KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 163/2016

JUDGMENT DATED: 02.08.2022

(Against the Order in C.C. 87/2010 of CDRF, Wayanad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                                   : JUDICIAL MEMBER

SRI.RANJIT. R                                                                               : MEMBER

APPELLANT:

Shriram Transport Finance Co. Ltd., 123, Angappa Naikan Street, Chennai represented by its Authorized Signatory Santosh P. John.

(By Adv. Narayan R.)

                                                Vs.

RESPONDENTS:

1. Krishnankutty, 9/187, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.

(By Adv. Suja Madhav)

2. M/s Singvi Syndicate, No. 49, Erulappan Street, Sowcarpet, Chennai-600 079.
3. Chacko, Vikas Auto Consultant, Kottakunnu, Sulthan Bathery, Wayanad-673 592.

(By Adv. Bobby K. Joseph for R2 & R3)

4. Prakashan, Kayyanikkal House, Manalavayal Post, Wayanad-673 579.
5. Prasad, Nedumkuzhiyil House, Periya Post, Mananthavady via Wayanad-670 644.
6. Regional Transport Officer, Wayanad, Kalpatta, Wayanad-673 121.

Additional Respondents:

7. Radha, W/o Krishnankutty, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
8. Dineshan, S/o Krishnankutty, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
9. Baby, W/o late Dineshan, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
10. Amarjith, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
11. Ajilamol, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
12. Diljith, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.
13. Sheeba, Karakunnu House, Noolpuzha, Naikaty Post, Sulthan Batheri, Wayanad-673 592.

JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

The 3^rd opposite party in C.C. No. 87/2010 of the Consumer Disputes Redressal Forum, Wayanad (in short, the District Forum) has filed this appeal against the order passed by the District Forum on 06.01.2016 by which the opposite parties 3, 4 & 5 are jointly and severally directed to pay Rs. 3,10,000/- (Rs. 2,02,000 + Rs. 1,08,000/-) which was spent by the complainant with interest @ 18% per annum from 09.07.2009 till payment and they are jointly and severally directed to pay Rs. 1,00,000/- as compensation and previous litigation expenses and also to pay Rs. 25,000/- as costs of the proceedings to the complainant.  The 6^th opposite party is directed to write off the booked tax for the period from 01.01.2010 till the date of putting the vehicle on road with proper records.

2.  The averments contained in the complaint are, in brief, as follows:

The complainant purchased a truck having No. KL 08 T 3822 from the 4^th opposite party on assurance that the truck was free from any liability and an agreement was executed to that effect.  At the time of executing the agreement Rs. 2,02,000/- was given as advance to the 4^th opposite party out of the total amount fixed Rs. 5,02,000/- as sale price.  For the remaining amount the complainant had taken a loan from the 1^st opposite party of Rs. 3,00,000/- and adjusted towards the sale consideration and which was agreed to be repaid in 24 monthly instalments of Rs. 18,000/- each to the 1^st opposite party.  The repayment chart was also given to the complainant.  The liable sum in total was Rs. 4,22,200/- including interest.  The opposite parties 1 & 2 received from the complainant two signed blank stamp papers and two blank cheque leaves signed by the complainant drawn on of the South Malabar Gramin Bank, Kalloor Branch, bearing No. 344711 and 344712.  The complainant was informed that the vehicle was free from any liability.  When the agreement was executed the 4^th opposite party who was the RC owner and the complainant and witnesses also signed the agreement.  The vehicle was used by the complainant for his self-employment to meet his livelihood.  Later the vehicle was seized by SHO Thalassery in connection with the Crime No. 273/09 of SHO Thalassery police station on 28.11.2009.  The allegation that led to the registering of the crime was that the 3^rd opposite party had filed a CMP before the JFCM Thalassery stating that the said vehicle was earlier under the ownership of one Prasad (opposite party No. 5) and he had availed a loan of Rs. 3,25,000/- from 3^rd opposite party executing a hypothecation agreement but had not repaid the loan amount.  So the complainant filed a petition under Sec. 451 of Cr.P.C. as C.M.P. 3506/09 before the Addl. CJM Court, Thalassery on 30.11.2009 for the interim custody of the vehicle.  On the same day the 3^rd opposite party also filed another C.M.P. as 3505/09 for the release of said vehicle to him.  Then the 1^st and 2^nd opposite parties approached the complainant and stated that more possibility of getting release of vehicle was to the 1^st opposite party since he was the present hirer of the vehicle and promised that 1^st opposite party would get release of the vehicle from the court and hand over the same to the complainant unconditionally.  Believing the assurance of 1^st and 2^nd opposite parties and the legal advice he received, the complainant handed over the original R.C. of his vehicle and other documents to the 1^st opposite party and withdrew his C.M.P. as promised.  The 1^st opposite party filed a C.M.P. as 3591/09 before the Addl. CJM Court, Thalassery to release the said vehicle claiming that he was the right person to get the release of the said vehicle being the hirer but the court dismissed the petition and released the vehicle to 3^rd opposite party finding that 3^rd opposite party was the earlier financier.  So, the complainant again filed a petition before the same court as C.M.P. 178/10 for the release of the said vehicle.  But the same was also dismissed stating as ‘not maintainable’.  The revision petition filed by the complainant against the said order was dismissed by the Hon’ble High Court finding that revision petition was not maintainable against an interim order.  The complainant had no knowledge that the vehicle was hypothecated to somebody else by anyone.  The opposite parties 1, 2 and 4 had not disclosed any of the liabilities of the vehicle to the complainant and the complainant was thrown into pain and hardships.  The 2^nd opposite party who is an agent of the 1^st opposite party made the complainant to believe that the vehicle was free from all other liabilities.  The hire purchase agreement was executed between the complainant and the 1^st opposite party only.  The complainant had paid Rs. 2,02,000/- to the 4^th opposite party as the margin money and six equated monthly instalments amounting to Rs. 1,08,000/- were paid to the 1^st opposite party also.  The complainant had to spend huge amount towards the expense in respect of the above said adjudication.  The complainant further stated that the claim of 3^rd opposite party that the said vehicle was hypothecated with 3^rd opposite party is false.  The 3^rd opposite party has caused to seize the vehicle fraudulently with the connivance of 5^th opposite party.  Hence opposite parties 1 to 5 are also equally liable to compensate the complainant for all his losses.  The complainant came to know that claim of 3^rd opposite party that said vehicle was hypothecated with them is false only in the later stage.  In the meanwhile, the 6^th opposite party has sent a notice to the complainant demanding payment of the arrears of vehicle tax for the period from 01.01.2010 to 30.09.2011 for which complainant had sent a reply intimating the fact that the vehicle was seized by the police as per the order of the Addl. CJM Thalassery on 28.11.2009 and stated he was not liable to pay the vehicle tax thereafter.  Despite the said reply 6^th opposite party has again sent memos on 21.12.2011 and on 10.01.2012 intimating that Revenue Recovery proceedings would be initiated against the complainant to recover the vehicle tax arrears.  The complainant is not liable to pay tax arrears if any since the vehicle is seized by the Police as per the order of Addl. CJM, Thalassery on 28.11.2009 and thereafter the vehicle is under the custody of the 3^rd opposite party.  In the above circumstances, one among opposite parties 1 to 5 is liable to pay vehicle tax of the said vehicle, whoever is the actual culprit.  Hence the complainant prayed before the Forum that there may be an order directing the 1^st opposite party to cancel the hypothecation agreement with complainant in respect of truck No. KL 08 T 3822 and intimate the same to the RTO, Wayanad and direct the opposite parties 1 to 5 to pay the complainant Rs. 2,02,000/- with interest @ 18% from 07.05.2009 till realization and also direct the opposite parties 1 to 5 to refund Rs. 1,08,000/- with 18% interest from the date of payment and direct the 2^nd opposite party to give back the complainant Rs. 25,000/- received as commission and service charges that is to be given with an interest of 18% from 07.05.2009 and also direct the opposite parties 1 to 5 to pay compensation of Rs. 1,35,000/- to the complainant for the expenses incurred for conducting case in the court of the Addl. CJM, Thalassery and Hon’ble High Court and also direct the opposite parties 1 to 5 to pay Rs. 1,00,000/- as compensation for mental agony and pain and to grant costs of the petition and to direct the 6^th opposite party to cancel the R.C. of KL 08 T 3822, which is in the name of complainant with effect from 09.07.2009 and to declare that complainant is not liable to pay vehicle tax demanded by 6^th opposite party since the vehicle is seized by the 3^rd opposite party by the order of Addl. CJM Thalassery and to direct opposite parties 1 to 5 to pay the vehicle tax if any payable to 6^th opposite party if it is payable. 

3.  The 1^st opposite party filed version raising the following contentions.  The complaint is not maintainable.  The vehicle No. KL-08 T 3822 of 2001 make Leyland lorry was financed by the 1^st opposite party.  The complainant executed a hypothecation agreement in favour of the 1^st opposite party and it was entered in the R.C. Book.  The possession of the vehicle was handed over to the complainant. The loan was issued after verification of documents.  The 1^st opposite party has not received any cheque or signed blank papers from the complainant.  The 3^rd opposite party filed a complaint before the Additional CJM Court, Thalassery and the vehicle was seized.  Later the Additional CJM Court, Thalassery released the vehicle to the 3^rd opposite party.  According to the 3^rd opposite party the 5^th opposite party who was the prior owner of the vehicle had availed loan from them after executing hypothecation agreement.  The 1^st opposite party had granted loan to the complainant after verifying the records and the 1^st opposite party was not aware of any other liabilities on the vehicle.  The 1^st opposite party is not responsible for the loan and damages if any occurred to the complainant.  Hence the complaint is to be dismissed.

4.  The 2^nd opposite party filed version raising the following contentions.  The 2^nd opposite party has not approached the complainant in connection with the purchase or sale of the vehicle.  The hire purchase deal was between the complainant and the 1^st opposite party and 2^nd opposite party has no role.  The seizure of the vehicle by SHO, Thalassery is not within the knowledge of the 2^nd opposite party.  The 2^nd opposite party has not received any amount from the complainant.  The 2^nd opposite party acted as a mediator in the sale of the vehicle purchased by the complainant.  The complainant is not entitled to get any relief against the 2^nd opposite party. 

5.  The 3^rd opposite party filed version raising the following contentions.  The 3^rd opposite party has no privity of contract with the complainant.  The 3^rd opposite party is the actual financier and the vehicle was released to the 3^rd opposite party by the Additional CJM Court, Thalassery.  The complainant has no title or ownership or possession of the vehicle at any point of time.  The complainant approached the Additional CJM Court, Thalassery and petition filed by him for releasing the vehicle was later withdrawn.  The complainant is not entitled to get any relief against the 3^rd opposite party. 

6.  The 4^th opposite party filed version raising the following contentions.  The complainant availed a loan of Rs. 3,00,000/- from the 1^st opposite party after executing a hypothecation bond.  The vehicle was in possession of the 4^th opposite party and it was sold to the complainant for Rs. 5,02,000/-.  The amount of Rs. 3,00,000/- was adjusted towards the sale price and the complainant has paid Rs. 2,02,000/- to the 4^th opposite party.  The Registration Certificate was transferred in the name of the complainant by the 4^th opposite party.  The 4^th opposite party later came to know that the 3^rd opposite party had financed Rs. 3,25,000/- to one Prasad, who was the then R.C owner of the vehicle.   But the registration certificate does not contain any endorsement of the financial liability with the 3^rd opposite party.  The complainant is not entitled to get any relief against the 4^th opposite party. 

7.  The opposite parties 5 & 6 were ex-parte. 

8.  The complainant was examined as PW1 and Exts. A1 to A16 were marked.  OPW1 & OPW2 were examined and Exts. B1 to B9 were marked on the side of the opposite parties. 

9.  In the order of the District Forum it is stated that the complaint was disposed of by the district Forum by order dated 20.10.2010 and the opposite parties 1, 2 & 4 filed appeal against that order before this Commission and this Commission set aside the order and remanded the matter to consider the question of maintainability and consider the complaint on merits after impleading Prasad, mentioned by the opposite parties, if the parties so desired. The order passed by the District Forum on 20.10.2010 and the order passed by this Commission in the appeal filed by opposite parties 1, 2 & 4 against that order are not seen incorporated in the records sent by the District Forum.  After the remand complainant filed application to implead additional opposite parties and the said application was allowed.  Additional opposite parties 5 and 6 were impleaded, but they were ex-parte.  Thereafter the matter was heard and the District Forum passed the impugned order.  Aggrieved by the order passed by the District Forum the 3^rd opposite party has filed the present appeal.

10.  Respondents 1, 2 & 3 appeared through counsel and respondents 4, 5 & 6 remained ex-parte.  Subsequently 1^st respondent died and his legal heirs were impleaded as additional respondents 7 & 8.  Thereafter additional 8^th respondent died and his legal heirs were impleaded as additional respondents 9 to 13.  The additional 10^th respondent appeared in person and he produced the authorization letter of additional respondents 7, 9, 11, 12 and 13 authorizing him to appear before this Commission on their behalf and submit matters. 

11.  Heard both sides.  Perused the records. 

12.  The parties are referred according to their status/rank in the complaint. 

13.  It is stated by the appellant that the District Forum ought to have found that the complaint was not maintainable before the Forum.  On a perusal of the order of the District Forum it can be seen that the District Forum has considered the question of maintainability of the complaint as point No. 1 and found that the complaint was maintainable.  In paragraph 15 of the order of the District Forum it is stated that the opposite party No. 1 filed I.A. 74/2014 challenging the maintainability of the complaint and after detailed hearing the I.A. was dismissed holding that the complaint was maintainable before the District Forum.  Against that order the opposite parties filed an appeal before this Commission as A 408/2014 and the appeal was dismissed stating that the case was maintainable before the Forum.  This Commission held that “on going through the order of the lower Forum we feel that the complaint is maintainable before the Forum.  The 1^st opposite party is the financier and service provider to the complainant.  Therefore, complainant has to be treated as a consumer as defined under the Consumer Protection Act.  Therefore, we find no ground to admit the appeal and dismiss the same”.  The opposite parties have not challenged the said order of this Commission before any higher forum.  So, it has become final.  Considering all these facts the District Forum found that the complaint was maintainable before the Forum.  There is no reason/ground to interfere with the said finding of the District Forum. 

14.  The complainant purchased a truck having No. KL-08 T 3822 from the 4^th opposite party and an agreement was executed to that effect.  The sale price was fixed as Rs. 5,02,000/- and the complainant had paid Rs. 2,02,000/- towards the sale consideration to the 4^th opposite party.  For the remaining amount complainant availed a loan of Rs. 3,00,000/- from the 1^st opposite party by executing a hypothecation agreement and adjusted towards the sale consideration and the complainant agreed to repay the amount to the 1^st opposite party in 24 monthly instalments of Rs. 18,000/- each.  Thereafter the vehicle was transferred to the complainant by the 4^th opposite party on 09.07.2009 from the R.T.O. Wayanad after retaining the H.P. endorsement of 1^st opposite party in the Registration Certificate.  Complainant had taken possession of the vehicle and the complainant had been making instalment payments to 1^st opposite party regularly.  While so, the said vehicle was seized by SHO, Thalassery in Crime No. 273/09 of that police station.  On the basis of the complaint filed by the opposite party before the Additional CJM Court, Thalassery, the vehicle was produced before that court.  The complaint was filed by 3^rd opposite party stating that 5^th opposite party who was the prior owner of the truck had availed an amount of Rs. 3,25,000/- from them executing a hypothecation agreement.  But the 5^th opposite party failed to pay the amounts and he had transferred the vehicle in the name of the 4^th opposite party and thereby cheated them.  The complainant filed petition before the Additional CJM Court, Thalassery to give interim custody of the vehicle.  Later it was withdrawn by him.  The 3^rd opposite party and the 5^th opposite party also filed petitions for interim custody of the vehicle.  Thereafter the 1^st opposite party has also filed petition for interim custody of the vehicle.  The Additional CJM Court, Thalassery released the vehicle to the 3^rd opposite party on executing bond by him with sureties.  Thereafter the complainant again filed petition before the Additional CJM Court for release of the vehicle which was dismissed as not maintainable. The revision petition filed by the complainant before the Hon’ble High Court was dismissed finding that the revision petition was not maintainable against the interim order.  Thereafter the complainant has filed the present complaint.  There is not much dispute between the parties to these facts. 

15.  It is the case of the complainant that he happened to withdraw the petition filed by him before the Additional CJM Court, Thalassery since opposite parties 1 & 2 approached him and stated that there was more possibility for getting release of the vehicle in favour of the 1^st opposite party.  Since they were the hirer of the vehicle, they promised that on getting release of the vehicle it will be handed over to the complainant unconditionally.  It is stated by the complainant that relying on the assurance given by the opposite parties 1 & 2 he handed over the R.C. Book and other documents of the vehicle to the 1^st opposite party and he had withdrawn the petition filed by him.  Since the petition filed by the 1^st opposite party was dismissed by the Additional CJM Court, Thalassery, he again filed petition before that court which was dismissed as not maintainable.  Alleging deficiency in service on the part of the opposite parties 1 to 5 the complainant had filed the complaint.  He had sought for direction to 6^th opposite party, R.T.O. Wayanad to write off the booked tax for the period from 01.01.2010 till the date of putting the vehicle on road with proper records and it was allowed by the Forum.  The 6^th opposite party was ex-parte before the District Forum and he has not filed any appeal against the order passed by the District Forum.  The District Forum found that there was deficiency of service on the part of opposite parties 3, 4 & 5 and they were directed to pay the amounts as stated above.  The 5^th opposite party was ex-parte before the District Forum.  The opposite parties 4 & 5 have not filed any appeal against the order passed by the District Forum.  So, the order passed by the District Forum as against opposite parties 4 & 5 regarding the payment of the amounts to the complainant has become final.  The 3^rd opposite party has filed the present appeal against the order passed by the District Forum.  So, we need only to consider whether there is deficiency of service on the part of the 3^rd opposite party as found by the District Forum and whether he is liable to pay the amounts to the complainant as directed by the District Forum. 

16.  The allegation of the complainant is that the claim of the 3^rd opposite party that the vehicle was hypothecated to the 5^th opposite party was false and the 3^rd opposite party has caused to seize the vehicle fraudulently with connivance of the 5^th opposite party.  Admittedly the interim custody of the vehicle was given to the 3^rd opposite party by the Additional CJM Court, Thalassery.  So, it can be seen that the 3^rd opposite party obtained custody of the vehicle as per the order of the Additional CJM Court, Thalassery.  If the complainant was aggrieved by the order of the Additional CJM, Thalassery, he would have challenged that order properly before the appellate authority by appropriate proceedings.  But he has not done so.  Instead of that complainant had filed the complaint before the District Forum as per the provisions of the Consumer Protection Act.  Further, on a perusal of Ext. B1 order passed by the Additional CJM Court, Thalassery, it can be seen that the interim custody of the vehicle was given to the 3^rd opposite party, because of the mistake/fault of the complainant, that he has filed petition for getting custody of the vehicle, but had later withdrawn the same.  From Ext. A4, copy of the FIR in Crime No. 273/2009 of Thalassery Police Station, it can be seen that the 3^rd opposite party had filed complaint before the Addition CJM Court, Thalassery stating that the 5^th opposite party had availed a loan of Rs. 3,25,000/- from them, executing a hypothecation agreement with respect to the vehicle No. KL-08 T 3822 and he failed to remit the amount as agreed.  By mistake the said hypothecation was not entered in the Registration Certificate of the vehicle.  Taking advantage of that, the 5^th opposite party transferred the vehicle to the 4^th opposite party and thereby cheated them.  The 1^st accused in the crime is the 5^th opposite party, the 2^nd accused in the crime is the 4^th opposite party herein and the 3^rd accused is the manager of the 3^rd opposite party.  The 3^rd opposite party filed petition before the Additional CJM Court, Thalassery for getting interim custody of the vehicle stating the same facts mentioned in the complaint filed by him.  They had produced the hypothecation agreement executed by the 5^th opposite party in their favour.  The said hypothecation agreement dated 14.09.2007 was produced before the District Forum also by the 3^rd opposite party which was marked as Ext. B9.  The 5^th opposite party filed petition before the Additional CJM Court, Thalassery for getting custody of the vehicle in which he admitted the execution of the hypothecation agreement with the 3^rd opposite party.  It is stated by him that due to financial difficulties he had transferred the vehicle to one Ummar after executing an agreement and in the agreement the said Ummar had agreed to pay the amounts due to the 3^rd opposite party.  He had produced the copy of the said agreement before the Additional CJM Court, Thalassery.  The 1^st opposite party had also filed petition for interim custody of the vehicle before the Additional CJM Court, Thalassery, stating that they had advanced amounts to the complainant who was the registered owner of the vehicle and the complainant had executed an agreement of hypothecation of the vehicle in their favour.  The fact of the hypothecation of the vehicle was entered in the R.C. Book of the vehicle.  In the order of the Additional CJM Court, Thalassery, it is stated that the 5^th opposite party produced the R.C. Book of the vehicle.  The Additional CJM Court, Thalassery found that since the 5^th opposite party was the 1^st accused in the crime, the person who committed default in payment of the amount to the 3^rd opposite party and transferred the vehicle without the consent of the financier,  the interim custody of the vehicle could not be given to him.  It is stated by the Additional CJM Court, Thalassery that the 1^st opposite party had produced an R.C. Book of the vehicle in the name of one Krishnankutty (complainant herein) and the fact of hypothecation of the vehicle in their favour was entered in the said R.C. Book of the vehicle.  The Additional CJM Court, Thalassery noted that a new Certificate of Registration was produced by the 1^st opposite party bearing the signature and seal of the R.T.O., Wayanad which was issued on 12.08.2009.  It does not contain the endorsement as ‘duplicate’.  The R.C. Book of the vehicle produced by the 5^th opposite party is genuine.  The Additional CJM Court, Thalassery found that in those circumstances it cannot be said whether the Certificate of Registration in the name of Krishnankutty (complainant herein) produced by the 1^st opposite party was a forged one or not and so the interim custody of the vehicle could not be given to him.  The remaining petitioner was the 3^rd opposite party, who had advanced the amounts to the 1^st opposite party on the basis of the hypothecation agreement.  The 5^th opposite party admitted the execution of the hypothecation agreement with the 3^rd opposite party and he had also admitted that he had transferred the vehicle without informing the financier.  The said agreement was also produced by him.  In Ext. B1 order the Additional CJM Court, Thalassery stated that “the settled position is that the vehicle should be given to the person who could best use of the same, but here the petitioners in all the CMP’s cannot be considered so, since two of them were financiers and the other one is the accused in the case who had already transferred the possession to others.  Then the person who is able to use the vehicle is the person from whom it was seized, but he is not now before the court and withdrawn his application.  So, in these circumstances the interim custody can only be given to the first financier who had advanced a huge amount to the first accused as a loan hypothecating the vehicle which was now in due.  Otherwise, the vehicle will be damaged when it is kept idle in the custody of the court”.  Hence the Additional CJM Court, Thalassery ordered release of the vehicle to the 3^rd opposite party on their executing a bond for Rs. 3,00,000/- with two solvent sureties each for the like sum.  It was also directed by the Additional CJM Court, Thalassery that the petitioner (3^rd opposite party) shall produce the vehicle in the same condition as and when required by the court.  From Ext. B1 order we can see the circumstances under which the Additional CJM Court, Thalassery happened to release the vehicle to the interim custody of the 3^rd opposite party.  The Additional CJM Court, Thalassery has passed the order under Sec. 451 Cr. PC regarding the release of the vehicle to the interim custody of the 3^rd opposite party.  The Additional CJM Court, Thalassery has not considered the question of ownership of the vehicle which he was not expected to do at that stage.  The final decision regarding the custody of the vehicle has to be taken at the time of disposal of the case pending before the Additional CJM Court, Thalassery which can be challenged by the complainant before appropriate authority.  The complainant has no case that the Additional CJM Court, Thalassery had taken a final decision in the matter.

17.  The District Forum found that since there was no endorsement in the R.C. Book of the vehicle, the 3^rd opposite party had no right to obtain possession of the vehicle and even if there was a hypothecation agreement between them and the 5^th opposite party the only remedy available to the 3^rd opposite party was to approach the civil court for remedy.  At the time of registration of the F.I.R at Police Station, Thalassery and at the time of CMPs before the Additional CJM Court, Thalassery the real owner and lawful possessor of the vehicle was the complainant and the 1^st opposite party is the real financier of the vehicle.  So, the 3^rd opposite party had no right or authority to seize or possess the vehicle which was in the lawful possession of the complainant.  The release of the vehicle to the 3^rd opposite party and the custody of the vehicle by the 3^rd opposite party till now was found to be illegal and without any lawful right.  As submitted by the counsel for the appellant the said finding of the District Forum amounts to virtually setting aside the order of the Additional CJM Court, Thalassery.  The District Forum has no power to do so.  The District Forum ought to have considered/borne in mind that they were not sitting in appeal or exercising revisional jurisdiction over the order passed by the Additional CJM Court, Thalassery by which the vehicle was given to the interim custody of the 3^rd opposite party.  So the above said findings of the District Forum are not sustainable. 

18.  The specific case of the 3^rd opposite party is that there was no privity of contract between them and complainant.  It can be seen that the 3^rd opposite party was not a party to the transactions of the complainant with opposite parties 1, 2 & 4.  There is no consumer relationship between the complainant and the 3^rd opposite party.  In paragraph 22 of the order of the District Forum it is found by the District Forum that the complainant has a consumer relationship with opposite party No. 4 only.  But it is stated by the District Forum that even if there is no direct consumer relationship with complainant and opposite party No. 3 & 5, the entire hardships caused to the complainant was due to the fraudulent and illegal acts of the opposite party No. 3 & 5 and they have indirect consumer relationship with the complainant.  It is also stated by the District Forum that the 3^rd opposite party had appeared before the Additional CJM Court, Thalassery, misrepresented the real facts and had taken possession of the vehicle and it was a clear case of deficiency of service and unfair trade practice on the part of the 3^rd opposite party.  Considering the evidence, facts and circumstances it can be seen that the said findings of the District Forum are without any basis.  As stated above, it can be seen that the 3^rd opposite party obtained possession of the vehicle by lawful means, on the basis of the order passed by the Additional CJM Court, Thalassery and the complainant has not taken any proper action before the appropriate authorities for challenging that order and for getting custody of the vehicle.  In paragraph 21 of the order of the District Forum it is stated that it may be true that the opposite party No. 3 has given a loan to opposite party No. 5 on 14.09.2007.  But the HP was not entered into the R.C. and at that time opposite party No. 5 was not the R.C. owner of the vehicle.  The District Forum found that it was a fraudulent act committed by opposite party No. 5 against opposite party No. 3, who in turn granted loan without verifying the records.  Since the vehicle was taken from the custody of the complainant it would have caused hardship to him.  But the finding of the District Forum that the hardship caused to the complainant was due to the fraudulent and illegal act of opposite parties 3 & 5 is without any basis and there is no evidence for that.  Further the District Forum has not stated the reasons/grounds to arrive at such a finding that the hardship caused to the complainant was due to the fraudulent and illegal act of opposite parties 3 & 5.  The complainant has to establish his ownership over the vehicle, his right to get possession of the vehicle and his allegation of fraud committed by the opposite parties 3 & 5 in a properly instituted civil suit.  From the evidence it can be seen that there is no consumer relationship between the complainant and the 3^rd opposite party.  There is no evidence to find that there was deficiency in service and unfair trade practice on the part of the 3^rd opposite party towards the complainant.  In the light of the above discussion, we find that the findings of the District Forum that the 3^rd opposite party has indirect consumer relationship with the complainant and that there was deficiency in service and unfair trade practice on the part of the 3^rd opposite party towards the complainant are not sustainable and are liable to be set aside.  So the order passed by the District Forum directing the 3^rd opposite party also to pay the amounts to the complainant is also liable to be set aside. We do so.

In the result, the appeal is allowed.  The order passed by the District Forum as against the appellant/3^rd opposite party, directing him also to pay the amounts to the complainant is set aside.  It is made clear that the order passed by the District Forum against the respondents 4 & 5/opposite parties 4 & 5 regarding the payment of amounts to the complainant will stand unaltered and confirmed. 

However, it is made clear that this order will not cause any prejudice/affect the right of the appellant/complainant to file civil suit or to take appropriate proceedings before the appropriate authority to declare his ownership over the vehicle, to get custody of the vehicle etc.

Parties are directed to suffer their respective costs. 

Refund the amount of Rs. 25,000/-, the statutory deposit made by the appellant, to them, on proper acknowledgement.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                              T.S.P. MOOSATH   : JUDICIAL MEMBER

                       RANJIT. R                : MEMBER

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