By Sri. P. Raveendran, Member:

Complaint filed under section 12 of the Consumer Protection Act.

Brief of the complaint is as follows:

The Complainant approached the Opposite Party through Opposite Party No.2 at S. Bathery for a hire purchase on 08.01.2004 for his vehicle KL 12A 3031 and the same allowed vide contract No.MBE- 26780-51 executed at S. Bathery. As per the terms of the contract the Opposite Party advanced an amount of Rs.1,05,000/- for which hire charge is

Rs.50,200/-. The said amount is agreed to repay in 32 instalments. The Complainant paid the entire amount through Opposite Party No.2 in time. After full payment the complainant approached 2^nd Opposite Party for executing documents in favour of the Complainant and to cancel the endorsement in the R.C. In 2006 the complainant has received a letter from Opposite Party and directed to pay Rs.35,600/- to 1^st Opposite Party. On receiving the letter the Complainant approached 2^nd Opposite party. After negotiation with Opposite Parties the Complainant has paid a sum of Rs.25,000/- on 5.5.2007 as a final settlement of the loan amount. At that time Opposite Parties informed the Complainant that they will send the vehicle documents and NOC within a month. But they have not sent the same.

2. On 6.10.2007 the Complainant received a letter from 1^st Opposite Party stating that Complainant owes a sum of Rs.15,200/- as the dues of installments Nos.29-32. There is no dues to 1^st Opposite Party. The act of 1^st and 2^nd Opposite Parties are deficiency in service and unfair trade practice. The acts of 1^st and 2^nd Opposite Parties caused great mental agony and suffering to the Complainant. The 3^rd Opposite Party is Road Transport Authority and is having the authority to cancel the H.P. Endorsement in the R.C. Therefore it is prayed that

(1) To Issue the clearance certificate of the vehicle KL 12A-3031 and other documents evented in favour of 1^st Opposite Party or if 1^st Opposite Party fail to do so t he 3^rd Opposite Party may be directed to cancel H.P. Endorsement in the R.C. Book of KL 12A-3031. (2) To give direction to 1^st and 2^nd Opposite Party to give Rs.35,000/- as compensation. (3) To allow such other reliefs prays by the complainant.

3. Notices served on Opposite Parties No.1 to 3. 1^st and 2^nd Opposite Parties appeared and filed version. In the version 1^st Opposite Party admitted he financed Rs.1,05,000/- to the Petitioner on his vehicle No. KL 12A 3031 through 2^nd Opposite Party on 8.01.2004.

What ever amount received has been acknowledged as per the receipt issued by the Opposite Party. The amount disbursed on the basis of hire purchase agreement. As per the terms the petitioner has to repay Rs.1,55,200/- in 32 monthly instalments starting from 08.02.2004. He has to pay 20 instalments at the rate of Rs.5,000/- and remaining 12 installments at the rate of 4,600/-. In case of default the Petitioner has to pay 36% interest for the defaulted amount. The Petitioner is a chronic defaulter so he has to pay 36% by way as overdue interest. Towards repayment of Rs.1,55,200/- the petitioner has paid only Rs.1,40,000/-. The amounts paid by the Petitioner were adjusted towards the installments as on the due dates and further additional finance charges by way of overdue interest is calculated as Rs.34,498/- which is also liable to be paid by the Petitioner, apart from the principle amount an amount of Rs.15,200/- is to pay by way of instalment dues. Hence as on 23.8.2008 Petitioner is liable to pay a sum of Rs.49,698/- with further interest at the rate of 36% for the principle amount of Rs. 15,200/-. The payment by the Petitioner to the 2^nd Opposite Party is at his risk and is no way to be considered as a payment to this respondent. The Opposite Party is not in custody of the Registration Certificates or any other connected documents like insurance policy, permit etc. On repayment of the due towards this respondent the loan document in custody of this respondents will be cancelled. Hence before clearing the dues to this Opposite Party the Petitioner is not entitled for the clearance certificate or no due certificate. This respondent has not done any unfair trade practice nor committed deficiency of service. Hence it is prayed that to dismiss the petition on the cost of this Opposite Party.

4. The 2^nd Opposite Party filed version. In his version he admitted that the petitioner has availed a loan from 1^st Opposite Party through him and signed a hire purchase agreement. There after this Opposite Party has no connection with the payment. This Opposite Party has not obtained any document from the Petitioner. There is no unfair trade practice or

deficiency of service on the part of 2^nd Opposite Party. Hence dismiss the complaint with the cost of the Opposite Party. 3^rd Opposite Party has not filed version.

5. The points in consideration are.

1. Is there any deficiency in service on the part of Opposite Parties or any unfair trade practice on the part of Opposite Parties.

2. Reliefs and cost

6. Point No.1:- To prove complainant's case, he has filed chief affidavit and Ext.A1 to A6 are marked. In the chief affidavit he stated as stated in the complaint. He was cross examined by the counsels of Opposite Parties. Ext.A1 is the notice sent by 1^st Opposite Party to the Complainant. Ext.A2 is the cash receipt for Rs.25,000/- issued by 1^st opposite party to the complainant on 26.11.2007. Ext.A4 and A5 series are the cash receipts issued by 1^st Opposite Party to the Complainant. Ext.A6 is the lawyer notice issued on behalf of 1^st Opposite Party to the Complainant on 27.11.2008.

7. Power of Attorney holder of 1^st Opposite Party filed chief affidavit on behalf of 1^st Opposite Party. Ext.B1 to B4 were marked. He was cross examined by the counsel of the Complainant. Ext.B1 is the copy of 'B' Schedule of hire purchase agreement made between 1^st Opposite Party and the Complainant. Ext.B2 is the copy of power of attorney executed by 1^st Opposite Party in favour of K.T. Prasanth (OPW1). Ext.B3 is the hire purchase agreement made between 1^st Opposite Party and the Complainant. Ext. B4 is the hire instalment – Due list – maintained by 1^st Opposite Party.

8. At the time of cross examination, OPW1 has admitted that the Complainant has remitted Rs.1,40,000/- before 08.09.2006. He further admitted that the bills produced by the Complainant are issued from his company. The bills produced by the Complainant is for Rs.1,36,000/-. On verifying the bills with Ext.B4 hire instalment due list produced by 1^st Opposite Party it is clear that there is some discrepancies. For example as per Ext.A3 1^st Opposite Party has issued bill for Rs.4,000/- to the Petitioner but it is not seen entered in Ext.B4. Likewise on 08.11.2004, 02.05.2005, 15.06.2005 1^st Opposite Party has issued bills for Rs.500/-, Rs.1,000/-, Rs. 4,000/- respectively. But the same is not seen entered in Ext.B4. As per Ext.B4 on 16.2.2005 the 1^st Opposite Party has received Rs. 5,000/- from the Petitioner. But he has issued bill for Rs.500/-. Likewise as per Ext.B4 on 10.5.2005, 06.07.2005, 15.09.2005 and 14.11.2005 1^st Opposite party has received Rs.5,000/- on each date. On 13.3.2006, 12.8.2006, 05.6.2006 also the 1^st Opposite Party received Rs.5,000/- each but he issued bill for Rs.4,600/- only. Hence it is clear that 1^st Opposite Party has not issued all bill for the entire amount paid by the Complainant. Complainant's case is that the 1^st Opposite Party has not issued the bill for the entire amount paid by him. Ext.A4, A5 and Ext.B4 strengthen the case of the Complainant. As per Ext.A2, A4, A5 the Complainant has paid Rs.1,61,000/- to 1^st Opposite Party. On perusing Ext.B4 it is clear that the Complainant has paid Rs.9,700/- in addition to the above amount. That means the Complainant has paid Rs.1,70,700/- instead of Rs.1,55,200/-. It is not clear under what law the Opposite Party is permitted to collect 36% of interest for default payment. Ext.A1 and versions of Opposite Parties clear that 1^st and 2^nd Opposite Parties are jointly and severally liable for the deficiency. The act of Opposite Parties No.1 and 2 is deficiency in service and unfair trade practice. Hence point No.1 is decided in favour of the Complainant.

9. Point No.2:- The Complainant is entitled to get clearance certificate and no due

certificate and other documents in respect of vehicle No. KL 12A 3031 from 1^st Opposite Party. If 1^st Opposite Party fails to do so 3^rd Opposite Party has to cancel the hire purchase endorsement in R.C. Book of the vehicle No. KL 12A 3031. The Complainant is entitled to get Rs.2,000/- as compensation and Rs.1,000/- as cost.

10. In the result the Complaint is partly allowed and 1^st Opposite Party is directed to issue clearance certificate and no due certificate and other documents in respect of vehicle bearing registration No.KL 12A 3031 within 30 days of this order. If 1^st Opposite Party fails to issue the certificates 3^rd Opposite Party is directed to cancel the hire purchase endorsement in R.C. Book of the vehicle KL 12A 3031 as and when applied by the Complainant.

11. Opposite Parties No.1 and 2 is directed to pay Rs.2,000/- (Rupees Two thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost to the Complainant.

The Order is to be complied within 30 days of this order.

Pronounced in open Forum on this the day of 29^th December 2008.

PRESIDENT: Sd/-

MEMBER- I: Sd/-

MEMBER-II: Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Devassia. K.P. Complainant.

Witnesses for the Opposite Party:

OPW1. Prasanth. K.T. Inspecting Work, Malabar Finance Corporation.

Exhibits for the Complainant:

A1. Notice.

A2. Temporary Cash Receipt. dt:05.05.2007.

A3. Letter. dt:26.11.2007.

A4 Series. Hire Purchase Receipts.

A5 Series (8 in numbers) Temporary Cash Receipts.

A6. Lawyer Notice. dt:27.11.2008.

Exhibits for the Opposite Party:

B1. Copy of B. Schedule of Hire Purchase Agreement.

B2. Copy of Revocable Power of Attorney.

B3. Hire Purchase Agreement made between 1^st Opposite party and Complainant.

B4. Hire Instalment due list.