Jitendra Kumar Dev vs Mangma Finance Corporation Ltd.

PETITIONERS who are the legal heirs of the (Original Complainant -Sh. Jitender Kumar Dev) have filed this Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'') challenging the impugned order dated 21.3.2013, passed by Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short, ''State Commission''). Brief facts are that Jitender Kumar Dev -Original Complainant (since deceased) had taken a loan of Rs. 10,30,000 for purchase of a truck from Respondent No. 1/opposite party No. 2, as per Hire Purchase Agreement dated 31.7.2007. The vehicle was insured with Respondent No. 2/opposite party No. 1. The loan amount was repayable in 42 instalments but complainant had paid only 7 instalments.

ON 5.3.2008, the truck in question was going to Durgapur after unloading goods at Kolkata, when certain miscreants looted the truck. Report to this effect was lodged with the Police. Thereafter, complainant lodged the claim with respondent No. 2. In the meantime, 4 cheques issued by complainant in favour of the respondent No. 1 got dishonoured. In fact, respondents were required to pay the value of truck, i.e., Rs. 12,54,000. At worst, respondent No. 1 could have adjusted the remaining amount of Rs. 8,17,400 from the same. However, respondent No. 1 is bound to pay the balance amount of Rs. 4,36,000 to the complainant. With these allegations, a consumer complaint was filed before the District Consumer Disputes Redressal Forum, Giridih (for short, ''District Forum''). Respondent No. 1 in its written statement took the plea, that for the insurance claim of the petitioners, if any, respondent No. 2 alone is responsible. However, the complainant had withheld a huge sum of Rs. 11,47,726 of the answering respondent, since complainant continuously defaulted in making the payment of the agreed monthly instalments. Hence, complainant had no case against respondent No. 1.

RESPONDENT No. 2 in its written statement took the plea that no particulars of insurance policy have been disclosed by the complainant, as such no case is made out against it.

DISTRICT Forum, by order dated 11.1.2011, allowed the complaint and directed respondent No. 2 to pay the insured amount to the complainant after calculation along with interest @ 10% p.a. from the date of application till payment. Respondent No. 2 was also directed to pay a sum of Rs. 10,000 as litigation cost. Order of the District Forum was challenged by respondent No. 1 alone, before the State Commission. Vide impugned order, the State Commission set aside the order of the District Forum and dismissed the complaint.

WE have heard the learned Counsel for the petitioners and gone through the record.

STATE Commission, in its impugned order observed: 5. Admittedly the truck in question was hypothecated with the appellant M/s. Magma Fincrop Ltd. And insured vehicle remained its property till all dues were paid back by the complainant as per terms of the contract. This legal position has been relied by this Commission in FA No. 561/03, FA No. 260/06, FA/110/06 and FA No. 335/09 reported in, 1 (2007) CPJ 391 and, I (2012)CPJ 277 where in the complainant was held simply a hirer while the ownership remained with the financer. We accordingly hold the complainant was not owner of the insured vehicle.

The appellant has further asserted that they initiated an arbitration proceeding and an award has already been made on 29.1.2009, well before the lodging of the complaint case. In that circumstance the complainant was bound to pay the awarded amount till set aside by a competent Court. This legal position is not disputed. The award already made through the arbitration proceeding is binding between the parties.

It is apparent from the record, that District Forum had not passed any adverse order against respondent No. 1. Thus, there was no need for respondent No. 1 to file an appeal. Be that as it may, in this revision, petitioners themselves have placed on record the certified copy of the Arbitrator''s Award. As per this Award, the arbitration proceedings were initiated in the year 2008, that is, much before the filing of the consumer complaint before the District Forum, as it was filed only in October, 2009. Moreover, the award had been passed on 29.1.2009, which admittedly was also before filing of the consumer complaint. Surprisingly, the complainant for reasons best known to him did not mention these relevant facts about the arbitration proceedings and passing of the award by the Arbitrator, in its complaint. Even otherwise also, complainant did not challenge the Arbitrator''s award. Instead, he filed the Consumer Complaint before the District Forum. When an award in the arbitration proceedings had already been passed, before the filing of the Consumer Complaint, under these circumstances, the consumer complaint filed against respondent No. 1, is not maintainable at all.

HENCE , there is no merit in this revision petition since, complainant had already availed an equally efficacious remedy available to him. The present petition is nothing but gross abuse of the process of law. Therefore, this revision stand dismissed with cost of Rs. 5,000 (Rupees five thousand only).

PETITIONERS are directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account'' within four weeks. In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization. Pending application stand dismissed. List on 25.4.2014 for compliance.