KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:203/2009 JUDGMENT DATED:02..06..2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT Malabar Finance Corporation (ASF), No.42 (Old No.102) Gaudiya Mutt Road, Roypettah, Chennai-600 014 . : APPELLANT through its Power of Attorney, Prasanth.K.T. (By Adv:M/s Rakesh Roshan.K & Thushara.V) Vs. 1. Devassia K.P, S/o Poulose, Karakkamala Post, Mananthavady Taluk, Wayanad District. 2. P.M.Santhosh Kumar, : RESPONDENTS Ayswarya Motors, Chungam, Sulthan Batheri Post, Wayanad District. 3. Regional Transport Officer, Wayanad, Civil Station, Kalpatta North-Post Kalpatta, Wayanad District. (R1 by Adv:Sri.Prasad Gandhi) JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT Appellant is the 1st opposite party/Finance Company in CC.89/08 in the file of CDRF, Wayanad. The appellants are under orders to issue clearance certificate with respect to the amount financed. The Forum has directed that in case the 1st opposite party fails to do so the 3rd opposite party, RTO, Wayanad is to cancel the hire purchase endorsement in the RC book. The opposite parties 1 and 2 ie, the Finance Company and the intermediary is directed to pay Rs.2000/- as compensation and Rs.1000/- as cost. The dispute is with respect to the finance advanced for the purchase of a Mahindra Jeep. As per the hire purchase agreement entered into allegedly through the 2nd opposite party the 1st opposite party has advanced a sum of Rs.1,05,000/-. As per the agreement the hire charges are calculated at Rs.50,200/-. As per the agreement the above amount ie Rs.1,55,200/- is to be repaid in 32 instalments starting from 8/2/2004. 20 instalments are to be repaid at the rate of Rs.5000/- per month and the rest 12 instalments at the rate of Rs.4,600/- per month. The last instalment falls on 8/9/2006. For the default of any instalments the lender is to pay an additional finance charges at the rate of 36% per annum from the due date. The case of the complainant is that he had remitted the entire instalments but when approached for the certificate to cancel the endorsement in the RC they insisted for a sum of Rs.35,600/- in addition. After negotiation it was agreed that the matter will be settled on payment of Rs.25,000/-. The above payment was made on 5/5/2007. Thereafter he received a notice dated 6/10/2007 again intimating that the complainant owes a sum of Rs.15,200/-. The evidence adduced consisted of the testimony of PW1, OPW1 and Exts.A1 to A6 and B1 to B4. As noted by the Forum it is seen that the OPW1, the power of attorney holder of the opposite party has admitted that the complainant has paid a sum of Rs.1,40,000/- before 8/9/2006. As per Ext.A2 receipt dated:5/5/2007 the complainant has paid another sum of Rs.25,000/-. Hence the case set up by the complainant appeared genuine. On the other hand, it is contended by the counsel for the appellants that Ext.A2 receipt was not issued by the appellant and that Ext.A5 series of receipts are also not issued by the appellants. But RW1 during cross-examination has admitted that the receipts were issued by the appellant. The appellant has further contended that the 2nd opposite party has nothing to do with the appellant. We find that the above contentions cannot be upheld. The opposite parties are not entitled to blow hot and cold. It is specifically admitted by OPW1 that by 8/9/2006 Rs.1,40,000/- was paid by the complainant. Thereafter, he has paid Rs.25,000/- on 5/5/2007 evidenced by Ext.A2. The above alone would work out to Rs.1,65,000/-. Ext.A4 and A5 series of receipts and Ext.A2 which was admittedly issued by the opposite parties as stated to by OPW1 would workout to Rs.1,61,000/- as noted by the Forum. Ext.B4 produced by the opposite party is only statement/computer print out. It is not even authenticated by anybody. The appellant has not produced the counterfoils of at least Ext.A4 series of receipts the genuineness of which was not disputed. The appellants have also not produced the relevant account books. Even the system of crediting the amounts mentioned by OPW1 appears rather improper. He has stated that amounts paid in piecemeal when it aggregates to the amount of instalment only the amount is credited. We find that Ext.B4 cannot be relied in the absence of supporting evidence. So also the case of the appellant that they have nothing to do with the 2nd opposite party also appears untrue in view of the fact that in many of the payment receipts the name of the 2nd opposite party is noted and it is mentioned as the payment is made through the 2nd opposite party. Of course Ext.B4 mentions a number of delayed payments. The delay is seen calculated on the basis of the days delayed and interest is calculated cumulatively at 36%. As already mentioned, in the absence of supporting documentary evidence no reliance can be placed on Ext.B4. In the circumstances we are not inclined to interfere in the order of the Forum directing closure of the hire purchase dues. All the same the direction to pay compensation and costs is set aside. The decreetal portion of the order of the Forum is modified accordingly. Except with respect to compensation and costs the order of the forum is sustained. In the result the appeal is allowed in part as above. Office will forward the LCR along with the copy of this order to the Forum. JUSTICE K.R.UDAYABHANU: PRESIDENT VL. | 
