O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainants filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

         2. The case of the complainant is stated as follows:  The complainant’s son one Shiju Alex purchased an Apay Passenger Auto Rikshaw KL-62-6738 from opposite party 1 by paying an amount of Rs.1,65,550/- as its price.  At the time of purchase he paid Rs.40,000/- to opposite party 1 as cash and for the remaining amount a loan was sanctioned by opposite party 2 with the help of opposite party 1.  According to the complainant, the monthly instalment of the said loan was Rs.4,910/- and the complainant remitted up to 19^th instalment at opposite party 2’s office.  When the complainant failed to remit the instalment from 20.05.2014 opposite party 2 demanded to return the vehicle to them and as such the complainant entrusted the vehicle to opposite party 2.  According to the complainant, at the time of entrusting the vehicle to opposite party 2 the vehicle had a value of Rs.80,000/- and opposite party 2 sold the vehicle to a stranger for an exorbitant amount.  He further stated that an amount of Rs.34,450/- was eligible by the complainant where as the complainant approached opposite party 2 and opposite party 3 several time and also issued notice to them for the refund of the money.  The non-refund of the above said amount is a deficiency in service on the part of opposite party 1 to 3 and they are liable to the complainant.  It is further contended that by suppressing material fact opposite party 2 filed an arbitration case before the Dist. Court, Pathanamthitta as O.P.(Arb)No.247/14 and the said case is still pending before the court.  It is further stated that opposite party 2 and 3 sold the said vehicle to one Pradeepan for an amount of Rs.1,45,000/-.  Therefore, the complainant is eligible to get the excess amount Rs.65,000/- from opposite party 1 to 3.  The complainant impleaded 4^th opposite party the R.T.O, Ranni, in the party array for furnishing certain document connected to this vehicle.  It is contended that the 1^st opposite party received an excess amount of Rs.1,65,550/- from the complainant as the price of the vehicle.  The opposite party 1 has committed unfair trade practice by receiving such an amount.  It is further contended that opposite party 2 and 3 are also received an excess amount of interest from the complainant hence opposite party 2 and 3 are also liable to the complainant.  Hence the complainant filed this case for the refund of an excess amount Rs.65,000/- from opposite party 1 to opposite party 3, for the refund of excess interest, for the production of document connected to this vehicle from opposite party 1 to 3, compensation, cost etc. etc. 

          3. This Forum peruse the complaint and records before us and issued notice to opposite parties 1 to 4 for their appearance.  All opposite parties are appeared before the Forum and filed their version as follows: 

          4. The version of opposite party 1 is as follows:  According to him, the complaint is not maintainable either in law or on facts.  This opposite party contended that “Yatra Auto Workshop & Engineering Works”  is an automobile workshop run by two persons.  It is contended that neither the complainant nor his son Riju Alex purchased any vehicle from opposite party 1 as alleged.  This opposite party denied all the allegations in Para 3 to 7 of the complaint  since these facts are within the knowledge of the complainant and opposite party Nos. 2 and 3.  It is also contended that there is no hypothecation agreement between the complainant and 1^st opposite party in connection with this vehicle.  It is also denied that the 1^st opposite party received an amount of Rs.1,65,550/- from the complainant as alleged.  Hence this opposite party prayed to dismiss the complaint with cost to them. 

          5. Opposite party 2 and 3 filed their version as follows:  According to them, the case is not maintainable either in law or on fact.  It is admitted that on 17.05.2012 the complainant received an amount of Rs.1,57,000/- from opposite party 2 and 3 for the purchase of the said vehicle along with an arbitration agreement.  The arbitration agreement is signed by the son of the complainant and another person by name Kunjachan on the same day.  As per the agreement, the complainant is liable to remit an amount of Rs.2,50,410/- to them.  When the complainant failed to remit the loan amount the complainant and her sureties produced the said vehicle before this opposite parties and they sold the vehicle for an amount of Rs.80,000/-.  At the time of the above said sale, the complainant remitted only an amount of Rs.93,290/- from the loan amount and the remaining amount was due to the complainant.  According to opposite party 2 and opposite party 3 when calculating the price of the vehicle as Rs.80,000/- plus the remitted instalment Rs.93,290/- the complainant is still due for an amount of Rs.77,120/- to this opposite parties.  It is further contended that the case before this Forum is not maintainable because the same subject matter is in question before the Dist. Court, Pathanamthitta as O.P.(Arb)No.247/14 and this case is also bad for limitation.  Therefore, this opposite parties prayed to dismiss the case with cost to them.

          6. Opposite party 4 is the Joint RTO, Ranni for and on behalf of him the Addl. Govt. Pleader, Adv. R. Satish Kumar filed an objection as follows:  According to opposite party 4, the case is not maintainable either in law or on facts.  It is contended that opposite party 4 is not at all a necessary party for the proceedings and the complainant has not seek any relief from opposite party 4.  It is admitted that the said auto rikshaw bearing Reg.No. KL-626738 was registered on 17.05.2012 in the name of the complainant.  The said auto rikshaw was hypothecated by the 2^nd opposite party and on 15.12.2014 the said hypothecation was cancelled after considering an application in Form No.35 filed by the complainant.  On 16.12.2014, this opposite party sent all details of this vehicle to Devikulam Sub RTO Office along with a clearance certificate.  It is further contended that at present the vehicle is in the name of one Pradeepan, S/o. Periyamuthu, Rajamala, Moonnar, Idukki on 06.01.2015 onwards.  According to this opposite party, the complainant impleaded him in the party array without any sufficient reason and also contended that opposite party 4 complied all proceedings legally.  This opposite party has not committed any deficiency in service as alleged by the complainant.  Hence this opposite party prayed to dismiss the complaint with cost.

            7. On the basis of the complaint, versions and records before us and we framed the following issues:

1. Whether the complaint is maintainable before the Forum?
2.  Whether the opposite parties are committed any deficiency in service as alleged by the complainant?
3.  Regarding relief and costs?

                    8.  In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of her chief examination and she is examined as PW1.  Through PW1 Ext.A1 to A7 were marked.  Ext.A1series (16 Nos.) are the receipts.  Ext.A2 is the passbook.  Ext.A3 is the invoice dated 11.05.2012.  Ext.A4 series are the advocate notice and postal receipt.  Ext.A5 is the reply notice dated 01.01.2015 and postal receipt.  Ext.A6 is the reply notice dated 06.08.2014 and postal receipt.  Ext.A7 is the visiting card.    At the time of cross-examination through PW1 Ext.B1 and B2 were also marked.  Ext.B1is the notice dated 06.08.2014 sent by the complainant to the opposite party’s counsel.  Ext.B2 is the copy of original petition (Arbitration).  At the time of examining PW2, Ext.A8 to A10 were also marked.  Ext.A8 is the agreement dated 28.11.2014.  Ext.A9 is the receipt dated 12.05.2015 for Rs.3,900/- issued by Ceeten Motor Pvt. Ltd., Muvattupuzha in the name of C. Pradeepan.  Ext.A10 is the copy of R.C. Book of Pradeepan.  At the time of examining PW3 Ext.A11 is also marked.  Ext.A11 is the vehicle loan agreement.  When PW4 was examined Ext.A12 to A16 are also marked.  Ext.A12 is the policy of ICICI Lombard General Insurance Co.  Ext.A13 is the complaint and notice of Arb(Ref)No.75/15.  Ext.A14 is the version of arbitration.  Ext.A15 is the objection of arbitration.  Ext.A16 series are the records of Devikulam RTO.  On the other side, DW1 and DW2 are also examined and Ext.B3 marked through DW2.  After the completion of the evidence we heard the learned counsels appearing for complainant and opposite parties. 

          9. Point No.1:- The opposite parties 2 to 4 raised a serious contention to the effect that this case is not maintainable either in law or on facts.  According to them, the complainant is not a consumer as per the definition of C.P. Act, 1986 and also pointed out that there is an arbitration O.P is pending against the petitioner and her sureties with regard to the same subject matter before the Dist. Court, Pathanamthitta as O.P.(Arb)No.247/14.  When we go through the evidence adduced by the complainant and opposite parties it can be seen that the complainant she who paid a consideration for the auto rickshaw and purchased the vehicle from opposite party 1 and also seen that opposite party 2 and 3 financed for the said purchase.  When considering this fact we can come to a conclusion that the complainant is a consumer of opposite party 1 to 3 and opposite party 1 to 3 are service providers.  The next contention is that an arbitration O.P is pending against this complainant and her sureties before the Dist. Court, Pathanamthitta.  It is true that an arbitration O.P is still pending before the Dist. Court, Pathanamthitta.  In that case, the opposite party 2 is the petitioner who filed the said arbitration O.P to realise a sum of excess amount due from the complainant.  We are not bound to examine the merit of that arbitration O.P at this time.  But at the same time, we have to consider the sustainability of opposite party 1 to opposite party 3’s objection with regard to this aspect.  We refer a decision reported in CPJ 2016 Volume 3 Page 67 pronounced by Hon’ble Chandigud SDRC had taken a view to the effect that if an arbitration is pending a consumer case can be maintainable.  It is true that this Forum has to examine if there is any deficiency in service on the side of the opposite parties.  In order to arrive a conclusion we have to go in details with regard to this issue.  However, we find the Point No.1 in favour of the complainant. 

          10. Point Nos.2 & 3:- For the sake of convenience, we would like to consider Point No.2 and 3 together.  The Point to be considered is whether the opposite party financier committed any deficiency in service against the complainant.  When we appreciate the evidence adduced by PW1, it is clear that the complainant only remitted 19 instalments and from 20.05.2014 she did not remit any instalment to opposite party 2 and 3.  Opposite party 2 and 3 are also has the same view in respect of the payment of instalment and the default date of payment.  PW1 deposed that due to some reasons she was unable to remit the instalment as per the agreement so that she sold the vehicle to opposite party 2 for settling the loan account.  The entrustment of the vehicle with opposite party 2 is also admitted by opposite party 2 and 3 through their version and through their oral evidence before us as DW1 and DW2. 

            11. In order to prove the case of the complainant, the complainant filed 16 documents before us.  Ext.A1 to A3 shows that the complainant had a vehicle loan arrangement with 2^nd and 3^rd opposite parties and she paid about 16 instalments by receipt and also proves that the vehicle is having a worth of Rs.1,65,550/- as per the vehicle invoice of opposite party 3.  Ext.A4 to A6(a) are notices issued to opposite parties and its postal receipts.  These facts are not disputed by the other side.  Ext.A7 is a visiting card issued by 1^st opposite party to the complainant.  At the time of examining PW1 in cross Ext.B1 to B3 documents also marked.  This Ext.B1 to B3 shows that there is an arbitration O.P (O.P.(Arb)No.247/14) is pending before the Dist. Court, Pathanamthitta against the complainant and her son and another Joy Kunjachan as opposite parties 1 to 3.  When we peruse Ext.B1, we can see that the complainant admitted the transaction the entrustment of the vehicle with opposite party 2 and 3 and also seen that she has not disputed the rate of interest or any unfair trade practice on the side of opposite parties 2 and 3.  Her (the complainant) demand is only for getting Rs.20,000/- from opposite party 2 and 3.  The complainant not disputed the genuineness of this letter or authenticity.  Though the complainant pleaded in the complaint to the effect that opposite parties 2 and 3 charged more interest from the complainant and by selling the vehicle the opposite parties 2 and 3 received excess amount, these facts are not disputed when marking Ext.B1. If so, the complainant (PW1) would have to raise these facts at the time of filing a reply to the arbitrator or even at the time of marking Ext.B1.  In the light of these findings we are not finding any kind of deficiency in service or unfair trade practice against opposite parties 2 and 3 with regard to the charging of interest or calculation of overdue interest etc.  The next question to be considered is whether opposite parties 2 and 3 sold the vehicle for an amount of Rs.1,45,000/- as per Ext.A8.  It is true that as per Ext.A8, PW2 one Pradeepan purchased this Ape Passenger Vehicle on 28.11.2014 for an amount of Rs.1,55,000/- from one Reji, S/o. Meeran, Adimali in Devikulam Taluk.  In order to prove the case of the complainant, complainant examined the said Pradeepan as PW2.  When we look into the deposition of PW2, it can be seen that he relied in Ext.A8 and he also availed another vehicle loan for the said vehicle from another financier.  It is also proved that the said vehicle is transferred to him and the R.C. Book is in his name.  These facts can be proved by Ext.A8 to A10.  It is also to be noted that at the time of transferring the vehicle in favour of PW2 Pradeepan, the complainant Leelamma was the registered owner of the vehicle.  It is to be noted that opposite party 1 has not cross-examined PW2.  But at the same time, for the cross-examination of opposite party 2 and 3 he answered, “2þഉം, 3-ഉം എതൃകക്ഷിള് തമ്മിലുള്ള ഇടപാടുകളെക്കുറിച്ച് എനിക്കറിയില്ല. ഹർജ്ജിക്കാരിയും   , 2þഉം, 3-ഉം എതൃകക്ഷികളുമായി നടന്ന business dealings എനിക്കറിയില്ല” and for the cross of opposite party 4 he supported the transfer procedure of opposite party 4 in favour of his name and he has no objection against opposite party 4.  It is to see that the complainant is mainly depending Ext.A8 and deposition of PW2 to show that at the time of selling the vehicle to PW2 the opposite party 2 and 3 had received an amount of Rs.1,45,000/- from PW2.  It is so interesting to see that when we go through the chief examination of PW2 he has not adduced any evidence in favour of the complainant with regard to the relationship of this vehicle with opposite party 2 and 3.  PW2 deposed, “KL-62-6738þmw നമ്പർ autorickshaw ഞാൻ വാങ്ങിയതാണ്.  ഞാൻ ടി വാഹനം അടിമാലി Autos എന്ന സ്ഥാപനത്തിൽ നിന്നാണ് വാങ്ങിയിട്ടുള്ളത് ” and he also confirm Ext.A8 document.  When we refer the deposition of PW2 or even Ext.A8 the role of opposite party 2 and 3 has not been seen anywhere.  If the above said Adimaly Auto Company purchased the vehicle from opposite party 2 and opposite party 3 or even opposite party 2 and 3 entrusted the vehicle to Adimaly Auto Company what prevented the complainant PW1 to disclose all that fact before the Forum.  Therefore, we are not believing the reliability of Ext.A8 against opposite party 2 and opposite party 3.  The complainant examined PW3 to prove that PW2 Pradeepan availed a vehicle loan from PW3.  On the basis of the above discussion and finding, there is no need of giving any importance to the evidence of PW3 in this case.  When we refer Ext.A9 and Ext.A10 we can see that PW2 availed finance from Ceeten Motor Finance Pvt. Ltd. on 12.05 2015 and also proved that the vehicle bearing Reg.No.KL-62-6738 is in the name of PW2 as per Ext.A10.  Ext.A11 also shows that PW2 applied for a loan to the above said Ceeten Motor Finance Ltd. on 13.01.2015.  Ext.A11 only shows that a General Insurance Policy was issued to the complainant PW1 by ICICI Lombard General Insurance Company on 20.05.2012.  PW4 is the son of the complainant, he who filed a proof affidavit in lieu of chief examination and through him Ext.A12 to A16 series were also marked.  Ext.A12 is a policy of ICICI Lombard General Insurance Company, which was issued in favour of PW1 on 28.05.2012.  Ext.A13 to A15 shows that there was an arbitration proceedings pending before the arbitrator Adv. Sabu.S at Ernakulam for the refund of an amount of Rs.88,586/- from the complainant and for other reliefs.  It is also shows that as per Ext.A14 the complainant appeared before the arbitrator and filed her written statement before the arbitrator.  Ext.A15 also shows that Joy Kunjachan one of the surety of the complainant filed his objection before Dist. Court, Pathanamthitta in O.P.(Arb)No.247/14.  When we consider the deficiency in service of the opposite parties, these documents are not so material to arrive a conclusion.  It is true that as per Ext.A13 to A15 we can see that an arbitration case is also pending against the complainant and her sureties with regard to the loan transaction and it remittance etc.  The complainant produced and marked another document as Ext.A16, which shows that PW2 is the registered owner of the vehicle in question and also proves that the above stated Ceeten Motor Finance Pvt. Ltd., Moovattupuzha is financed for this vehicle. A copy of the transfer application of ownership of this vehicle in Form No.29 and 30 are also enclosed which are marked as Ext.A16 series. 

            12. On the other side as we discussed earlier, opposite party 2 examined DW1 and DW2 in favour of them.  When DW1 is cross-examined the learned counsel for the complainant put several questions with regard to the interest rate and the standing orders of Reserve Bank etc.  As discussed earlier, if there is an admission on the side of PW1 as per Ext.B1 there is no need of going to the details with regard to the charging of interest etc. at this stage.  Though the counsel elaborately cross-examined DW1, nothing brought out to see that opposite party 2 and opposite party 3 received an amount of Rs.1,45,000/- as per Ext.A8.  He deposed in cross, “ഈ വാഹനം ഞങ്ങള്ക്ക് സറണ്ടർ ചെയ്തു. ഞങ്ങള് വിറ്റു. അത്  third party വഴിയല്ല വിറ്റത്. ഇപ്രകാരം surrender ചെയ്യുന്ന  വാഹനങ്ങള് ഞങ്ങളുടെ convenience പ്രകാരമാണ് വിൽക്കുക.  Ext.A16 ഞങ്ങള് വാഹനം നൽകിയതുമായി ബന്ധപ്പെട്ടതാണ്.  ആയതിൽ  sign  ചെയ്തത് ഹർജ്ജിക്കാരിയാണ് v.  Ext.A12þൽ പറഞ്ഞിട്ടുള്ള  market value എനിക്കറിയില്ല..  Ext.A8 ഞങ്ങളുമായി ബന്ധപ്പെട്ടതല്ല.  എനിക്ക്  ഞങ്ങള് വാഹനം വിറ്റത് ആർക്കെന്ന് രേഖ നോക്കിയാലേ പറയാൻ പറ്റൂ.   1,40,000/þ രൂപയ്ക്ക്  വിറ്റു. എന്നത് ശരിയല്ല”.   On the basis of the above deposition of DW1, it can be inferred  that the purchase of the vehicle by PW2 had no connection with opposite party 2 and 3.  The complainant failed to prove that to whom opposite party 2 and 3 sold the vehicle and what was the price of that sale.  In the absence of this material evidence we are not in a position to ascertain what was the actual sale price of the vehicle when it was sold by opposite party 2 and 3.  It is admitted that the learned counsel appearing for the complainant has taken much effort to prove the complainant’s case.  But the complainant failed to adduce positive evidence to answer the issue in question.  Therefore, the complainant is not succeed to prove any deficiency in service or unfair trade practice against opposite party 2 and 3.  In the light of the version filed by opposite party 4 and referring Ext.A16 series we find that opposite party 4 is also committed any deficiency in service or unfair trade practice against the complainant.  We also find that opposite party 1 in this case is the dealer of the vehicle, as the dealer of the vehicle he is also not committed any deficiency in service against the complainant as alleged.  Hence Point No.2 and 3 found against the complainant. 

          13. In the result, we pass the following orders:

                   14. The complaint is dismissed.  No order of cost. 

                    Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 8^th day of May, 2017.

                                                                                            (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                         (President)

Smt. Sheela Jacob (Member)               :      (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Leelamma

PW2  :  Pradeepan. P

PW3  :  K.J. John

PW4  :  Shiju Alex 

Exhibits marked on the side of the complainant:

A1series :  Receipts (16 Nos.) 

A2 :  Passbook. 

A3 :  Invoice dated 11.05.2012. 

A4 : Advocate notice and postal receipt. 

A5 :  Reply notice dated 01.01.2015 and postal receipt. 

A6 : Reply notice dated 06.08.2014 and postal receipt. 

A7 : Visiting card.   

A8 :  Agreement dated 28.11.2014. 

A9 : Receipt dated 12.05.2015 for Rs.3,900/- issued by Ceeten Motor Pvt. Ltd.,  

       Muvattupuzha. 

A10 :  Copy of R.C. Book of Pradeepan. 

A11 :  Vehicle loan agreement. 

A12 :  Policy of ICICI Lombard General Insurance Co. 

A13 : Complaint and notice of Arb(Ref)No.75/15. 

A14 :  Version of arbitration. 

A15 : Objection of arbitration. 

A16 series :  Records of Devikulam RTO.              

Witness examined on the side of the opposite parties:

DW1  :  Wilson George

DW2  :  Mariamma

Exhibits marked on the side of the opposite parties:

B1  :  Notice dated 06.08.2014 sent by the complainant to the

         opposite party’s counsel. 

B2  : Copy of original petition (Arbitration)

                                                                                         (By Order)

Copy to:- (1) Leelamma, Kallumpurathu Veedu, Uthimoodu Muri,

                    Ranni.

2. Ayoob/Hashim, Yathra Autos, Opp. General Hospital,

          D.D.R.C Road, Pathanamthitta.

     (3) S.M.L. Finance Ltd., Branch Office, Puthuparampil Buildings,

          Aban Junction, Pathanamthitta.

(4) Managing Director, S.M.L. Finance Ltd., Bathani Complex,

          Trisur Road, Kunnamkulam – 680 503.

     (6) The R.T.O, Ranny Sub Regional Transport Authority, Ranny.

              (5) The Stock File.