IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 23rd day of March, 2011. Present : Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.174/09 (Filed on 23.12.2009) Between: K. Sadasivan Pillai, aged 50, S/o. Krishna Pillai, Kannanghat House, Kaippuzha Muri, Kulanada Village. (M.K. Suresh Kumar) .... Complainant. And: 1. The General Manager, Sreeram Transport Finance- Company Ltd., Administrative Office, No.101 – 105, Shiv Chambers, First Floor, B-Wing, Sector-II, CBD Belapur, Navi Mumbai – 400 614. 2. Sreeram Transport Finance- Company Ltd., represented by SBU Head, 4th Floor, Capital Centre, Opposite- Govt. Secretariat, M.G. Road, Thiruvanananthapuram – 695 001. 3. Sreeram Transport Finance Company Ltd., represented by its Branch Manager, Nandiyathu- Plaza, College Junction, Pathanamthitta. (By Adv. K.N. Sujith) .... Opposite parties. O R D E RSri. N.Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Facts of the case in brief is as follows: Complainant is the R.C. owner of Ashok Leyland Bus bearing Reg.No.KL-3M/4473. Complainant entered into an hire purchase agreement with 3rd opposite party and received ` 7,50,000 as loan. 2nd opposite party is the Sreeram Transport Finance Company Ltd. and 1st opposite party is the General Manager of the said company. As per the agreement, complainant has to pay ` 8,96,875.04, including the finance charge of ` 1,46,875.04. The said amount has to be paid within the period from 9.6.05 to 9.5.09 by 48 monthly instalments. Moreover complainant has to pay ` 93,000 to opposite parties as insurance charge. 3. Complainant had paid ` 7,55,785 as monthly instalment without any default. On 8.8.2008 he transferred the said vehicle to one Prithipal and on the same day he remitted ` 3,00,000 to opposite parties. Moreover they received an amount of ` 14,500 as insurance claims. The total amount received by them is calculated as ` 10,70,285. 4. Complainant was prompt in remitting the Hire Purchase instalments. Opposite parties has to get ` 9,89,875 including vehicle insurance from complainant. But they received ` 10,70,285 from complainant. Therefore they unlawfully realised an excess amount of ` 80,410 from the complainant. This caused loss to complainant and unlawful gain to opposite parties. 5. Even though opposite parties realised excess amount, they failed to handover the clearance certificate and account extract. Therefore complainant connot change the R.C. ownership and to change the route permit. This caused due to opposite parties deficiency in service. Hence this complaint for getting clearance certificate and for the return of excess amount of `80,410 with compensation. 6. Opposite parties entered appearance and filed their version stating that complaint is not maintainable either in law or on facts. According to them, the complaint is filed without observing many legal and procedural requirements. This complaint should attach or accompany with a statement of accounts pertaining to the claim. In this case, no such statement of account is attached. Moreover, it is also bad with the defect of non-joinder of necessary parties. The complainant still owes certain amount to the opposite parties and he is not entitled to get termination letter as such. The opposite parties had not received any excess amount from the complainant. The opposite parties cannot give the clearance certificate to the complainant, which as per law is to be issued from regional transport office. 7. There is a subsisting arbitration agreement in between the complainant and the opposite parties. Therefore, this Forum lacks jurisdiction to entertain the subject matter of this complaint, which is squarely, comes under the purview of dispute under the Arbitration and Conciliation Act. So the matter be referred to Arbitration u/s. 8 of the Arbitration and Concellation Act. Moreover, the complainant is not a consumer to the opposite parties, hence the provisions of Consumer Protection Act is not applicable in this dispute. 8. Complainant admitted that, he had sold the vehicle to another person named Prithipal, hence he had breached the terms of agreement. If it is sold to another person then the question arises to whom the termination letter has to be issued. The complainant had taken over the loan availed by another person named Omar Farooq and there was no first hand loan transaction in between the complainant and opposite parties. This fact is suppressed by the complainant in his complaint. Opposite parties also denied the mode and quantity of repayment stated in the complaint. Complainant has not repaid the entire loan amount to opposite parties. The extract will be given once he makes a demand before the opposite parties. No hardship is caused to the complainant due to the faults of the opposite parties. 9. According to opposite parties, complainant is not a consumer instead; he is a creditor or hirer. Hence no consumer case will stand against the opposite parties and the complaint is liable to be dismissed. Complainant is also aware the fact that some amount is still due to the opposite parties in connection with his loan transaction. Unless and until that amount is paid, the termination letter cannot be given to him. According to opposite parties, the loan was taken over by another, which is mentioned, in the original agreement between the parties. So the change in circumstances warrants additional payments also. The opposite parties never accepted any excess amount from the complainant and therefore he cannot claim any amount from the opposite parties. Originally the loan agreement was entered by one Omar Farooq on 23.3.2005 vide Agreement No.STFC/PL/LPLPTA0029023. As per the said agreement the said Omar Farooq availed a loan of ` 8,50,000 for the purchase of the vehicle No.KL.3-M 4473. The total agreed value of the said loan was ` 11,95,000 which includes financial charges of ` 2,97,000 also. The said Omar Farooq agreed to pay the instalments from 23.05.2005 to 23.03.2010. Subsequently, Omar Farooq has remitted an amount of ` 1,39,444. During the period of the said loan, the said loan was taken over by the complainant from Omar Farooq by executing a fresh agreement in favour of the company. He had undertaken all the rights and liabilities of Omar Farooq by executing a fresh agreement in favour of the company. He had undertaken all the rights and liabilities of Omar Farooq as per the said agreement and agreed to repay the balance amount of ` 10,56,056 (` 11,95,000 – ` 1,39,444) Omar Farooq remitted ` 1,18,994 towards the principal amount and the principal outstanding is ` 7,37,000 and interest outstanding is ` 3,25,056. The opposite parties have nothing to do with the clearance certificate as it is to be issued by the concerned R.T.O. What the opposite parties can do is to issue the termination letter. Complainant has not cleared all the amounts as agreed upon at the time of agreement. Without prejudice to the averments, it is also submitted that it is not clear from the complaint in whose favour the termination letter is to be issued. There is no cause of action against opposite parties. None of the relief therein are allowable. Hence opposite parties canvassed for the dismissal of the complaint. 10. From the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before the Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Costs? 11. Evidence of the complaint consists of the proof affidavit filed by the complainant along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A3 series. 12. Evidence of opposite parties consists of the proof affidavit filed by the 3rd opposite party along with one document. He was examined as DW1 and the document produced is marked as Ext.B1. After closure of the evidence, both parties were heard. 13. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 to A3 series. Ext.A1 is the agreement chart issued by the opposite parties. Ext.A2 is the payment details of complainant issued by opposite parties. Ext.A3 to A3(k) are the payment receipt issued by the opposite parties. 14. In order to prove the opposite parties contention, 3rd opposite party filed proof affidavit along with one document. He was examined as DW1 and the document produced is marked as Ext.B1. Ext.B1 is the statement of account relating to the transaction with the complainant. 15. On the basis of the contentions and averments of the parties, we have perused the entire materials on record. Complainant’s case is that opposite parties has not issued the clearance certificate even though he had repaid the entire loan amount and excess amount. Hence this complaint for getting clearance certificate, excess amount paid and for compensation. Opposite parties contention is that the complainant is not a consumer. He has taken over the loan availed by another person. He still owes certain amount and therefore he is not entitled to get termination letter. Moreover they had not received any excess amount as alleged. 16. On a perusal of Ext.A1, it is revealed that complainant has to pay ` 8,96,875-04 by way of 48 instalments. Ext.A2 is the Hirer Ledger Details as on 30-6-2008, which pertains to the details of payment from 23-05-2005 to 27-06-2008. The total amount as per Ext.A2 is ` 8,55,785. Ext.A2 also shows the details regarding the name of the hirer vehicle No. etc. (first page of Ext.A2). Exts.A3 to A3(k) are 12 instalment receipts issued by opposite parties to the complainant. 17. It is pertinent to note that during the course of trial, the complainant filed I.A.129/2010 for directing the opposite parties to produce the account extract as per Hire Purchase Agreement pertaining to the vehicle No.KL-3M/4473 Ashok Leyland bus. But they filed objection stating that the complainant took over the loan availed by one Omar Farooq. The said loan is now stand closed and the entry regarding the loan has been erased from the computer. No manual entry regarding the loan remittance is now kept in the office of second opposite party. Therefore, they are unable to produce the documents. Hence the said I.A. was closed. But during the opposite parties’ evidence stage, they produced Ext.B1 extract. But they have no explanation with regard to the averments stated in the objection to I.A. 129/10 and with regard to Ext.B1. 18. As per Ext.B1, complainant’s loan amount is ` 12,18,381-62 and he remitted an amount of ` 11,85,785. He has to pay the remaining amount of ` 62,596-62. But according to the complainant, as per Exts.A1 to A3 series, the loan amount is ` 8,96,875-04 and he had repaid ` 10,70,295 and entitled to get the excess amount of ` 80,410. 19. It is noted that the instalment amount and the date of remittance in Exts.A1 to A3 series are compatible with the entry in Ext.B1. If the loan amount is ` 12,18,381-62 definitely the instalment amount would have incompatible with Exts.A1 to A3 series. Apart from Ext.B1, opposite parties have not produced any repayment schedule to match with Ext.B1. Opposite parties failed to produce either the agreement of hire purchase executed with the complainant or with Omar Farooq regarding the disputed loan transaction. Therefore, the reliability of Ext.B1 is suspicious. 20. Opposite parties admitted the issuance of Exts.A1 and A3 series even though they have denied it in their version. This is evident in DW1’s deposition which is as follows:- “Ext.A1 {]ImcapÅ loan XncnsI AS¨ ckoXpIfmWv Ext.A3 series Fs¶ Ct¸mÄ ImWn¨Xv (QA). Ext.A3 series {]Imcw lÀÖn I£nbmWv ]Ww AS¨ncn¡p¶X”v. It is seen that Ext.A1 and Ext.A3 series are closely related to Ext.A2 Hirer Ledger Details. If Exts.A1 and A3 series are admitted, it amounts admission of Ext.A2. Moreover, there is no dispute that the complainant has not paid ` 8,55,785. Ext.A2 shows that the complainant had remitted ` 8,55,785 by monthly instalments. Therefore, there is no reason to disbelieve the genuineness of Exts. A1, A2, and A3 series issued by the opposite parties. 21. On going through the over all aspects of the hire purchase transaction, it is presumed that the creation of Ext.B1 is an afterthought after the filing of the objection in I.A.129/2010. As per the objection of the I.A. the loan stands closed and entries regarding the loan has been erased from the computer and there is no manual entry for the same. Therefore, the genuineness and the reliability of Ext.B1 is shaken by their own statement. Hence we are not inclined to accept Ext.B1. 22. Being a financial institution, opposite parties are duty bound to follow transparency and accuracy in their dealing as per the guidelines enforced by Reserve Bank of India and other Government agencies. But in this case, hidden hyprocracy is seen in their account. Such an unscrupulous practice is a menace and challenge to the economic prosperity and well being of our nation. The government must take appropriate action to such an errering institution in a situation in which proper accounts are not keeping and wrong entries are making for defrauding the customers. 23. On a perusal of Ext.A2, it is evident that the complainant has remitted ` 8,55,785. According to complainant, he paid ` 3 lakhs to opposite parties on 08-08-2008, the same was admitted by opposite parties. Therefore, complainant had paid a total amount of ` 11,55,785 (i.e. 8,55,785 + 3,00,000). Even though the complainant had a claim that opposite parties received the insurance amount of ` 14,570, the same has not been proved. Such an entry in Ext.A2 is handwritten. Therefore, it is not admissible. As per Ext.A1, complainant has to pay ` 9,89,875 and he had paid ` 11,55,785. Hence the excess amount is ` 1,65,910 (i.e. 11,55,785 – 9,89,875). But complainant claims only ` 80,410 as excess amount. The said amount is inclusive of insurance amount of ` 14,570. Since it is not admissible, the same is deducted and the remaining amount is ` 65,840 (i.e. 80,410 – 14,570) which is the excess amount. The non-payment of the said amount and non-issuance of clearance certificate is a clear deficiency of service hence this and complaint is maintainable and allowable. 24. In the result, this complaint is allowed as follows:- (1) The opposite parties are directed to return the excess amount of ` 65,840 (Rupees Sixty five thousand eight hundred and forty only) to the complainant with a compensation of ` 5,000 (Rupees Five thousand only). (2) The opposite parties are directed to issue clearance certificate to the complainant to enable him to make necessary changes in the concerned R.T.O., failing which opposite parties are directed to pay a further amount of ` 50,000 (Rupees Fifty thousand only) to the complainant. (3) Since there is no prayer for cost, the same has not been allowed. The amount so awarded is to be paid within 15 days from the date of receipt of this order, failing which the whole amount will follow 12% interest per annum from this date, till the realisation of the whole amount. Declared in the Open Forum on this the 23rd day of March, 2011. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Sadasivan Pillai. Exhibits marked on the side of the complainant: A1 : Photocopy of the repayment chart issued by the opposite parties. A2 : Payment details of complainant issued by opposite parties. A3 to A3(k) : Payment receipts (12 in number) issued by the opposite parties. Witness examined on the side of the opposite parties: DW1 : Arun. M. Exhibits marked on the side of the opposite parties: B1 : Statement of account. (By Order) Senior Superintendent. Copy to:- (1) K. Sadasivan Pillai, Kannanghat House, Kaippuzha Muri, Kulanada Village. (2) The General Manager, Sreeram Transport Finance Company Ltd., Administrative Office, No.101 – 105, Shiv Chambers, First Floor, B-Wing, Sector-II, CBD Belapur, Navi Mumbai – 400 614. (3) Sreeram Transport Finance Company Ltd., represented by SBU Head, 4th Floor, Capital Centre, Opposite Govt. Secretariat, M.G. Road, Thiruvanananthapuram – 695 001. (4) Branch Manager, Sreeram Transport Finance Company Ltd., Nandiyathu Plaza, College Junction, Pathanamthitta. (5) The Stock File. | 
