ORDER

By Smt. C. S. Sulekha Beevi, President,

1. This complaint is preferred by the power of attorney holder of the complainant who is a driver holding license to drive heavy vehicles. The complainant as well as the power of attorney holder and relatives are bus workers. Complainant and power of attorney holder who were working in other buses decided to purchase a bus for earning their livelihood by self employment. They approached first opposite party who agreed to finance the purchase of a bus. First opposite party informed that they have a stage carriage, KL10/P2196 which has been surrendered by the owner of the vehicle due to default in payment of instalments. That first opposite party agreed to sell the bus to the complainant and also allow finance of Rs.5,00,000/- for purchasing it. Complainant thus purchased the bus by availing finance from first opposite party. Complainant was made to sign in blank agreement, blank cheque leaves, vouchers, receipts and forms. First opposite party informed that the bus will be handed over after finalising the paper works as there was some dispute remaining to be settled with the previous owner. The loan amount of Rs.5,00,000/- was to be repaid in 36 instalments. But even after executing the necessary documents first opposite party did not hand over the bus to the complainant. Though complainant was told that the repayment would start only after delivery of the bus, first opposite party directed to make payment to the loan. Complainant requested to hand over the Registration Certificate to him and this was handed over by first opposite party. Complainant then applied for transfer of ownership along with the hire purchase endorsement of first opposite party. On 07-8-2007 the application for change of route permit into the name of complainant was submitted and this was allowed on 07-11-2007. First opposite party had granted No Objection Certificate for such transfer of ownership and permit. Complainant submitted Form G to the Regional Transport Office to exempt from payment of tax, which was allowed by second opposite party and this continues till date. Complainant paid to first opposite party Rs.75,000/- on 28-3-2007, Rs.25,000/- on 10-4-2007, Rs.10,000/- on 25-4-2007, Rs.25,000/- on 30-6-2007 and Rs,25,000/- on 31-7-2007. Even after making such payments the vehicle was not delivered to the complainant by first opposite party. Complainant had raised the fund to make the above payments by borrowing from friends and relatives. He was thus put in a bad financial condition. Seeing his plight his relatives took him to gulf in seek of a job there. Before leaving, the complainant entrusted the power of attorney holder to take necessary steps. The power of attorney holder approached first opposite party and requested to deliver the vehicle. This was not heeded to by first opposite party. Even after receiving payment of Rs.2,50,000/- and transferring the ownership of the vehicle opposite party failed to deliver the vehicle stating one reason or the other. Complainant was ready to pay the instalments while so, the power of attorney holder came to know that first opposite party has sold the vehicle for Rs.6,50,000/- to another and is trying to get fresh Registration Certificate to the vehicle. On coming to know of this the power of attorney holder filed an objection before second opposite party. As the second opposite party was not wiling to hear the side of power of attorney holder of the complainant, he approached the Hon’ble High Court and a direction was issued to second opposite party to hear the power of attorney holder in the matter of issuing fresh Registration Certificate to the vehicle. It is stated that complainant has paid Rs.2,50,000/- and is willing to pay the balance amount along with interest as agreed or pay the entire price of the bus to first opposite party. That if second opposite party issues fresh Registration certificate in the name of another it will cause irreparable loss and hardships to the complainant. Complainant has paid Rs.2,50,000/- to first opposite party and spend Rs.30,000/- for transfer of Registration Certificate and permit. He is liable to pay vehicle tax of Rs.1,00,000/-. That the failure on the part of first opposite party to deliver the vehicle is gross deficiency in service. Hence this complaint seeking the following reliefs a) to direct first opposite party to hand over the stage carriage KL10 P 2196 b) to direct first opposite party to collect the instalments of the loan c) to direct second opposite party not to issue fresh registration certificate to first opposite party d) for cost of the proceedings.

2. First opposite party filed version that the amount of finance sanctioned tot he complainant is Rs.6,40,000/- and this was repayable with interest and other charges in 48 instalments. The total amount to be repaid as per the repayment chart is Rs.9,73,312/-. The allegations that first opposite party made the complainant sign in blank cheque leaves, agreement and other papers is denied by opposite party. The averment that there was a dispute between first opposite party and the previous owner of the stage carriage and that first opposite party assured to hand over the bus after settling such dispute is denied as false. It is also denied that first opposite party directed the complainant to pay Rs.5,00,000/-. It is submitted that there was no delay in delivering the vehicle and the allegation that the vehicle was not delivered to the complainant is denied as false. The possession and ownership of the vehicle was given to the complainant and he operated the vehicle for a while. Complainant defaulted to pay the instalments after availing the loan facility and taking the vehicle. Ultimately the complainant informed first opposite party that he was not in a position to operate the vehicle and expressed his intention to surrender the vehicle. He agreed to pay the deficit if any suffered by first opposite party after sale of vehicle and adjustment of sale proceeds. The vehicle was sold with consent and permission of the complainant after complying all legal formalities. The vehicle was used by the complainant roughly without doing any repairs and maintenance. The vehicle thus became useless within a short span of time. The vehicle on sale, fetched only an amount of Rs.3,50,000/- out of which the purchaser has paid only an amount of Rs.1,50,000/-. The balance will be paid only on providing fresh Registration Certificate to him. That even by averment in para 5 of the complaint it can be seen that the complainant was not in a position to operate the vehicle as he has left the place keeping the vehicle idle. The averments that complainant paid Rs.2,50,000/- is denied and that complainant is put to strict proof to prove the same. That the complainant is either not clear as to the things transpired or is pretending ignorance. He has approached the Forum with unclean hands. The attempt of the complainant is to block the issuance of fresh Registration Certificate to the first opposite party and thus pressurize first opposite party to absolve the complainant of his liabilities. The averment that complainant is ready to pay the balance of Rs.2,50,000/- with interest or the price of the bus is false and is put forward only to impress and mislead this Forum. If the complainant was capable of paying the instalments he ought not to have surrendered the vehicle, or left the place keeping the vehicle idle. That the averments in the complaint are made only with the knowledge of the power of attorney and not with the consent or knowledge of the complainant. That this complaint has been filed without the consent and knowledge of the complainant. That the examination of the actual complainant is necessary to bring out the true facts. The power of attorney is not true or correct. The interest shown by the power of attorney is only with ulterior motives. Opposite party was constrained to sell the vehicle to reduce the liability of the complainant and to prevent deterioration of the vehicle by being exposed to sun and rain. The vehicle has already been sold and that the complainant is not entitled to the reliefs claimed.

3. Second opposite party filed version submitting that due to default to pay the instalments the stage carriage. KL10 P 2196 was taken possession by first opposite party and that first opposite party filed an application in form 36 to issue fresh Registration Certificate under section 51(5). The matter was enquired through circle officer of second opposite party office who reported vide report dated, 31-7-2008 that the vehicle is under the possession of first opposite party and is presently garaged at Brothers Auto Garage, Arimbra. Form 37 was forwarded to the registered owner Sri.N.K. Ashraf, S/o Ummer, which was returned undelivered with remarks, ’addressee left India, hence returned to sender.’ On receiving this the notice was served to the brother of the Registered Owner, Faisal on 11-8-2008 through field staff of this office. The power of attorney holder of Sri.N.K. Ashraf, who is Sri.Yakood Parappan vide letter dated, 10-8-2008 had requested this authority not to issue fresh Registration Certificate in regard to the vehicle without hearing him. A notice was send to him on 05-9-2008 for hearing before the Regional Transport Officer, Malappuram. Aggrieved by the act of Regional transport Officer he filed WP(C)25613/08 before Hon’ble High Court and vide judgment dated, 26-8-2008 second opposite party was directed to hear the objection of the power of attorney holder also. In order to comply this direction the power of attorney holder was again called for personal hearing vide letter dated, 24-9-2008 with direction to produce sufficient proof to support his claim. Thereafter this complaint was filed by the power of attorney holder Yakoob Parappan. That sec.51(4) and (5) protects the interests of the person with whom the registered owner has entered into hypothecation agreement. If such person satisfies the registering authority that he has taken possession of the vehicle owing to default of the registered owner to abide the stipulations in the agreement, and that the registered owner has refused to hand over the certificate of Registration or has absconded, the Registering Authority, after giving the registered owner, an opportunity of hearing and not withstanding that the certificate of registration is not produced before it, can cancel the certificate and issue fresh Registration certificate to the person with whom the registered owner has entered into hypothecation agreement provided such person pays the prescribed fee for fresh Registration certificate. In this case the registered owner has failed to produce any recorded evidence and has failed to appear for hearing, to support his claim. The first opposite party/financier has fulfilled all requirements for obtaining fresh Registration Certificate. The lame contentions of registered owner as well as the power of attorney is not sustainable. That the complaint is devoid of merits.

4. Evidence consists of the oral evidence of the power of attorney holder of the complainant who was examined as PW1 and Exts.A1 to A8 marked on the side of complainant. Opposite party was examined as DW1 and Exts.B1 and B2 marked for first opposite party. Second opposite party has not field counter affidavit or produced any document.

5. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so reliefs and costs.

6. Point (i):-

The allegation of deficiency in service is assailed against first opposite party alone. The sum of the allegations made by the complainant is that he purchased a stage carriage KL10 P 2196 from first opposite party by availing a finance of Rs.5,00,000/-. Though he paid Rs.2,50,000/- towards this loan and got the registration certificate and the route permit transferred into his name, he could not operate the vehicle as first opposite party did not deliver the vehicle to him. He put the vehicle on stoppage under G-Form and then went to Gulf. First opposite party has now sold the vehicle to another for Rs.6,50,000/- and is trying to get fresh Registration Certificate in the favour of first opposite party. Complainant was always ready to pay instalments. That complainant is willing and ready to take delivery of the vehicle by paying the balance of Rs.2,50,000/- with interest or even paying the entire price of the bus. That the failure on the part of first opposite party to deliver the bus after purchase of it and availing finance is gross deficiency in service.

7. The complainant is resisted by opposite party raising the following contentions:

The vehicle was purchased by the complainant as a take over of the liability of the previous owner, Abdul Shukoor. A loan hypothecation agreement was executed by him. The loan availed was Rs.6,40,000/- and not Rs.5,00,000/- as contended by complainant. It was repayable in 48 instalments and the total amount to be repaid was rs.9,73,312/-. After availing the loan the necessary documents of the vehicle and the vehicle was handed over to the complainant. First opposite party had given the No Objection Certificate by which the complainant had got the Registration Certificate and the route permit transferred into his name. Complainant then operated the vehicle for a while. He failed to repay the instalments. He later surrendered the vehicle and gave consent and permission to first opposite party to sell the vehicle. Complainant assured that he would pay the balance, after adjusting the sale proceeds. Thus the vehicle was sold with consent and knowledge of complainant. Complainant had let India leaving the vehicle idle. The vehicle fetched only Rs.3,50,000/-. Only part payment of Rs.1,50,000/- was made by the purchaser. The balance will be paid only on giving the Registration Certificate of the vehicle. First opposite party had therefore applied for fresh Registration Certificate. The complainant is blocking the issuance of the fresh Registration Certificate only as an attempt to pressurize first opposite party to absolve him from all liabilities. The allegation that the vehicle was not delivered is denied vehemently by first opposite party.

8. The pivotal point which arises for analysation is whether there is failure on the part of first opposite party to deliver the stage carriage to the complainant.

9. Along with the complaint two petitions, I.A.440/08 and 441/08 were filed seeking interim reliefs. The prayer in I.A.440/08 was seeking a direction against first opposite party not to sell the vehicle till the disposal of the case. It was stated in the complaint as well as in the affidavit of the petition that the vehicle was sold by first opposite party for Rs.6,50,000/-. I.A.441/08 was filed seeking a direction against second opposite party not to issue fresh Registration Certificate to first opposite party till the disposal of the case. Another petition I.A.418/09 was filed on 15-9-2009 claiming the release of the vehicle to the complainant. As all these petitions directly and substantially touched the main dispute in the case, the petitions were kept in abeyance and is considered along with this main case.

10. It was argued on behalf of the complainant that the vehicle was kept in the possession and custody of first opposite party throughout and that first opposite party did not deliver the vehicle to the complainant. The counsel for complainant laid much thrust upon Ext.A7. This document is a letter issued by second opposite party to the power of attorney holder of the complainant on his request. It is seen stated in Ext.A7 as under:

“S/c KL 10P 2196 was continuously under stoppage and Form G filed from 1-3-2007 to 30-9-2009 and garaged at Brothers Auto Garage Arimbra, Morayur, Malappuram. This certificate is issued to the application to produce before the Hon. Consumer Dispute Redressal Forum, Malappuram.”

11. Relying upon Ext.A7 it was argued by the counsel for complainant that Brothers Auto Garage is the place where first opposite party keeps it’s vehicles and that Ext.A7 would establish that the vehicle was not at all delivered to the complainant.

12. Counsel for opposite party counternanced this arguement by submitting that first opposite party had handed over all documents relating to the vehicle and even issued No Objection Certificate in favour of the complainant to have the Registration Certificate and permit transferred into this name. That the complainant had taken delivery of the vehicle, transferred all documents into his name, operated it for a short while, and then surrendered the vehicle informing his inability to repay the instalments.

13. Admittedly the vehicle was purchased from first opposite party by the complainant. It is not disputed that complainant availed a loan from first opposite party towards the purchase price payable. Ext.B1 is the loan hypothecation agreement produced by first opposite party. PW1 has categorically admitted his signature in Ext.B1. He deposed that he signed in Ext.B1 as guarantor and that the complainant has signed in Ext.B1 as borrower. Ext.B1 is dated, 13-7-2007. Undisputedly the complainant has got the registration certificate of the vehicle, route permit and insurance policy transferred to his name. Ext.A1 shows that the vehicle was transferred to the name of complainant with effect from 1-11-2007. It is also seen stated in Ext.A1 that the existing hire purchase with first opposite party is continued. Ext.A2 shows that the route permit was transferred to the name of complainant by order dated, 7-11-2007. the evidence of PW1 in this regard is as under:

“Abdul Shukoor-ന്‍റെ പേരില്‍ finance ഉണ്ടായിരുന്ന വാഹനം പരാതിക്കാരന്‍ liability take over ചെയ്താണ് വാഹനം വാങ്ങിയത് എന്നു പറഞ്ഞാല്‍ ശരിയാണ് . അതിന്‍റെ അടിസ്ഥാനത്തില്‍ R.C. Abdul Shukkor-ന്‍റെ പേരില്‍ നിന്നും പരാതിക്കാരനായ Ashraf-ന്‍റെ പേരിലേക്ക് No Objection തന്നു എന്നു പറഞ്ഞാല്‍ ശരിയാണ് . വാഹനം ഓടിക്കൊണ്ടിരിക്കുന്ന വാഹനം ആയിരുന്നില്ല. പിടിച്ചിട്ട വാഹനം ആയിരുന്നു. വാഹനത്തിന്‍റെ permit Abdul Shukoor-ഉം Ashraf-ഉം കൂടി R.T.O.-ല്‍ പോയി permit Ashraf-ന്‍റെ പേരിലേക്ക് Ext.A2 പ്രകാരം മാറ്റി എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. Insurance Policy-യും മാറ്റിയിട്ടുണ്ട്. അഷ്റഫിന് വാഹനം ഓടിക്കുവാന്‍ വേണ്ടി യാതൊരു രേഖകളുടെയും ആവശ്യമില്ലായിരുന്നു എന്നും എല്ലാ രേഖകളും ഉണ്ടായിരുന്നു എന്നും പറഞ്ഞാല്‍ ശരിയാണ്.“

14. The above evidence shows that all the documents of the vehicle which are necessary for the complainant to ply and operate the stage carriage was obtained in his favour. Needless to say that the complainant can obtain such documents to title of the vehicle only with consent and assistance of first opposite party. He does not have a case that first opposite party caused any hindrance in obtaining transfer of the above documents to his name.

15. It is the case of complainant that after effecting all transfers and receiving payment of Rs.2,50,000/- first opposite party did not deliver the vehicle to him. On perusal of the receipts produced on behalf of the complainant it is seen that only one payment ie., Ext.A3 dated, 31-7-2007 of Rs.25,000/- is made after the execution of Ext.B1 agreement. Exts.A4, A5 and A6 are dated, 30-6-2007, 10-4-2007 and 28-3-2007 respectively. Ext.A8 is a receipt for payment of one lakh by the complainant and it is dated, 25-4-2007. Except Ext.A6 and A8 all the receipts are issued in the name of previous owner Abdul Shukoor. It has to be noted that complainant has not stated on which date he purchased the bus from first opposite party. He has not explained why he has made payments of such amounts even prior to execution of Ext.B1. This agreement was produced by opposite party on 06-11-2008 before the Forum, along with I.A.501/2008. Even coming to know of the date stated in Ext.B1, the complainant has not offered any explanation as to why he has made payments on such varied dates prior to Ext.B1. It is still left as a mystery before us. Though first opposite party has admitted the issuance of these receipts the payments contended to be made by complainant towards the loan is denied. It is the burden of the complainant to prove the disparity in the dates seen in the receipts and Ext.B1 agreement. DW1 admits receiving Rs.1,75,000/- only.

16. It is pertinent to note that after having obtained all documents necessary to operate the vehicle admittedly, the complainant has submitted G.Form for the vehicle for exempting tax. The complainant has suppressed the date on which he submitted G.Form and also the reason why he submitted the G.Form. If he actually intended to operate the vehicle he could have demanded delivery of the vehicle by issuing a notice to first opposite party. No such notice was issued by the complainant. The vehicle was one which was surrendered by it’s previous owner and was snot being plied. The vehicle was on G.Form even prior to Ext.B1 agreement. The evidence of PW1 in this regard is as under:

“അഷ്റഫ് വാഹനത്തിന് G-Form ഇട്ട കാര്യം ഞാന്‍ മനസ്സിലാക്കിയിട്ടുണ്ട്. ഓടാത്ത വാഹനത്തിന് Tax ഒഴിവാക്കാന്‍ വേണ്ടിയാണ് G-Form ഇടുന്നത് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. G-Form ഇട്ടു കഴിഞ്ഞാല്‍ R.T.Office-ല്‍ ഉദ്യോഗസ്ഥര്‍ വന്ന് vehicle inspect ചെയ്തു പോകും എന്നു മനസ്സിലാക്കിയിട്ടുണ്ട്. ആ കാര്യങ്ങളെല്ലാം Ashraf നാട്ടി ലുണ്ടായിരുന്നതുകൊണ്ട് Ashraf ആണ് ചെയ്തത് . ഞാന്‍ ഇടപെടേണ്ടി വന്നിട്ടില്ല.“

17. As per Ext.A7 the vehicle was under G-Form from 1-3-2007 to 30-9-2009 and was garaged at Brothers Auto garage. Complainant has not stated the date on which he purchased the bus. It is not disputed that first opposite party keeps it’s vehicles at the Brothers Auto Garage. On submission of G-Form, an officer from the Transport Authority conducts inspection of the vehicle and then grants the order of exempting to pay the tax. It was submitted on behalf of first opposite party that the complainant after taking delivery of the vehicle had operated it for a while and then surrendered the vehicle to opposite party and it was kept at this garage. The evidence of DW1 in this regard is as under:

“സാധാരണ വാഹനത്തിന് tax exemption കിട്ടാന്‍ വേണ്ടി G-Form ആണ് നല്‍കാറുളളത്. അതിന്നുശേഷം ഉദ്യോഗസ്ഥര്‍ വന്ന് പരിശോധിച്ച് വാഹനം garage-ലുണ്ടെങ്കില്‍‍ G-Form grant ചെയ്യുമെന്നു പറഞ്ഞാല്‍ ശരിയാണ്. എതൃകക്ഷി സ്ഥാപനത്തിന്‍റെ വാഹനം സൂക്ഷിക്കുന്ന garage ആണ് Brothers Auto garage, Arimbra, Morayur എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. ഈ വാഹനം 1-3-2007 മുതല്‍ 30-9-2009 വരെയുളള കാലയളവില്‍ Brothers Auto garage ആയിരുന്നു എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. ഇതിനിടയില്‍ വാഹനം പരാതിക്കാരന്ന് release ചെയ്തു കൊടുത്തിരുന്നു. “

18. Counsel for opposite party adverted to the provisions of the Sale of Goods Act (here after mentioned as S.G. Act), and submitted that it was the duty of the buyer to demand for delivery of the goods. In Sec.2(2) of the S.G. Act delivery is defined as “delivery’ means voluntary transfer of possession from one person to another. Possession can also exist without actual custody of the goods. Generally possession is attributed to the person who has the title to the goods. When title to the goods have already been transferred then to prove that there was failure to deliver the good rests upon the buyer who has to establish that he was always ready and willing to take delivery of the goods but the seller had wrongfully refused delivery even after his demand for delivery. Sec. 35 of S.G. Act states as under:

“Apart from any express contract, the seller of goods is not bound to deliver them until the buyer applies for delivery.”

19. The buyer has no cause of action if he has not applied for delivery. It is for the buyer to take delivery and in the absence of any different agreement, the duty of the seller to deliver is satisfied by his affording to the buyer reasonable facilities for taking possession of the goods. In the instant case, the complainant has effected changes in all the documents regarding the title to the vehicle. But he contends that the vehicle was not delivered to him. There is no scintilla of evidence adduced on his side to show that either he or the power of attorney holder had applied for delivery. This complaint was filed on 04-10-2008. The documents were transferred to his name in November, 2007. The complainant had obtained ownership of the vehicle and had every right to receive it and take delivery of it. He has no case that opposite party caused any obstruction when he went to take delivery of the vehicle. He has not send any notice to first opposite party demanding delivery. An ordinary prudent man in such situation would have at least lodged a complaint before the police. It is also admitted by PW1 that he had received notices from first opposite party informing that the vehicle will be sold if he does not repay the instalments. Even then no demand for delivery was made. So the contention of the complainant that the vehicle was not delivered to him is not believable or probable. Complainant did not make any further payments towards the loan. Only after coming to know that first opposite party has sold the vehicle to another and has applied for fresh Registration Certificate, the power of attorney has interfered raising objections against issuing fresh Registration Certificate. The evidence of PW1 in this regard is as under:

1. “കേസില്‍ ഉള്‍പ്പെട്ട വാഹനം പണം അടച്ചില്ലെങ്കില്‍ എതൃകക്ഷി വില്‍ക്കും എന്നും കാണിച്ച് എനിക്ക് നോട്ടീസ് കിട്ടിയിട്ടുണ്ട്. നോട്ടീസ് കിട്ടിയപ്പോള്‍ ഞാന്‍ എതൃകക്ഷി ഓഫീസില്‍ പോയി. അന്നു Manager ഉണ്ടായിരുന്നില്ല.“

2. “വാഹനം വില്‍ക്കുന്നതിന് മാധ്യമം പത്രത്തില്‍ പരസ്യം കണ്ടിട്ടില്ല. notice കിട്ടിയിട്ടുണ്ട്.“

3. “എല്ലാ നടപടികളും പൂര്‍ത്തിയാക്കി കഴിഞ്ഞിട്ട് വാഹനം delivery തരാതിരിക്കുവാന്‍ എതൃകക്ഷി പറഞ്ഞ കാരണം എന്താണ്(Q) ആദ്യം loan തവണകളായി അടവാക്കുവാനാണ് പറഞ്ഞത്. പിന്നീട് 1¾ ലക്ഷം അടച്ചശേഷം ബാക്കി പണം അടക്കണം എന്നു പറഞ്ഞു. ആ സംഖ്യ അടവാക്കുവാന്‍ കഴിഞ്ഞില്ല(A). എന്നാണ് എതൃകക്ഷി ഇപ്രകാരം പറഞ്ഞത് എന്ന് ഓര്‍മ്മയില്ല. ഈ കാര്യം പരാതിയിലൊ affidavit-ലൊ പറയാതിരിക്കാന്‍ കാരണം മറന്നതായിരിക്കും. വാഹനം തരണം എന്ന് ആവശ്യപ്പെട്ട്എതൃകക്ഷി ക്ക് എതിരെ Notice അയയ്ക്കുകയോ police-ല്‍ പരാതിപ്പെടുകയോ യാതൊരു നടപടികള്‍ എടുക്കുകയോ ചെയ്തിട്ടില്ല.“

 

20. Complainant contends to have paid Rs.2,50,000/- to first opposite party. As per ext.Ext.A3 receipt the last payment is on 31-7-2007. Complainant has pleaded and affirmed that he was in bad financial situation and therefore left to Gulf to take up a job there. So the contention of the complainant that he was always ready to pay the instalments and the balance, but first opposite party did not deliver the vehicle is inconsistent and not credit worthy. PW1 has reiterated this contention when he graced the box. He deposed as under:

“ഇപ്പോള്‍ വാഹനം വാങ്ങിയ ആള്‍ക്ക് പുതിയ R.C. Issue ചെയ്യരുത് എന്നുപറഞ്ഞ് ഞാന്‍ നടപടി എടുത്തിട്ടുണ്ട്. പണം അടവാക്കിയാല്‍ വാഹനം എതൃകക്ഷി തന്നാല്‍ ഞാന്‍ എടുക്കുവാന്‍ തയ്യാറാണ്. എനിക്ക് പണം അടക്കുവാന്‍ 6 മാസം വേണം. ഞാന്‍ പറയുന്ന വാക്കില്‍ നിന്നും പരാതിക്കാരന്‍ Ashraf പിന്മാറില്ലെന്ന് എനിക്ക് ഉറപ്പുണ്ട്.“

21. It was submitted by the counsel for first opposite party that this offer is a bogus one. That the complainant had left India submitting G-Form for the vehicle, getting exemption of tax, and leaving the

vehicle idle. That he has defaulted the instalments.

22. However taking into consideration the offer made by PW1 while he was in the box, and in order to resolve the dispute in an amicable way this Forum suggested that first opposite party could submit the final amount payable by the complainant after giving all possible deductions and the complainant can be granted some time to make the payment and take delivery of the vehicle. The complainant was not ready. It is explicit that the offer that complainant is ready to pay the balance or entire price of the bus and take delivery is not a genuine contention.

23. The upshot of the above discussions is that the complainant has failed to establish that there was failure on the part of first opposite party to deliver the vehicle. When first opposite party has handed over all documents to title of the vehicle and complainant has obtained transfer of these documents to his name it can be construed that there is constructive delivery. From the facts, circumstances, and materials placed before us, we are able to gather that there are some transactions that have transpired between the complainant and power of attorney holder. A photo copy of the deed of power of attorney is produced on behalf of the complainant. In this deed of power of attorney nothing is specifically stated about the entrustment to the power of attorney to take steps against first opposite party to obtain delivery of the vehicle. This means that while leaving India, the actual complainant had no conflict of non-delivery of the stage carriage KL 10 P 2196. It is seen specifically stated in clause (5) and (6) of the deed of power of attorney as under:

“5. to transfer the permit of KL 10/p-2196 Bus to the Bus KL-17/C-8191.

6. to purchase the Bus KL.17/C-8191 in my name and on my behalf and pay the consideration money and receive receipt for the same and to appear before the RTO, Office or any other connected offices for effecting the transfer of permit, Registration Certificate, Sale letter, Sale agreement in my name and on my behalf as effectually I could do the same personally.”

24. The above also shows that on the date of execution of power of attorney which is 16-5-2008, the actual complainant had no intention of continuing to operate the stage carriage KL 10 P 2196 with the same route permit and that he intended to sell the vehicle. This deed also shows that complainant owns other buses also. He is not a maiden consumer for purchase of stage carriage or for availing vehicle finance. The complainant and the power of attorney holder are well versed with the procedure and formalities in purchase of bus dealing with transfer of necessary documents etc. We do not find any merits in the contentions raised by the complainant. We do not find deficiency on the part of opposite parties. Complainant is not entitled to any reliefs. The petitions I.A.440/08, I.A.441/08 and I.A.418/09 are disposed accordingly.

25. Before we part with this order we may state that as the vehicle has already been sold by first opposite party, it would not be proper for first opposite party to take steps for recovery of any further amount on the said loan transaction, taking into consideration the payment made by complainant.

26. In the result, we dismiss the complaint,. There is no order as to costs.

Dated this 19th day of March, 2010.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Yakoob Parappan, Power of attorney holder of complainant.

Documents marked on the side of the complainant : Ext.A1 to A8

Ext.A1 : Certificate of Registration in respect of vehicle No.KL10/P 2196

Ext.A2 : Proceedings of RT.A., Malappuram held on 07-8-2007.

Ext.A3 : Receipt dated, 31-7-2007 for Rs.25,000/- from opposite party to Abdul Shukoor.

Ext.A4 : Receipt dated, 30-6-2007 for Rs.25,000/- from opposite party to Abdul Shukoor.

Ext.A5 : Receipt dated, 10-4-2007 for Rs.25,000/- from opposite party to Abdul Shukoor.

Ext.A6 : Receipt dated, 28-3-2007 for Rs.75,000/- from opposite party to complainant.

Ext.A7 : Letter dated, 21-8-2009 by second opposite party to the power of attorney holder of complainant.

Ext.A8 : Receipt dated, 25-4-2007 for Rs.1,00,000/- from opposite party to complainant.

Witness examined on the side of the opposite parties : DW1

DW1 : G. Ranjith, Field Executive of opposite party.

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : Loan cum Hypothecation Agreement dated, 13-7-2007 between opposite party and complainant.

Ext..B2 :

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, MEMBER

E. AYISHAKUTTY, MEMBER