By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to transfer the RC of the vehicle in to his name and to cancel the Hypothecation endorsement by receiving the installment and return the blank cheque and to pay cost and compensation due to the deficiency of service from the part of opposite parties.

2. The complainant is a driver by avocation and the 1^st opposite party is known to him for last 10 years. The 1^st opposite party having the business of Vehicle finance and sale of used vehicles. The 1^st opposite party approached the complainant and offered that a used jeep with good running condition is available in his custody for sale and he will arrange vehicle loan from 2^ndopposite party. The complainant inspected the vehicle from the premises of opposite party and purchased the vehicle bearing Registration No. KL-12-A-4138,1999 model Mahindra & Mahindra jeep on 12.06.2010 from the 1^st opposite party for an amount of Rs.2,50,000/-. On the same day the complainant paid an amount of Rs.1,00,000/- lumpsom to the 1st opposite party as the initial payment towards the purchase of the said Vehicle and for the balance amount the complainant entered into a hire purchase agreement with 2nd opposite party, undertaking to pay the amount with interest in 30 equal monthly installments of Rs.7,600/- each to the 2^nd opposite party through 1^st opposite party, as per the chart issued by the 2^nd opposite party amount totaling to Rs.2,28,000/-.

3. At the time of purchase of the said vehicle the opposite parties have assured complainant that the vehicle was free from all encumbrances and they have all valid legal authority to sell the vehicle to the complainant on hire purchase basis as such on 12.06.2010 the 1^st opposite party received a sum of Rs.1,00,000/- from the complainant and handed over the vehicle to the complainant without original RC. The opposite parties had further assured that the RC of the vehicle will transfer in the name of the Complainant and original RC will give within two months from the date of Purchase. As a security to the hire purchase agreement the complainant given two signed blank cheques and one signed blank stamp paper to the opposite parties as demanded by them. Thereafter the complainant began to use the vehicle without any interruption. The Complainant had purchased the vehicle on hire purchase basis for his self employment purpose and his family is mainly depending upon the income derived out of the use of the said vehicle.

4. The complainant paid three installments together on 09.10.2010, after that the complainant made default in repayment due to the non handing over of the original RC and non-transfer of RC in the name of complainant by the opposite parties as promised, RC is still continuing in the name of another person called Vargheese, s/o Mathai, Omakkara house, Poothady. While so in the month of August 2011 the Agent of 2^nd opposite party trying to seize the vehicle from complainant's possession, The complainant approach the opposite parties for closing hire purchase loan and to transfer of RC. The opposite parties demanded more than Two lakhs rupees for 15 defaulted installments, The complainant was always ready and willing to pay installments and lawful penal charges. As per the chart issued by the 2nd opposite party the tenable date of the installments is on 12.12.2012. On enquiry the complainant came to know that the said vehicle have another HP agreement with the above said Vargheese, S/o. Mathai for an amount of Rs.1,50,000/- and the date of that HP agreement is the same day on which the complainant purchase the vehicle, which is also defaulted , the installments paid by complainant was also credited wrongly in the account of earlier owner. At the time of sale of the said vehicle to the complainant there is another encumbrance on the said vehicle, so the HP agreement with the complainant is vitiated by fraud and is ab-initio void.

5. The above acts of the opposite parties are unfair trade practice and deficiency of service. The complainant have suffered huge loss, mental agony and sufferings due to the above acts of the opposite parties. The complainant is entitled either to get back the amount which he has already paid to the opposite parties by receiving the vehicle or get the original of the RC in the name of the complainant by closing and canceling the HP agreement. The complainant is also to get back the two signed blank cheques and signed blanked stamp paper from opposite parties. The opposite parties are liable to pay an amount of Rs.25,000/- as compensation to the complainant for the loss and mental agony sustained to him. The cause of action arose at Sulthan Bathery on 12.06.2010 when the vehicle bearing number KL 12 A 4138 was sold and delivered to the complainant on hire purchase agreement by opposite parties and in August 2011 when the complainant know about the Dual HP agreement at Sulthan Bathery within the jurisdiction of this Honorable Forum. Even though the complainant purchased the above said vehicle for his livelihood as a taxi driver, he could not derive any income by using the above said vehicle as taxi for the last one year and he lossed an amount of Rs.50,000/- as loss due to the above said acts of the opposite parties. The opposite parties are liable to pay the same. Hence prayed before the Forum to transfer the RC of the vehicle in to his name and to cancel the Hypothecation endorsement by receiving the installment and return the blank cheque and to pay cost and compensation due to the deficiency of service from the part of opposite parties.

6. Notice were served to opposite parties and opposite parties filed version and opposite party No.1 stated that the 1^st opposite party is denying the entire averments in the complaint except those that are specifically admitted hereunder. The 1st opposite party is not related to the proceedings narrated in the complaint and the 1st opposite party is an auto consultant in Sultan Bathery and the complainant is not known to this opposite party. The alleged transaction in the 1st paragraph is not known to this opposite party. As far as the knowledge of this opposite party the vehicle was owned by one Varghese and the complainant purchased the vehicle from Varghese and availed finance from the 2nd opposite party through the agent of 2nd opposite party. This opposite party not received any amount from the complainant and no reason for giving assurance to the complainant. This opposite party not received any amount from the complainant. The complainant is not sure that the cheques are issued to which opposite parties and these averment are part of the experiments to delay the payment of finance amount. This opposite party is not a party in the proceedings and the complainant is bad for misjointer of the parties. From the petition itself the complainant admitted that there is default in installments and ready to pay the installments and there is no deficiency of service from the part of this opposite parties and to legitimize the gross negligence on the part of the complainant filed this petition to protract the payment of installments. The complainant is not alleged any deficiency of service or unfair trade practice from the side of 1^st opposite party and from the reading of complaint it is understood that the complainant committed mistakes. The cause of action alleged in the complainant is not true and false and fabricated. The complainant is not entitled for the prayers sought in the petition from this opposite party. Hence it is humbly prayed that the Honorable forum may be pleased to dismiss the petition with the cost and compensation to this opposite party.

7. Opposite party No.2 stated in the version that the 2nd opposite party denying the entire averments in the complaint except those that are specifically admitted hereunder. The averment in 1st paragraph is not true the complainant is a businessman and also having agriculture cultivator in Karnataka state and this opposite party is not known to the 1st opposite party and it is heard from the agent of this opposite party that the 1st opposite party is an auto consultant based in sulthan bathery, rest of the allegation is false and fabricated. The vehicle bearing No. KL 12 A 4138 Mahindra and Mahindra jeep 1999 model had finance with this opposite party and the R.C. owner of the vehicle Mr.Varghese introduced the complainant to this opposite party and availed finance for the vehicle and installment facility is provided to the complainant as per his request with an assurance that the complainant will pay the installments in time without any default. Rest of the allegations in the complainant is false and fabricated. It is an astonishing one is that the value of 1999 model jeep is Rs.2,50,000/- is false and an average rate of good running condition vehicle of this model in 2010 will come around Rs.2,00,000/- and it is evident that the complainant depicted a story to protract the payment of loan amount, interest and costs. It is true that the chart issued by this opposite party is of Rs.2,28,000/- and it is strictly on the basis of payment of installment in due time. The averment in 2nd paragraph regarding the assurance given by the opposite parties, encumbrance, and transfer of R.C is false and lie to the core. The R.C. owner and complainant are residing in Pulpally area and the complainant approached this opposite party for finance to the vehicle and hire purchase scheme for Rs.2,28,000/-. This opposite party understood that the R.C. owner and hirer of the vehicle of this opposite party Mr. Varghese sold out the vehicle to the complainant with the consent of this opposite party and approached this opposite party for transfer of vehicle and finance in the name of complainant. This opposite party issued the Form 29 and 30 duly signed and stamped and entrusted one agent to get signature of complainant as well as the R.C. owner and entrust the RTO, Wayanad with the copy of identity card of the complainant. Then it is understood that the complainant did not signed the prescribed form and not provide the copy of identity card to transfer the R.C and finance in the name of complainant. The averment regarding the conditions of the vehicle and encumbrance in the vehicle is not known to this opposite party. It is a story depicted by the complainant to misguide the honorable forum that after purchase of vehicle this opposite party assured the condition and encumbrance of the vehicle. It is true that the complainant approached this opposite party for finance and this opposite party directed the complainant to approach the agent Mr.Basheer in Sulthan bathery and provided hire finance facility. Since the R.C owner is a hirer of the vehicle and prompt in payment this opposite party provided loan facility to the complainant. The averment of handed over 2 blank cheques and one stamp paper is utter lie and the complainant is submitting false and fabricated statement with knowledge that the statements are false. This opposite party provided loan to the complainant on the guarantee of one Mr. Rameshan and also with recommendation of the R.C. owner of the vehicle.

8. The averment in 3rd paragraph regarding the payment of installment is true, but there is a delay of 4 months in 1st payment and rest of the installment are not paid by the complainant. Then the complainant settled the accounts with the agent of this opposite party and issued a cheque for Rs.1,50,000/-as part payment and it was dishonored due to insufficient balance in the account of complainant. The contention of issue blank cheques to this opposite party is to misguide the honorable Forum. The complainant purchased the vehicle from the said Varghese, his neighbor and availed finance from this opposite party, but the default in payments due to the non-transfer of R.C. is unbelievable. This opposite party issued duly signed and stamped form 29 and 30 with the chart to the complainant and after that this opposite party issued another form No.29 and 30 and entrusted my agent in sultan Bathery, but the complainant has not signed the prescribed form and not issued his copy of identity card to transfer the finance. The only reason for delay in transferring the R.C. and finance is due to the gross negligence on the part of the complainant and the complainant has no locus standi to file this complaint before the Honorable forum. The allegation of another chart issued by this opposite party on the same period is false and there was an installment chart against this vehicle at the time of loan availed by the R.C. owner. The averment of another encumbrance in the vehicle at the time of sale is an experiment to misguide the honorable forum and the complainant admitted the encumbrance and executed an agreement to that effect. Meantime the complainant settled the disputes in accounts and issued a cheque for Rs.1,50,000/- as part payment towards the loan account. The averment in 4th paragraph regarding the unfair trade practice and deficiency service is to camouflage the negligence on the part of the complainant and protract the payment of the installments. There is unfair trade practice on the part of the complainant only and to legitimize the chronic default of 15 months the complainant filed the complaint, by misusing the process of Honorable forum. Meantime the complainant issued a cheque without sufficient balance in the account of the complainant. This opposite party had loss and damages due to the unfair trade practice of complainant and the allegation and claim of cheques is to bargain the finance amount entitled by this opposite party. This opposite party is entitled for compensation from the complainant and the complainant has no locus standi to file suit and petitions against this opposite party. The cause of action alleged in the complaint is false and fabricated. The complainant is liable to pay the pending installment with interest and costs. The prayers sought in the complaint are not entitled by the complainant. The complainant is doing an experiment to restrain the complainant from initiating legal proceedings legally entitled by this opposite party. Hence it is humbly prayed that the Honorable forum may be pleased to upheld the contention of this opposite party and dismiss the petition with cost and compensation.

9. The complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 documents are marked. Ext.A1 is the copy of RC of the vehicle bearing No. KL 12 A 4138. Ext.A2 is the copy of installment chart issued by the opposite party No.2 and Ext.A3 is the Seizing letter issued by the opposite party No.2 and Ext.A4 is the Notice issued by the opposite party No.2 to one Varghese. Ext.A5 is the copy of chart issued by the opposite party No.2 to Mr. Varghese. From the side of opposite parties both opposite parties filed affidavit and stated as stated in the version and OPW1, OPW2 and OPW3 were examined and Ext.B1 to B9 marked. Ext.B1 is the Ameen report in I.A229/2012 in OS 23/2012 of the Honorable Sub Court, Sulthan Bathery. Ext.B2 is the Hire Purchase Agreement. Ext.B3 is the Receipt of Rs.1,50,000/- by complainant from opposite party No.2. Ext.B4 is the photocopy of cheque for Rs.1,50,000/- issued by the complainant to one Basheer who is the Power of Attorney Holder of opposite party No.2. Ext.B5 is the copy of complaint filed before the JFCM II Sulthan Bathery by the opposite party No.2 against the complainant. Ext.B6 is the Agreement Chart issued by the opposite party No.2 to one Varghese. Ext.B7 is the Special Power of Attorney given by the opposite party No.2 to Mr. K. M. Basheer. Ext.B8 is the copy of deposition by the complainant in ST 598/2012 in JFCM II, Sulthan Bathery. Ext.B9 is the copy of statement of Accounts produced by the opposite party No.2 in the name of complainant.

10. On consider the complaint, version, affidavit of all the parties and on perusal of all the documents produced by all the parties, the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

11. Point No.1:- On considering the complaint, version and affidavits of all the parties and on perusal of all the documents. We are in the opinion that the opposite party No.1 has sold the said vehicle to the complainant which was in the name of one Mr. Varghese and the finance was arranged with opposite party No.2 and not provided further service to transfer the vehicle in to the name of complainant for three months. Thereafter when the follow-ups were taken by the opposite party No.1 and 2 the complainant was not provided the required service with his identity proof and thereafter not paid the installments also. Thereafter disputes arised and on one settlement the complainant caused to gave a cheque for Rs.1,50,000/- to the opposite party No.2 and it was dishonored and against this the ST case No.598/2012 is pending before the Judicial First class Magistrate II, Sulthan Bathery. Anyway in the first part the opposite party No.1 and 2 made deficiency of service and in the second part the complainant not performed his duty. Any how, the complainant is ready and willing to pay the due installments as per chart and lawful penal charges. The Point No.1 is found accordingly.

12. Point No.2:- Since the Point No.1 is found against all the parties no order as to cost and compensation.

In the result, the complaint is partly allowed and the complainant is directed to pay the arrear amount of Rs.1,27,200/- (ie 1,50,000 -22,800 which was paid by the complainant on 09.10.2010) with 18% interest from 09.10.2010 till payment to the opposite party No.2. And also directed to clear all the tax arrears and dues if any in the account of said transaction. On complying this order by the complainant, opposite party No.1 and 2 is directed to make all arrangement to transfer the said vehicle (KL 12 A 4138) in to the name of complainant without any encumbrance and handover the RC to the complainant, and opposite party No.2 is also directed to withdraw the case ST No.598/2012 which is pending before the Judicial First Class Magistrate II, Sulthan Bathery and also directed not to initiate any further proceedings with any documents pertaining to the above Hypothecation Agreement. The complainant is directed to comply the Order within one month from the date of receipt of this Order and opposite party No.1 and 2 is directed to comply their part within 20 days after complying the order by the complainant.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 16^th day of April 2015.

Date of Filing:29.03.2012. PRESIDENT :Sd/-

MEMBER :Sd/-

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PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Sajeevan. Complainant.

Witness for the Opposite Parties:-

OPW1. Basheer. Finance.

OPW2. Varghese. Broker.

OPW3. Sajeevan. Auto Consultant.

Exhibits for the complainant:

A1. Copy of Registration Certificate

A2. copy of Installment Chart.

A3. Copy of Seizing Letter. dt:03.08.2011.

A4. Copy of Notice.

A5. Copy of Chart.

Exhibits for the opposite parties:-

B1. Copy of Ameen Report.

B2. Hire Purchase Agreement. dt:12.06.2010.

B3. Voucher. dt:12.06.2010.

B4. Copy of Cheque. dt:25.03.2012.

B5. Copy of complaint filed before JFCM II, Sulthan Bathery.

B6. Chart.

B7. Copy of Special Power of Attorney.

B8. Copy of Deposition.

B9. Copy of Statement of Account.

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PRESIDENT, CDRF, WAYANAD.

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