By: Smt. E.Ayishakutty, Member, (In-Charge of President)

Complainant is the owner of Mahindra three wheel vehicle bearing Registration No KL 10R-4767 which is the only source of his livelihood. For purchase of this vehicle complainant had paid Rs.55000 in cash and remaining balance amount he had availed as loan from opposite party No1 through opposite party No2. A chart was issued by opposite party No1 for the payment of loan amount which was commencing from 13/10/2003 to 13/10/2006 as 36 monthly installments. The amount was calculated by adding interest on the principle amount complainant had paid entire amount as per the chart issued by the first opposite party through second opposite party. Then complainant approached opposite party several times to get the hire purchase termination from the RC but opposite party sent him back by stating that they will issue the termination letter after getting approval from the head office. On 9/9/2010 opposite party No2 issued a statement to the complainant demanding from him Rs.17255 as additional finance charges which the complainant is not liable to pay. Even though the complainant had paid the entire amount mentioned in the chart, opposite party had not issued the termination letter for canceling the higher purchase endorsement from the RC. The vehicle is given by the first and second opposite party and the finance also given by them. The vehicle had got manufacturing defect and so a heavy monetary loss suffered by him and the production of the above type of vehicle was stopped by the opposite parties. The spare parts of the above vehicle is not available in the market. If the complainant wants to change the Tyre of the vehicle he would approach opposite party since nobody knows to change the Tyre of the vehicle the servicemen of 1^st and 2^nd and opposite party. The act of opposite parties amount a gross deficiency of service on the part of opposite party. Hence the complainant approached the Forum to redress his grievance.

Complainant prays to direct First and second opposite party to issue hire purchase termination letter, confirmation letter and no objection certificate in respect of the vehicle KL10 R 4767 or direct the 3^rd opposite party to cancel the hirepurchase endorsement in respect of the above vehicle. He also request to direct opposite party No1 and opposite party No 2 to pay Rs. 20000 as compensation for the mental agony and financial loss along with cost of Rs. 5000 for this litigation.

Opposite party No1 and opposite party No2 filed joint version. Opposite party No1 and opposite party No2 denies the allegations of complainant except those which they specifically admitted .They content that since the vehicle used for commercial purpose for making profit, the Forum has no jurisdiction to entertain the complaint. Opposite party admits the loan agreement and the conditions of repayment of the loan installments without default. They state that opposite party has issued account statement to the complainant which shows an amount of Rs.17255 to be paid to opposite party towards additional finance charges for the default in payment committed by the complainant. Opposite party denies the averments of complainant that he had paid the entire amount as per the chart and first opposite party sent back the complainant stating that opposite party is waiting for approval to issue the termination etc. Opposite party submit that complainant purchased the vehicle by himself with satisfaction of its performance and service. Opposite party has no connection with such matters. They again submit that as per loan agreement complainant availed Rs. 133000 and agreed to repay the amount in monthly installments without any default. The due date of last installments was 13/8/2006. But in many occasion complainant defaulted the amount and by this default there was an amount of Rs 17255 was due to them as additional finance charges which was intimated to the complainant. But towards this complainant paid Rs. 570 only and the balance Rs. 16685 still due and including other charges and expenses he has to be paid this Rs. 18780 in total to opposite parties. Hence the complainant is not entitled to get hire purchase termination letter, confirmation letter and no objection certificate of the vehicle KL10R 4767 without paying the due amount. There is no deficiency on the part of opposite party and hence the complaint is to be dismissed with cost of opposite parties one and two. Opposite party No3 submit that the complainant is the original RC owner of the vehicle and it is held under HPA with opposite party and he is ready to terminate the HP endorsement from the RC of the vehicle KL10R 4767 as soon as the RC owner submit application as prescribed in section 51 (3) of MV Act Rule 61 (c) of M V Rules

Complainant filed proof affidavit with documents.

Ext. A1 and A2 marked on his side. Opposite party counter affidavit filed Ext. B1 to B4 marked. No oral evidence adduced both sides.

Points to decide:-

i Whether the Forum has jurisdiction to entertain this complaint?

ii Whether opposite party No1 and opposite party No2 is deficient in their service ?

iii If so what is the relief and cost?

(i) The first contention raised by opposite party No1 and opposite party No2 are that the Forum have no jurisdiction to entertain this complaint. They filed IA 153/11 before the Forum alleging the jurisdiction of the Forum to entertain the complaint. Opposite party content that as per the Hire purchase Agreement effected between the complainant and opposite party there is a specific stipulation that all disputes arise between the parties will be settled in arbitration and the arbitration clause exhausts the jurisdiction of all courts and Forum in entertaining the disputes arised in transaction. In this case complainant alleges that opposite party is calculating interest upon interest and demanding more amount even though he repaid the total amount of the loan. Such allegation is a consumer dispute and the consumer Forum is constituted with the object of inexpensive and expeditious remedy for consumer against exploitation of traders and service providers. The Apex Court has made notable observations that even if there exists an arbitration clause in an agreement, and a complaint is made by the consumer, in relation to deficiency in service, then the existence of arbitration clause will not be a bar to the entertainment of complaint by the consumer Fora constituted under the CP Act. The Apex commission has settled the position in this regard. Hence there is no dispute in the jurisdiction of the Forum to entertain this complaint . The Forum has jurisdiction to entertain this complaint.

(ii) Another contention raised by opposite party is that complaint has not paid the loan amount as per the agreement executed between them. Ext. B1, the loan agreement shows that complainant and opposite party executed the loan agreement on 13/10/2003. As per Ext. B2, the statement of account shows that complainant availed the finance amount Rs.1,30000 on 13/10/2003. The first due date of the installment was on 13/08/2006. The total interest for the loan was Rs.33275. Tenure of the payment was 36 months form 13/10/2003 to 13/08/2006 and the complainant had to pay 35 installments of Rs.4665. As per the account statement complainant has paid the entire amount of the loan. The last due date as per agreement was on 13/08/2006. The total amount he had to pay including interest Rs. 163275 and complainant had paid Rs. 166239 as per the account statement of opposite party. As per the statement of account it is seen that complaint had completed the payment only on 10/01/2007. The amount he had to pay to opposite party is Rs. 163275 only but complainant has paid Rs. 166239. Even though he has belated a few months to the payment of some installment, he has paid additional amount of Rs.2964. The interest for the loan is calculated in a total basis. The rate of interest is not mentioned in the loan agreement as well as in the account statement. Hence the complainant is liable to pay additional finance charge only after the last due date of payment. So he is responsible for the payment of additional finance charge for the balance amount from 13/08/06 to 10/1/07. He has paid the last 5 installments amount Rs23325/- 5 months after the last due date. So complainant is liable to pay additional finance charge for this amount from 13/08/06 to 10/01/07 ie only 5 months. It is a very mergre amount and complainant already had paid Rs. 166239 instead of the actual due amount Rs 163275. Therefore complainant is not liable to pay any amount to opposite party towards the loan. So the act of opposite party amounts a gross deficiency of service on their part and hence opposite party is liable to issue the termination letter confirmation letter and no objection certificate for canceling the hire purchase endorsement from the RC of the vehicle KL 10R 4767 infavour of opposite party No1.

In the result complaint is partly allowed and we direct opposite party No1 and NoII to issue the hirepurchase termination letter, confirmation letter and no objection certificate to the complainant in respect of the vehicle KL-10 R 4767 to the complaint with in 3 weeks from the date of receipt of copy of this order. Failing which the third opposite party who on request of the complainant shall cancel the hirepurchase endorsement from the RC of the vehicle KL-10R 4767 infavour of opposite party No1. We also direct 1^st and IInd opposite party jointly and serverly to pay cost of Rs 2000 to the complainant for this litigation . No order for compensation.

Dated this 22^nd day of October , 2012.

Sd/-

E. AYISHAKUTTY, MEMBER, (In-Charge of President)

Sd/-

MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1to A2

Ext.A1 : Customer statement of account report,09/09/2010

Ext.A2 : photo copy RC of the vehicle KL-10 R 4767.

Witness examined on the side of the opposite party : Nil

Documents marked on the side of the opposite party : Ext. B1 to B4

Ext.B1 :Loan agreement,dated, 13/10/2003

Ext.B2 : Customer statement of account, dated 02/05/2012.

Ext.B3 : Notice for one time settlement, dated, 12/02/2010

Ext.B4 : Notice for one time settlement , dated, 09/03/2010

Sd/-

E. AYISHAKUTTY, MEMBER, (In-Charge of President)

Sd/-

MOHAMMED MUSTHAFA KOOTHRADAN,MEMBER