.1 had already been settled by arbitration in accordance with Arbitration Agreement contained in the said Hire Purchase Agreement (HPA). The award dated 5.9.2000 of the Arbitrator Mr. K.L. Bhendwal had already been published and delivered and the award takes into account all the payments made or due. In terms of said award, the respondent No.1 owes the petitioner a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement. Though, this fact was brought to the notice of District Forum in the reply but was ignored.
"..........The said award had taken into account all payments made or due under the said agreement, and has held that the respondent No.1 owed the appellant a sum of Rs.58,114 towards arrears of hire money, interest and other charges under the said agreement."
13. If one of the parties opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Protection Act, 1986. If he chooses for arbitration proceedings in the first instance, then he cannot file a complaint before the Consumer Forum.
14. In Instalment Supply Ltd. vs. Kangra Ex-Serviceman Transport Co. and Anr. (Supra), Hon'ble National Commission observed that if arbitration award already passed “ all disputes between complainant and O.P. settled by arbitration in accordance with arbitration agreement - award passed before filing of the complaint - Former will govern dispute between the parties and decision of the Arbitrator is binding upon the parties.
15. In the instant case, the OPs/respondents referred the matter to Arbitrator and the Arbitrator sent notices dated 4.1.2011, 1.2.2011 and 1.3.2011. According to arbitral award, it appears that these notices were duly served on complainant/appellant. It further appears that the complainant/appellant was having knowledge regarding the arbitration proceedings and after commencement of arbitration proceedings the complainant/appellant filed complaint before the District Forum on 14.01.2011 and Arbitrator passed order on 27.04.2011. The District Forum passed order on 02.07.2012 i.e. after passing of the arbitral award.
16. If once award is passed by the Arbitrator then only remedy available to an aggrieved party is to file an application under Section 34 of the Arbitration and Reconciliation Act, 1996 for setting aside the award. Looking to the record of the District Forum, it appears that the complainant/appellant did not opt to file an application under Section 34 of the Arbitration and Reconciliation Act, 1996 before competent District Judge and instead of filing application under Section 34 of the Arbitration and Reconciliation Act, 1996 the complainant/appellant continued in prosecuting the matter before District Forum.
17. Looking to the facts and circumstances of the we are of the view that once the matter is referred to the Arbitrator and award is passed by the Arbitrator, then the complaint before the District Forum, under Consumer Protection Act, 1986 is not maintainable.
18. So far as merit of the case is concerned, learned District Forum has observed in para no.16 that argument of the complainant is that the vehicle was kept in the garage for two months even after repairing and the complainant could not file the claim form before the Insurance Company because the OPs/respondents had not provided insurance policy. If the insurance policy would have been provided in time, the payment of Rs.80,000/- would have been made and the complainant/appellant would not have to suffer loss of Rs.80,000/- per month. The complainant/appellant has not filed any document regarding monthly income from vehicle bearing No.C.G.13-D-3020. In para No.18, the District Forum has observed that according to document nos.14 and 16 filed by the OPs/respondents, they have insured the vehicle for the period from 10.08.2010 to 09.08.2011 and the policy No. is 3379/00469001/000/00. The date of accident is 09.08.2010. It means that after accident, the OPs/respondents have got insured the vehicle. On being intimation given to the OPs/respondents, a sum of Rs.80,000/- was adjusted in the account of the complainant/appellant, and it appears the OPs/respondents had to get the vehicle insured after re-finance. On 09.08.2010 the vehicle was not insured and even then the OPs/respondents adjusted the amount of Rs.80,000/- towards Claim Settlement On Policy No.3373/004690 dated 26.04.2011.
19. In view of aforesaid discussions, the finding recorded by the District Forum is just and proper and the impugned order is a speaking and well reasoned order. It does not suffer from any infirmity, illegality or irregularity and does not call for interference by this Commission.
20. Therefore, the appeal filed by the complainant/appellant being devoid of any merit, deserves to be and is hereby dismissed. No order as to the cost of this appeal.