BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 22/04/2010

Date of Order : 29/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 253/2010

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

The complainant availed himself of a vehicle loan to the tune of Rs. 5 lakhs from the 3^rd opposite party through the 1^st and 2^nd opposite parties. The loan amount with interest totalling Rs. 6,00,192/- was to be repaid in 48 equal instalments of Rs. 12,504/- each. The 1^st opposite party was neither regular to collect the amount from the complainant nor the 3^rd opposite party was proper to account for the same. Normally, it took 2-3 days to get it accounted. By 03-03-2009, the complainant had remitted a sum of Rs. 6,37,704/- instead of Rs. 6,00,192/-. An amount of Rs. 37,512/- was collected from the complainant in excess. On 03-04-2009, the complainant caused a notice to the 1^st opposite party demanding to issue clearance certificate and the blank cheques entrusted at the time of loan agreement. But there was no response. At that juncture, the representative of the 2^nd opposite party assured to settle the account if the complainant pays Rs. 15,000/- the complainant paid the amount. In the mean time, the 2^nd opposite party issued a notice to the complainant dated 08-10-2009 demanding to pay Rs. 70,154/-. The complainant remitted a sum of Rs. 65,052/- in excess. Thus, the complainant is before us seeking direction against the 1^st opposite party to issue a loan clearance certificate, to refund Rs. 65,052/- the excess payment and to pay compensation and costs of the proceedings. Hence this complaint.

2. Version of the 1^st and 2^nd opposite parties :-

The complainant is not a consumer as defined in the Consumer Protection Act. The relief sought for relates to settlement of accounts, a complaint concerning such matter cannot be entertained in this Forum. The sum of Rs. 37,512/- was collected from the complainant towards the amounts payable by him as delayed payment charges on the defaulted instalments. The complainant paid a total sum of Rs. 6,37,204/- in the loan account. The 1^st and 2^nd opposite parties did not receive Rs. 15,000/- from the complainant as alleged. The 1^st and 2^nd opposite parties are entitled to collect a sum of Rs. 63,083.50 more from the complainant for the closure of the loan account.

3. Defense of the 3^rd opposite party :

The complainant is not a consumer, he is having large fleet of vehicles been used for commercial purpose. There is no principal agent relationship between the 3^rd opposite party and the 1^st and 2^nd opposite parties. There is no privity of contract between the complainant and the 3^rd opposite party. The 3^rd opposite party denied all the allegations in the complaint. The 3^rd opposite party is an unnecessary party to the proceedings.

4. The complainant was examined as PW1and Exts. A1 to A12 were marked on his side. The witness for the 1^st and 2^nd opposite parties was examined as DW1. Neither oral nor documentary evidence was adduced by the 3^rd opposite party. Heard the counsel for the parties.

5. The points that emanated for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get clearance certificate from the 1^st opposite party?

3. Whether the complainant is entitled to get refund of Rs. 65,062/- from the 1^st opposite party?

4. Compensation and costs of the proceedings?

6. Point No. i. :- According to the complainant, he has purchased the vehicle by availing the loan from the opposite parties to earn his livelihood by means of self-employment. The opposite parties contended that the complainant is a contractor and he has purchased the vehicle for commercial activity. It is stated that the relief sought for is essentially one for settlement of accounts between the parties. Indisputably, banking and financing are services under Section 2 (1)(o) of the Consumer Protection Act. In the instant case, as well the dispute is with regard to banking or financing transaction. So, there is no merit in the contention of the opposite parties here.

7. Point Nos. ii. and iii. :- The parties are in consensus on the following issues :

1. The complainant availed himself of a vehicle loan of Rs. 5 lakhs from the 3^rd opposite party through the 1^st and 2^nd opposite parties.

2. On 28-05-2005, the complainant and the 3^rd opposite party entered into a loan agreement.

3. The complainant was to repay the loan amount with interest totaling Rs. 6,00,192/- in 48 equal instalments of Rs. 12,550/-.

4. The repayment of the loan started from 23-06-2005.

5. The complainant had remitted the instalments to the opposite parties though not in proper time.

6. The complainant had remitted a sum of Rs. 65,062/- in excess of Rs. 6,00,129/- during the said period.

9. According to the complainant, he had remitted a sum of Rs. 65,025/- in excess than that of the amount as per the loan agreement and he is entitled to get the amount refunded. The 1^st and 2^nd opposite parties contended that they had been demanding money from the complainant on the basis of the loan agreement and an amount of Rs. 70,154/- is still outstanding from the complainant as per Ext. A8 demand notice.

10. The complainant as well as the opposite parties relied on the loan agreement between them. Neither parties took steps to produce the loan agreement in this Forum for our perusal that amounts to laps on both sides. Without it, we are at a loss to consider the rival contentions of the parties. The non -production of the same speaks volumes for whatever reasons.

11. During evidence, DW1 the witness for the opposite parties deposed that they have received a sum of Rs. 37,512/- as per Ext. A5 and the amount has been adjusted in the head others. Further, he admitted that on 01-04-2009, they have collected a sum of Rs. 25,000/- from the complainant and the same as well has been adjusted in the same head. Again as per Ext. A7, they have accepted a sum of Rs. 15,000/- which is not accounted for anywhere. In short, the opposite parties have received a total sum of Rs. 62,512/- (Rs. 37,512 + Rs. 25,000/- + 15,000/-) in excess than that of the total instalments.

12. Be the things as it may, we are of the opinion that neither the complainant is liable to pay any amount to the opposite parties nor the opposite parties are entitled to get any amount from the complainant. On account of the same, the complainant is entitled to get a no dues certificate from the opposite parties to release the hypothecation in the Registration Certificate.

13. Point No. iv. :- Since, the primary grievance of the complainant having been met squarely, we order no compensation or costs.

14. In view of the above, we partly allow the complaint and direct that, the opposite parties shall jointly and severally issue clearance certificate pertaining to the complainant's vehicle bearing Registration No. KL 13 N 3448.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of October 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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