DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of November 2018

Present  : Smt.Shiny.P.R,  President

                : Smt.Suma.K.P, Member

                : Sri. V.P.Anantha Narayanan, Member                                 Date of Filing: 10/02/2016

CC No.17/2016

Jisha.S.V,

D/o.Ramankutty,

Soolamkandath Parambil,

Manissery Post, Ottapalam,

Palakkad Dt. 679 521.

 (Advs.K.Dhananjayan and Narayanankutty.N)                                                   -              Complainant

V/s

1. Mahindra and Mahindra Financial Services Ltd.,

having Branch Office in No.15

Arcot Street, Opp:MGR Memorial House,

T.Nagar, Chennai.

Represented by Authorised Signatory/Manager.

2. Mahindra and Mahindra Financial Services Ltd.,

Head Office/Regd Office at Gateway Building,

Apollo Bunder, Mumbai – 400 001.

Represented by Authorised Signatory/Manager.-Opposite parties

3. The Managing Director,

M/s.Mahindra and Mahindra Financial Services Ltd.,

Office at 2^nd Floor, T.M.Complex,

Chandranagar Post, Palakkad,

Kerala, Pin 678 007.

(By Adv.Viju.K.Raphel)

O R D E R

By Smt.Suma.K.P, Member

Brief facts of complaint:

The Complainant had purchased the vehicle goods Autorikshaw Mahindra GEO-BS3 bearing Engine No.10d  9088574 chassis No.MAILT2FTTAF  33122, which now bears the Reg. number as KL-51/B 361 by availing a loan and financial assistance from the opposite party and its branch office at Palakkad, which is 3^rd opposite party.  The total amount was Rs.1,61,623/- which was availed on 14/09/2010 vide agreement No.13011250.  According to the complainant the term and tenure of the said loan was 60 months from the date of the agreement.  The complainant was remitting the payments promptly and without fail to the opposite parties through 3^rd opposite party. 

The complainant has purchased and was using the vehicle for her own livelihood and self employment purpose as her husband is a driver by profession and he was in charge of the vehicle.  He used to ply the vehicle on road by transporting goods.  The income derived by using of this vehicle is the only source of income of the complainant and her family.  No commercial activity or transactions in any nature or similarity is involved in this transaction.

But unfortunately due to the reasons fell beyond control of the complainant there occurred some intervals that has being treated as default by the opposite parties.  They have not given ample time to regularize the EMI despite of the request made by the complainant in this regard.  Hence they have confiscated the above said vehicle without following and complying any legal formalities.  They have snatched the vehicle in a forcible manner even without obtaining any orders from any court or authorities of law.  Hence it can be seen that confiscation of the vehicle belonging to the complainant is an illegality and deficiency of service.  They have confiscated the vehicle in the year 18/10/2011 since then the complainant does not possess the vehicle.  The vehicle is in the illegal custody of the opposite parties. 

After the confiscation of the vehicle, the complainant was bonafidely believing that the entire burden and liability of the vehicle would have been ended.  The 3^rd opposite party has orally informed that they will sell the vehicle in auction to the public to the best available value and price and the sale proceeds would be adjusted towards the loan amount due and that amount would be enough to exonerate the complainant from any further liability.  They have assured that, there will not be any liability to the complainant on account of the loan transaction.  After repossessing of the vehicle, notice was received from the District Collector/Authorized Officer, Revenue Recovery dated 25/11/2014 to pay Rs.6,800/- as dues to the Motor Vehicle Department as road tax, which has fallen arrears from 01/04/2012 onwards.  The complainant reiterates that after the repossession of the vehicle by the opposite party, the complainant or her husband is not having any legal responsibilities to pay the road tax as alleged by the Motor Vehicle Department.  The complainant has not used the vehicle since then.  As per various provisions of the Motor Vehicle Act the complainant is not having any obligation to intimate about the whereabouts of transfer if any made and the complainant does not know whether the vehicle has been legally transferred or not.  Therefore the entire responsibility and burden of this amount of Rs.6,800/- and any other amount that might be or perhaps would have claimed in future by any other person concerned arising out of the use of the said vehicle since 18/10/2011 is on opposite parties, as they have not paid the road tax the same has been paid by the complainant though she is not liable to pay the same.  Thus the opposite parties have committed deficiency of service on this regard.  Subsequently now the complainant has received an intimation that an arbitration award was passed against the complainant asking to pay Rs.2,11,526/-.  The amount arrived at in the arbitration award is baseless and is not supported by any arithmetical propositions and calculations.  The opposite parties have not followed any necessary and legal formalities from the day of confiscation till this date including the intimation of sale in public auction, assessment of value and also regarding the transfer.  All these acts and omissions committed by the opposite parties would come under the purview of unfair trade practice.  It is also submitted that since 18/10/2011 all legal debts and responsibilities pertaining to the above vehicle squarely vests with the opposite parties i.e. to pay the road tax, insurance premium, permit fee etc. and also to pay any amount to any public in connection with the use of the above vehicle lies with the opposite parties.  Thus the opposite parties have committed deficiency of service and the complainant is legally entitled to get Rs.6,800/- from the opposite parties which has been paid by her to the Motor Vehicle Department by way of road tax and Rs.3,00,00/- compensation for the deficiency of service they have committed and is also entitled to get the cost of this litigation.  Hence this complaint.

Notice was issued to the opposite parties from the Forum.  Opposite parties entered appearance and filed their version contending the following.

It is true that the complainant availed a loan for purchase of vehicle Mahindra GEO Compact truck from one Menachery Motors, Palakkad by executing a loan from hypothecating agreement No.1301125.  The loan amount is to be repaid by the complainant was Rs.2,23,920/- payable in 36 equal monthly installments of Rs.6,220/- each payable at 14^th day of September, 2010 for the first installment and the balance 35 installments on 10^th day of every proceeding months.  The contention of the complainant that she was a prompt remitter of EMI’s is also not correct as she was a defaulter and late payer from the 2^nd installments onwards.  The complainant is not using the vehicle for her own use and since the vehicle is used for commercial purpose, this complaint is not maintainable before this Forum.     When there was a default in payment of 7^th EMI by the complainant the opposite party had demanded the surrender of the vehicle by the complainant as per the terms of the agreement as the said defaults were ‘defaults’ as per the terms of the agreement entered into between the complainant and opposite parties.  The complainant had surrendered the vehicle to the 3^rd opposite parties on 18/10/2011 in compliance with the terms of the agreement.  After the receipt of the possession of the vehicle on 18/10/2011 as afore mentioned, the opposite parties has again issued a registered notice to the complainant requesting the complainant to clear of the dues within 7 days of the receipt of notice, and informing the complainant that in default of payment the vehicle will be sold as per terms of the agreement.  The said letter did not evoke any response from the complainant nor the co-borrowers and hence the opposite party was constrained to issue another pre-sale notice to the complainant intimating complainant and co-borrower that in the event of default of payment of dues towards the loan account, the opposite party will be constrained to sell the surrendered vehicle, in ‘as is where is’ condition, for the best price available to the company as per the terms of the agreement.  The said letter has also not responded and hence opposite party was forced to enforce the terms of the agreement entered into with the complainant and was forced to sell the vehicle after complying all the legal formalities on 20/12/2011, to one Seby.P.P, S/o.Porinchu, Paravattani, Thrissur who was the highest bidder in the public auction.  After the sale, the sale proceeds were adjusted towards the loan account of the complainant as per the terms of the agreement.  Arbitration proceedings were initiated for the balance amount in the loan account of the complainant and arbitration notices were issued to the complainant.  The complainant remained silent all the while, as and has not even cared to participate the arbitration proceedings.  The complainant has also suffered and award against her, and the award has now become final and is liable to be executed.  All the transactions regarding the surrender of the vehicle and sale of the vehicle has been completed in the year 2011, even as per the complainant.   The complaint regarding the deficiency of service in the above transactions is filed beyond the period of limitation prescribed under the Act. 

The contention of the complainant that since 18/10/2011 all legal debts and responsibilities pertaining to the above vehicle squarely vests with the opposite parties ie. to pay the road taxes, insurance premium, permit fee etc. and also to pay any amount to any public in connection with the use of the above vehicle lies on the opposite party is not correct and hence denied.  As per the terms of the agreement entered into between the complainant and the opposite party, all such expenses are to be borne by the complainant.  Both parties are bound by the terms of the contract entered into between the parties and cannot travel beyond the four boundaries of the contract.  This being the legal position, the contention of the complainant, in the aforesaid manner, cannot be accepted and it has to be rejected into.  Since the complainant has violated the terms of the agreement entered into between the parties, the vehicle was sold as per the terms of the agreement.  The terms of the agreement also provides that any expenses that include the Road Tax, Insurance and other expenses, till the sale of the vehicle, will be borned by the complainant.  In this case the vehicle was sold on 20/12/2011 to one Seby.P.P, S/o.Porinchu, Paravattani, Thrissur.  The owner f the vehicle and the person in possession of the vehicle from 20/12/2011 is the said Seby.P.P, S/o.Porinchu, Paravattani, Thrissur.  From the complaint, it can be understood that, the road tax is claimed from 01/04/2012 onwards.  If at all, such road tax is claimed from complainant, it is a dispute between complainant and the said Seby.P.P, S/o.Porinchu, Paravattani, Thrissur.  This opposite parties are unnecessary parties in the above proceedings in this regard.

The complainant is precluded from challenging the veracity of the award of the
Arbitration Tribunal or its proceedings before this Honourable Forum, as this Forum is not clothed with powers, to sit in appeal over the award of Arbitration Tribunal or the proceedings before it.  The opposite party has not acted in any derogation of law against the complainant.  The complainant has not paid the entire dues towards the loan account.  This complaint is only a preemptive attempt by the complainant to somehow escape from the liability towards the opposite party and to stop further action from the opposite party to recover the outstanding dues towards the loan account.  There is no deficiency of service on the part of this opposite party in the above matter.  Hence the complaint had to be dismissed.

  Complainant filed chief affidavit.  Opposite party filed additional version stating the following.  As admitted by the complainant in the compliant, there was an arbitration clause in the agreement entered into between the complainant and the opposite party, and an Arbitration Proceedings was initiated in this matter and an arbitration award has been pronounced by the Arbitrator in the above matter.  If at all the complainant had any grievances about any of the actions of this opposite party (Assuming without admitting) the complainant could have taken all those matter before the Arbitrator and could have found a remedy there.  The complainant herein has not chosen to raise all this issues before the Arbitrator and has suffered an award.  The complainant has also not taken any measures for correcting any defects in the arbitration award, if at all any defects are there in the Arbitration Award.  Now the award has become final and binding on both parties.  Once an award has become final, the said award can be challenged only by ways and means as set out in the Arbitration and Conciliation Act, 1994.  The said award cannot be challenged before this Forum.  If that is allowed conflicting decision will be the result which cannot be allowed.  Along with additional version the opposite party has also filed an application seeking permission to cross examine the complainant.  In the interest of justice application was allowed but the complainant was absent for cross examination and it was directed to file interrogatories to the complainant.  Opposite parties filed interrogatories for the complainant, and complainant filed answers to the same.  Complainant also filed interrogatories.  Opposite parties also filed their chief affidavit and documents. 

Ext.A1 to A6 was marked on the part of the complainant and ext.B1 to B7 was marked from the part of the opposite parties.  Evidence was closed and matter was heard. 

The following issues that arise for consideration are.

1. Whether there is any deficiency in service on the part of opposite party?
2. If so what is the relief and cost?

Issues 1 & 2

We have perused the affidavits and documents produced before the Forum.  The contention of the opposite party was that since there is an arbitration award the complainant could have taken all those matters before the Arbitrator and could have found a remedy there.  The complainant herein has not chosen to raise all these issues before the Arbitrator and has suffered an award.  Once an award has become final, the said award can be challenged only by ways and means as set out in the Arbitration and Conciliation Act, 1994.  According to the complainant he had approached before the Forum only for the deficiency of service on the part of the opposite party.   By virtue of Section 3 of Consumer Protection Act the complainant can claim relief under Consumer Protection Act for the Redressal of her grievance.  In the light of Section 3 of the Consumer Protection Act the complainant is justified and empowered to approach before this Forum to seek the relief solved by her.  The complainant had only submitted that after surrendering the vehicle on 18/10/2011 the complainant does not possess the vehicle and it was in the custody of the opposite parties and all legal debts and responsibilities pertaining to the above vehicle squarely vests with the opposite parties.  After surrendering the vehicle notice was received from the District Collector/Authorized Officer, Revenue Recovery dated 25/11/2014 to pay Rs.6,800/- as dues to the Motor Vehicle Department as road tax, which has fallen arrears from 1/4/2012 onwards.  The complainant submits that after the repossession of the vehicle by the opposite party, the complainant nor her husband is not having any legal responsibilities to pay the road tax as alleged by the Motor Vehicle Department.  As per the various provisions of the Motor Vehicle Act, the complainant is not having any obligation to intimate about the whereabouts of transfer if any made and the complainant does not know whether the vehicle has been legally transferred or not.  Therefore, the entire responsibility and burden of this amount of Rs.6,800/- and any other amount that might be or perhaps could have claimed in future by any other person concerned arising out of the use of the said vehicle since 18/11/2011 is on opposite parties.  As they have not paid the road tax, the same has been paid by the complainant though she is not liable to the same.    The opposite party contended that since the complainant has violated the terms of the agreement entered into between the parties, the vehicle was sold as per the terms of the agreement.  The terms of agreement also provides that any expenses including road tax, insurance and other expenses, till the sale of the vehicle will be borned by the complainant.  In this case the vehicle was sold on 20/12/2011 to one Seby.P.O, S/o, Porinchu, Paravattani, Thrissur.  The owner of the vehicle and the person in possession of the vehicle from 20/12/2011 is the said Seby.P.O, S/o, Porinchu, Paravattani, Thrissur.  Since the road tax is claimed from 01/04/2012 onwards, such road tax if at all is claimed from the complainant, it is a dispute between complainant and said Seby.P.O, S/o, Porinchu, Paravattani, Thrissur and the opposite parties are unnecessary parties in the above proceedings in this regard. 

According to our view the above contention is not sustainable in law since there is no privity of contract between the complainant and said Seby.P.O, S/o, Porinchu, Paravattani, Thrissur.  The complainant is not supposed to know whether the vehicle has been legally transferred or not by the opposite party.  Therefore the entire responsibility and burden with regard to the expense of the vehicle lies upon the opposite party.  The complainant nor her husband does not have any legal responsibilities to pay the road tax which has fallen arrears from 1/4/2012 onwards as alleged by the Motor Vehicle Department.   The entire responsibility and burden of this amount out of the use of the said vehicle since 18/10/2011 is upon the opposite parties.  As they have no paid for the road tax the same has been paid by the complainant though she is not liable to pay the same.  The act of the opposite parties in this count amounts to deficiency of service and unfair trade practice. The complainant is not legally bound to pay Rs.6,800/- towards road tax to the Motor Vehicle Department.  Hence the complaint is allowed.  Moreover the complainant had filed an additional chief affidavit stating that since the opposite parties have not intimated about the transfer of vehicle to the RTO concerned, the RTO is continuously demanding her to pay the road tax for which she is not liable especially after the surrender of her vehicle to the opposite parties.  On 6/12/2017 the Additional Registering authority, Ottapalam has issued a demand notice dated 6/12/2017(Ext.A6) asking the complainant to pay Rs.18,938/- as the arrears of tax amount upto 31/3/2017.   The above act of the opposite party’s clearly amounts to deficiency of service and unfair trade practice on their part.

Hence the complaint is allowed and we direct the opposite parties to pay the amount of due to the road tax to the Motor Vehicle Department and avoid the complainant from her liability.  We also direct the opposite parties to pay Rs.5,000/-(Rupees Five Thousand only) as compensation towards the mental agony suffered by her due to the deficiency of service by the opposite parties, and also to pay  Rs.2,000/-(Rupees Two Thousand only) towards cost of this proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 30^th day of November 2018.  

                                                                                                                       Sd/-                                                                                                                                                                                                          Shiny.P.R.                                        President                                                                                                                  

                                                                                                                        Sd/-              

                                                                                                                                   Suma.K.P.

                               Member            

                                      Sd/-

                 V.P.Ananthanarayanan

                             Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 - Original notice sent by Joint RTO, Ottapalam to the complainant dated 25.11.14

Ext.A2 - Copy of the demand notice dated 25.11.14.

Ext.A3 - Copy of the Arbitration Award dated 6.11.15

Ext.A4 - Notice of reference of Arbitration dated 4.7.14

Ext.A5 - Copy of Arbitration claim dated 26.8.14.

Ext.A6 - Demand notice sent by Joint RTO, Ottapalam to the complainant dated 06.12.17

Exhibits marked on the side of Opposite parties

Ext.B1 - Certified copy of power of attorney

Ext.B2 - Original loan agreement entered into between the complainant and the opposite party

             dated 14/9/2010.

Ext.B3 - Copy of the Arbitration Award against the complainant dated 6.11.15

Ext.B4 - Copy of notice issued by opposite party to the complainant dated 18.10.11.

Ext.B5 - Copy of notice issued by opposite party to the complainant dated 4.11.11.

Ext.B6(series) - Copy of quotation received to the opposite parties.

Ext.B7 - Copy of valuation report received to the opposite parties dated 15.12.11

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost :  Rs.2,000/-