By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to return Rs.1,09,620/- to the Complainant being the amount paid towards the loan repayment to pay Rs.50,000/- as compensation with 18% interest, to issue nil liability certificate of the vehicle, to return blank signed cheques leaves No.625951 and 625952, to return blank signed papers, stamp papers and other documents and to pay cost of the proceedings.

2. Complaint in brief:- The Complainant availed vehicle loan by hypothecating his vehicle KL12G 3414 from 1^st Opposite party. The 2^nd Opposite Party is the agent of 1^st Opposite party. The Opposite parties promised that there will be no hidden charges, penal interest or other charges to the loan amount. The Complainant availed Rs.1,60,000/- as loan from 1^st Opposite party. The repayment is on monthly instalments of 47 instalments of Rs.5,220/-. As per it, the Complainant had remitted 21 installments. Thereafter, the Complainant had an opportunity at abroad and contacted the Opposite parties and as per advice of 1^st Opposite party, the Complainant surrendered his vehicle to the Opposite Parties on assurance that all the future liabilities will be cleared as paid and the Complainant will be exonerated from the future liability. The Complainant gave two cheques leaves signed, undated and in blank to the Opposite parties along with blank signed papers and other documents as security to the transaction. The vehicle is surrendered towards the full and final settlements of the loan liability. On cancellation of gulf employment, the Complainant has contacted the Opposite Parties. The Opposite Parties auctioned the vehicle without notice and not issued nil liability certificate to the Complainant and not returned the documents. There is gross negligence on the part of Opposite Parties and unfair trade practice. Thereafter the Complainant issued a registered lawyer notice in the address of the Head office of Opposite Parties at Kakkanad, Cochin demanding Nil liability certificate and return of document. But there was no response from the Opposite parties. The Opposite parties cheated the Complainant by exercising unfair trade practice and there by the Complainant sustained huge loss. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite parties and Opposite Parties appeared before the Forum and filed version. In the version of 1^st and 2^nd Opposite parties, 1^st and 2^nd Opposite parties denied the entire allegations in the complaint. The Opposite parties stated that one cheque issued by the Complainant is dishonoured and Rs.500/- was collected from the Complainant as collection charges. The Complainant by himself surrendered the vehicle stating that he want to go abroad and the Opposite Parties took possession of the vehicle and Rs.11,875/- was collected from the Complainant as parking charges. The Complainant is bound to pay Rs.11,451/- as additional finance charges. The Complainant expressed his intention to surrender the vehicle during May 2014 and since the Opposite Party has no other way to get back the finance amount, the Opposite party agreed for the same and took possession of the vehicle on 24.05.2014. At the time of surrendering, there was instalments due and on 04.06.2014, 09.07.2014, the Opposite party issued registered notice to the Complainant demanding payment of loan amount and to take back the vehicle or otherwise Opposite party will be forced to sell the vehicle in auction for a sum of Rs.41,000/- and adjusted towards loan amount. The Opposite party issued registered notice to the Complainant informing that the vehicle is auctioned on 14.08.2014. Even after adjusting the sale proceeds there was a balance of Rs.1,24,020/- towards loan account. To escape from the liability, the Complainant filed this complaint alleging deficiency of service and unfair trade practice from the part of Opposite Parties. Hence complaint is not maintainable and is liable to be dismissed.

4. On perusal of complaint, version and documents the Forum raised the Following points for consideration.

1. Whether there is deficiency of service from the part of Opposite parties?

2. Relief and costs.

5. Point No.1:- The Complainant filed proof affidavit on 23.01.2015 and the case is posted for cross examination of Complainant on 16.02.2015. On 16.02.2015, the Opposite Party sought time for cross examination and the case was posted for evidence on 10.03.2015. On 10.03.2015, the Complainant filed power of attorney since the Complainant is leaving India for search of employment and to appoint Mr. Hamsa P.P to conduct the case for and on behalf of Complainant. Even if power of Attorney is accepted by the Forum, the Power ofAttorney holder not appeared before the Forum. There after the Complainant's Counsel appeared and submitted that there is no oral evidence for the Complainant and prayed for marking the documents from the side of Complainant. The Opposite Parties objected the marking documents. Hence Exts.A1 to A4 documents are marked with objection. The Opposite party is examined as OPW1 and Exts.B1 to B8 is also marked. The called for document is marked as Ext.X1. The Complainant had filed proof affidavit and prayed for marking documents in the absence of oral evidence, the Forum found that the personal presence of the Complainant is not required , since he is represented by his counsel. The ownership of vehicle in the name of Complainant is not disputed by Opposite parties. The only thing the Opposite Party stated is that the Complainant defaulted in repayment of loan and surrendered the vehicle to Opposite Parties. The Opposite Parties case is that the Opposite parties send two notices demanding full payment of loan amount and to take back the vehicle. When there was no response from the Complainant, the Opposite party had auctioned the vehicle. After auction the Opposite party had send another notice demanding him to pay the balance amount. On perusing the Ext.B1 documents ie the original loan agreement executed between the Complainant and the Opposite parties, it is seen that the agreement is in a printed form and all relevant portions are unfilled and in blank. Only the signature of borrower and Co-borrower and executor is there. The name and address of tender and borrower is not there in the agreement. The name and address of co-borrower and guarantor is also not there in the agreement. The date of executor of the Ext.B1 document is also not there in the document. The Ext.B2 series notice and Ext.B3 series notice send by the Opposite parties are returned stating that “Not known”. In Ext.B2 series notice, the address shown is “Ubais, Cherambatta house, Meppadi (P.O), Nathankuni-673122, Wayanad District, Kerala and Mr. Jaseera, Cheratt kandiyil House, Meppadi, Nathankuni-673122, Wayanad, Kerala”. The address of Complainant shown in the Complaint is “Ubais, S/o Chekku, Cherambatta House, Meppadi (P.O), Wayanad District”. In the opposite party's notices, no father's name is shown and Nathankuni is added. In Ext.B3 notice also this mistake is happened. In Ext.B3 notice, the pin number shown is different. The specific case of the Complainant is that the Complainant did not get pre-auction notice from the Opposite parties. On perusal of Opposite Parties documents it is found that the agreement value of the vehicle is Rs.2,43,870/-. The loan availed is Rs.1,50,000/-. The case of Complainant is that the Complainant already repaid Rs.1,09,620/- towards loan and thereafter he surrendered the vehicle to the Opposite parties. In the version of Opposite parties, Opposite parties did not state the actual amount remitted by the Complainant towards loan. The Opposite parties auctioned the vehicle for a sum of Rs.41,000/- and the balance amount towards loan is shown as Rs.1,24,020/- in the version. Ext.B5 series are the documents to show that the Opposite parties send registered notice to the Complainant demanding to pay the balance amount for Rs.1,24,020/-. But whether Ext.B5 series notice is served to the Complainant or not is not proved. The 1^st Opposite party did not state what is the upset price fixed for the vehicle before auction. A vehicle which values Rs.2,43,870/- is sold auction for Rs.41,000/- according to the whims and fancies of Opposite parties cannot be justifiable in a case where valid pre-sale notice to the Complainant is not served. In this case, it is pertinent to note that the Complainant repaid Rs.1,09,620/- towards total loan of Rs.1,50,000/-. Again demanding Rs.1,24,020/- from the Complainant is not justifiable. More over, the 1^st and 2^nd Opposite Parties not raised any counter claim in this case for getting any amount from the Complainant. The case of Complainant is that even after auction, the ownership of the vehicle is still continuing in the name of Complainant which will create much difficulties to the Complainant. The Opposite parties did not take steps to change the R.C from the name of Complainant to the name of auction purchaser. The Opposite parties did not prove before the Forum that the RC is changed from the name of Complainant. As per the Ext.B8 Account statement, it is seen that the Complainant remitted the above amount towards loan repayment. The total repayable amount is Rs.2,45,340/- ie 5220 x 47 = 2,45,340/- out of which the Complainant repaid Rs.1,09,620/- towards loan. The balance amount will be Rs.1,35,720/-. Here the Forum noticed that a vehicle values Rs.2,43,870/- is sold in auction for Rs.41,000/- only without giving proper presale notice to the Complainant. Here the Forum fixes Rs.80,000/- as the vehicle price instead of Rs.41,000/-. The Opposite parties now demands Rs.1,24,020/- from the Complainant. So out of total repayable amount of Rs.2,45,340/-, the Complainant already repaid Rs.1,09,620/- and the balance amount is Rs.1,35,720/- and out of this amount, the reasonable price fixed by the Forum is to be deducted. So the amount will be 1,35,720/- less Rs.80,000/- = Rs.55,720/- (1,35,720 - 80,000 = 55,720/-). So the actual liability of the Complainant now exists towards loan is Rs.55,720/-. Therefore, on perusal of entire evidence and documents, the Forum found that selling the vehicle without proper notice and without fixing upset price and claiming huge amount from the Complainant without any basis is a clear deficiency of service from the part of Opposite parties. Point No.1 found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant

is entitled to get cost and compensation.

In the result, the Complaint is partly allowed and the Opposite parties are directed to issue Nil liability certificate to the Complainant pertaining to the vehicle KL 12G 3414 on remittance of Rs.55,720/- as full and final payment towards loan liability by the Complainant. The Opposite parties are also directed to change the name of Complainant from the RC book of the above vehicle to the name of auction purchaser. The Opposite parties are directed to give back all signed blank papers and cheque leaves No.625951 and 625952 including signed blank stamp papers to the Complainant along with Rs.2,000/- as compensation and Rs.1,000/- as cost of the proceedings on remittance of the above amount by the Complainant. Both parties shall comply the order within 30 days from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 28^th day of September 2015.

Date of Filing:07.10.2014.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

Nil.

Witness for the Opposite Parties:

OPW1. Robin. T.S. B/M, Mahindra Finance, Sulthan Bathery.

Exhibits for the complainant:

A1. Copy of Certificate of Registration.

A2. Registration Particulars. dt:29.09.2014.

A3. Copy of Repayment Schedule. dt:21.05.2012.

A4 series (3 Nos) Receipt.

A5(1) Copy of Lawyer Notice. dt:20.08.2014.

A5(2) Postal Receipt. dt:21.08.2014.

X1 Statement of Account. dt:22.06.2015.

Exhibits for the opposite Parties.

B1. Application Form.

B2(1) Letter. dt:29.05.2014.

B2(2) Postal Receipt. dt:04.06.2014.

B3(1) Copy of Letter. dt:20.06.2014.

B3(2) Returned Cover.

B3(3) Returned Cover.

B3(4) Postal Receipt. dt:09.07.2014.

B3(5) Postal Receipt. dt:09.07.2014.

B4(1) Copy of Finance Scheme.

B4(2) Returned Cover.

B4(3) Returned Cover.

B5(1) Copy of Letter. dt:10.09.2014.

B5(2) Postal Receipt. dt:25.11.2014.

B5(3) Postal Receipt. dt:25.11.2014.

B6 Disposal of Assets.

B7. Copy of Receipt.

B8. Copy of Statement of Account. dt:07.07.2015.