BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 138/2004 Filed on 23..03..2004

Dated: 15..06..2010

Complainant:

J. Varghese, Varghese Bhavan, T.C.8/1128, Mythri Nagar, Thirumala, Thiruvananthapuram – 695 006.

(By Adv.S.A. Karim)

Present Address:

J. Varghese, Ner Bhavan, Kavumthala, Tholoor, Aryanad – P.O.

Opposite parties:

1. Asok Leyland Finance, Sudarsan Building, 86,Chamier's Road, Chennai – 600 018.

   (By Adv. R. Balakrishnan Nair)

2. L.M.L. Limited, OF-15-GCDA Complex, Marine Drive, Kochi.

   (By Sri. P. Narendran)

Addl. 3^rd opp. Party:

3. Kulathungal Automobiles, Kulathungal Buildings, M.G.Road, Thiruvananthapuram.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 12..07..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 11..01..2010, the Forum on 15..06..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant purchased a LML Vespa Trendy for Rs.21,762/- on 12..11..2001 inclusive of expenses for road tax, insurance, registration and interest for installment payments through the 1^st opposite party's agent Kulathungal Automobiles, that when the complainant purchased the vehicle from the 2^nd opposite party, complainant paid Rs.12,500/-, that subsequently, the complainant paid Rs.27,746/- at the rate of Rs.726/- per month from 7/12/2001 to 7/7/2003, that opposite party collected an excess amount of Rs. 5,984/- from the complainant, that as per the terms of agreement between the parties, the opposite parties will keep the duplicate key and the registration book till the payment of the full amount, that full payment was completed on 7/11/2002, that despite repeated requests, the opposite parties had not refunded the excess amount and returned the duplicate key and registration book of the vehicle, that on 16/02/2004 complainant issued a notice to the opposite parties for return of the key and registration book of the vehicle and refund of the excess amount, and the opposite party accepted the notice, that the action of the opposite parties is deficiency in service and unfair trade practice. Hence this complaint to direct opposite parties to refund the excess amount of Rs. 5,984/- with 18% interest thereon and return the duplicate key of the vehicle and registration book to the complainant.

2. 1^st opposite party filed version contending that complaint is not maintainable either in law or on facts, that complainant had entered into a hire purchase agreement with the 1^st opposite party, that the value of the vehicle as per invoice is Rs. 21,762/- is not inclusive of interest of the hire purchase amount, hire charges, process fee and other expenses of the financier, that the expenses regarding registration, insurance, handling charges etc....are to be paid to the dealer, that the 1^st opposite party has extended hire purchase finance of Rs.12,500/- on a condition to repay the same with finance charge of Rs.3,472/- (interest) process fee 2% with documentation charge etc..by installments, that the complainant had executed the hire purchase agreement and issued the cheques and has to pay an amount of Rs.1,452/- for insurance charges. Out of the cheques issued, two cheques were dishonoured for which bank charges other expenses and additional finance charges etc. have to be paid, complainant has not paid the said additional finance charges, bank charges etc.... The averment that complainant had paid Rs.5,984/- excess is not correct. Complainant has not paid any excess amount, that there is still a balance amount of Rs.700/- due from the complainant towards additional finance charges for delayed payments, bank charges for cheque dishonour, postal and telephone charges etc...., that the complainant has not paid the installments regularly, that 1^st opposite party has not received the alleged notice. 1^st opposite party has handed over the original registration book, the duplicate key, duly signed two forms No.35, a letter to the RTO expressing No Objection Certificate for cancelling the hire purchase agreement, insurance policy and obtained the receipt of the complainant.

3. 2^nd opposite party filed version inter alia that the complaint is not maintainable, that the complainant has not made out any complaint or grievances against the vehicle manufactured by the 2^nd opposite party, that the 2^nd opposite party is unnecessarily dragged into the alleged dispute with an intention to harass the 2^nd opposite party, and that the complaint is experimental, frivolous and vexatious. Hence 2^nd opposite party prayed for dismissal of the complaint

3. The points that arise for consideration are:

1. Whether the opposite party has collected excess amount from the complainant?

    

2. Whether the complainant is entitled for, refund of excess amount, return of the duplicate key and RC book?

    

3. Whether there is deficiency in service and unfair trade practice on the part of opposite parties?

    

4. Whether the complainant is entitled to compensation and cost?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P5. In rebuttal, 2^nd opposite party has filed proof affidavit and has marked Ext.D1. The receipt dated 10/2/04 furnished by 1^st opposite party is marked as Ext. D2.

4. Points (i) to (iv): It has been the case of the complainant that complainant purchased a LML Vespa Trendy for Rs. 21,762/- on 12/11/2001 inclusive of expenses for road tax, insurance, registration and interest for installments payments through 1^st opposite party's agent Kulathungal Automobiles, Thiruvananthapuram, which has been later merged with 2^nd opposite party – the LML Ltd., Kochi. It has also been the case of the complainant that at the time of purchase of the said vehicle from 2^nd opposite party, he paid Rs. 12,500/- and thereafter he paid Rs. 27,746/- at the rate of Rs. 726/- per month from 7/12/01 to 7/7/03 vide bill dated 27/11/01 issued by 1^st opposite party. It has also been the case of the complainant that he paid Rs.5,984/- excess as on 7/7/03, that 1^st opposite party ought to have stopped demand of installments from 7/11/02, and that despite repeated requests, opposite parties have not refunded the excess amount and returned the duplicate key and RC book of the vehicle. Ext. P1 is the copy of the receipt dated 12/11/01 for Rs. 12,500/- issued by Kulathunkal Automobiles to the complainant. Ext. P2 is the copy of the payment schedule dated 27/11/01 issued by 1^st opposite party to the complainant. As per Ext. P2, contract No.is ELT 01254H, contract date is 9/11/01, product name is LML Vespa Trendy. The details of the amount to be remitted by the loanee to opposite parties from 7/12/01 to 7/7/03 are given in Ext. P2. On a perusal of Ext. P2 it is seen that monthly amount to be paid by the complainant is Rs. 726/- except on 7/10/2002, for which amount to be paid Rs. 1,452/-, thereby the total amount to be remitted by the complainant would come to Rs. 15,246/-. Ext. P3 is the copy of the advocate notice dated 16/2/04, Ext. P4 is the postal receipt and the acknowledgment card. Opposite parties resisted the complainant by submitting that the value of the vehicle in dispute as per invoice is not inclusive of interest of the hire purchase amount, hire charges, process fee and other expenses of the financier, that the invoice amount of Rs. 21,762/- is the actual value of the vehicle, that 1^st opposite party has extended Hire Purchase Finance of Rs. 12,500/- on a condition to repay the same with finance charges of Rs. 3,472/-, process fee 2% with documentation charges etc. by installments. Further he has to pay Rs. 1,452/- for insurance charges. It is argued by 1^st opposite party that out of the 20 post dated cheques issued by the complainant, two cheques were dishonoured for which bank charges other expenses and additional finance charges, are also to be paid, that complainant has not paid the said additional finance charges, bank charges etc. It is further argued by opposite parties that complainant has not paid any excess amount, that a sizable amount is due from the complainant towards penal charges, cheques dishonoured expenses, postal charges, insurance premium etc, that 1^st opposite party has waived a sizable portion of the same, and now claim only Rs. 700/- to be paid being the actual loss to the 1^st opposite party. It is argued by the 1^st opposite party that though the balance amount due is not paid, as a matter of keeping good relation with the hirer, 1^st opposite party returned all records required by the complainant on 16/2/04 on receipt 1^st opposite party has produced the original receipt dated 16/2/04 issued by the complainant. It is the say of the complainant that he has paid the initial payment of Rs. 12,500/- to the dealer, 3^rd opposite party subsequently, he has remitted a total amount of Rs. 27,746/- at the rate of Rs. 726/- per month from 7/12/01 to 7/7/03. There is no material on record to show that complainant has remitted the said amount to 1^st opposite party, even as per, Ext. P2 payment schedule, complainant has to remit only Rs. 15,246/-. As per Ext. D1 invoice dated 12/11/01, the price of the vehicle is Rs. 21,762/-. Complainant has failed to establish the case that the said price includes road tax, insurance registration, interest for installment etc.... Complainant has no case that he has paid any additional amount than what was already admitted and agreed by him as per Ext. P2 payment schedule. Nowhere in the complaint/affidavit is it seen mentioned as to how much money has he availed as loan from the 1^st opposite party, and at what rate of interest, the said loan was availed. In his cross examination, complainant has admitted that two cheques, out of the 20 cheques issued were dishonoured, that he has remitted the said amount after one month from the date of dishonour. Complainant never furnished any receipt showing the payment of insurance amount, road tax etc..in connection with the said vehicle. As per Ext. D2 receipt, complainant has received the original RC book of the vehicle in dispute, two Forms 35 (under Rule 61 (i) of MV Rules) duly signed by the 1^st opposite party to be filed before the RTO for cancellation of Hire Purchase Agreement entered into RC Book, a letter addressed to RTO, duly signed by 1^st opposite party stating no objection to the cancellation of Hire Purchase endorsement in RC Book, and duplicate key of the vehicle concerned, Insurance policy (from M/s. New India Insurance Co.) from 1^st opposite party. As regards prayer B, no further direction is required to be given to 1^st opposite party to return the same to the complainant. As regards other prayers, the onus of proving the case rests with the complainant. Complainant has failed to do so. There is no material to show that the said hire purchase was arranged by the 2^nd opposite party or 3^rd opposite party. 2^nd opposite party has filed affidavit stating that 2^nd opposite party has no information or any involvement regarding the hire purchase agreement alleged to have been entered into between the complainant and 1^st opposite party. In view of the foregoing discussions and evidence available on record, we find complaint has no merits at all which deserves to be dismissed.

In the result, complaint is dismissed. Parties are directed to bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of June, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.138/2004

APPENDIX

I. Complainant's witness:

PW1 : J. Varghese

II. Complainant's documents:

P1 : Copy of the receipt dated 12/11/2001 for Rs.12,500/-.

P2 : “ payment schedule dated 27/11/2001 issued by 1^st opposite party.

P3 : “ advocate notice dated 16/2/2004

P4 : Postal receipt dated 16/2/2004

P5 : Acknowledgement card

III. Opposite parties' witness:

DW1 : NIL

IV. Opposite parties' documents:

D1 : Invoice/bill dated 12/11/2001.

PRESIDENT