IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 24th DAY OF FEBRUARY 2020
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.11/2018
Muhammed Farook,Aged 53 years,
S/o Muhammed Haneefa,
Residing at Fathima Manzil,
Pathanpuram P.O.,
Manchalloor Muri, Pathanapuram Village,
Pathanapuram Taluk, Kollam.
(By Adv.N.R.Roy) : Complainant
V/S
- M/s.Sundaram Finance Limited,
Registered office at No.21,
Patullos Road, Madras 6000002.
Represented by its Manager. : Opposite parties
- V.S.Rajesh, Branch Manager,
M/s.Sundaram Finance Ltd.
Parukkoor Building, Pulamon P.O.,
Kottarakkara, Kollam.
FAIR ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant had availed a loan of Rs.7,50,000/-(Rupees Seven Lakhs Fifty Thousand only) from the 1st opposite party through the 2nd opposite party for the purchase of a FIAT LINEA car bearing Engine No.0160925 and Chasis No.MCA11071B09028055FMZ by executing hypothecation agreement in favour of the opposite parties.
The complainant after availing the loan purchased the car by utilizing the loan amount but the opposite parties failed to give no objection certificate to register the vehicle and as such the vehicle could not be registered before the concerned RTO so as to make it road worthy. In spite of repeated demands and requests the opposite parties failed to issue Form No.21 till the expiry of 30 days from the date of purchase of the vehicle. Hence It is made clear by the complainant form 21 was issued only after 30 days and the complainant was unable to register the vehicle, as the RTO demanded NOC from the opposite parties to register the vehicle. According to the complainant the opposite parties did not issue the NOC even after repeated demands and hence the vehicle was kept in the garage itself without registering.
Due to the non production of form 21 in time by the opposite parties the complainant was constrained to remit only 10 installments and thereafter did not paid the monthly installments owing to the fact that the car was kept idle in the garage without any use. The complainant was regular in remitting the loan amount every month. He had also taken the insurance policy worth Rs.13,721/- which also became useless. The complainant further insisted the NOC to register the vehicle before there upon the 2nd opposite party revealed that it has to come from the 1st opposite party and will hand over to complainant as and when reached from the office of the 1st opposite party.
According to the complainant after the purchase of the vehicle demand of NOC was made by the complainant several times. But it was in vein and after six months has been lapsed the representative of the opposite parties informed that the NOC forwarded to the 2nd opposite party was misplaced in the office and they have given proper instructions to issue the new one at the earliest and agreed that the new NOC will be made available to the complainant without any delay. On that basis the complainant had renewed the insurance policy for the year 2014-2015 by paying Rs.13,721/- and waited for the NOC for registering the vehicle. But it was not provided so as to register the vehicle and it was kept idle for the garage of the complainant without any use. The opposite parties deliberately and purposefully not issued the same as a result the vehicle could not be registered as per the hypothecation agreement.
According to the complainant due to the adamant attitude of the opposite parties he was forced to garage vehicle from the date of expiry of the temporary registration and in fact the vehicle became useless for the complainant and hence there is clear deficiency in service on the part of the opposite parties. It is pertinent to note that loan availed by the complainant for using the vehicle and not for garage. Hence this complainant is not liable to pay any interest for the said period. It is made clear by the complainant that he had paid 10 installments in time and stopped the payment of the further installments due to the reason that the opposite parties did not provided the NOC for registering the vehicle and the complainant was precluded from using the vehicle and it happened due the deficiency in service on the part from opposite parties. The complainant never violated any of the conditions of the loan agreement as the opposite parties failed to comply the procedure of loan by providing form 21 and NOC in time and hence the loan amount agreement did not become operative. According to the Complainant opposite parties are not entitled to demand any money by way of interest as the contractual obligation casted upon the opposite parties was not fulfilled by them in time and the opposite parties could not insist to obey the counter obligation casted upon the complainant for remitting the installments in time. The agreement between the complainant and the opposite parties not came into force. According to the complainant he was forced to garage the vehicle for a long period and he had been denied to use it due to the illegal act and deficiency in service of the opposite parties and on several occasions the complainant expressed his intention to surrender the vehicle before the opposite parties. But they were not willing to take the vehicle and clear the liability. However, existence of an arbitration clause is admitted by the complainant but the opposite parties cannot invoke the provisions of the arbitration clause as they have not fulfilled the terms and conditions by law. They can invoke the arbitration clause only after fulfilling their part of obligation.
According to the complainant the opposite party had filed a petition for the attachment of the property belonging to the complainant and wife for securing the payment of the arbitration award that may be passed against the complainant vide Arb(O.P)No.220/14 before the District Court, Kollam. However the arbitration case was placed before the adalat by the District Legal Service Authority where the complainant offered to settle the loan amount along with its normal interest but the opposite parties refused to accept the offer of the complainant and insisted to pay the loan amount and its interest throughout the loan period for which the complainant was not amenable. The opposite party was directed to issue the NOC as per instructions from the adalath after a period of more than 2 years. Thereafter the complainant registered the vehicle with the RTO, on 07.05.2015 and made it road worthy and till then the vehicle was garaged without any use.
The complainant after getting registered the vehicle on several occasions contacted of the 2nd opposite party to rearrange the loan with effect from 07.05.2015 and fix the monthly installments but the 2nd opposite party was not amenable for the same insisted to close down the loan account fully by paying the entire loan amount with the interest and penal interest up to the last installment. The opposite parties were not ready and willing to accept demands of the complainant. Arbitration has been pending but no award has been passed so far. According to the complainant the above acts of the opposite parties by not providing NOC in the correct time, the complainant is precluded from enjoying the brand new car in the right time and he sustained mental agony apart from financial loss cannot be compensated in terms of money but for an amicable settlement the complainant limits his claim for mental agony as Rs.50,000/- and claiming another Rs.25,000/- as damages for the deficiency in service on the side of the opposite parties. Moreover the complainant is not liable to pay interest or penal interest from the date of loan to the date of registration of the vehicle. Hence the complaint.
The opposite party filed version admitting the agreement entered between the complainant and opposite parties and it is conditions. The opposite party further contended that the relationship between the complainant and the opposite party is governed by the written contract and complainant is only a party in the agreement. It is further contended by the opposite party that various conditions are embodied in written contract and it is a contractual obligations which purely comes under the ambit of a civil court jurisdiction.
The opposite party would further contend that agreement entered between the complainant and opposite parties is a loan agreement as per the article 22 of the loan agreement any dispute, differences and claims between the complainant is to be settled by arbitration court decision. The opposite party would also contend that the Arbitration and award will be final and binding on both parties. The opposite party would further contend that even after the receipt of the final award the complainant has not cared to file any appeal under section 34 to set aside the final award. Relaying on the decision passed by the Hon’ble National Consumer Disputes Redressal Commission in installment supply Ltd.Vs.Kangra Ex Serviceman Transport {1(2007) CPS 34 (NC)} on 05.10.2016 the opposite party would contend that a complaint cannot be decided by the Consumer Forum after an Arbitration Award is already passed, The same position is reiterated by the National Consumer Disputes Redressal Commission in M/s Magma Fin.Corp.Ltd. Vs Praveen Benson & another (Ret Petition No.1936/2015. That an Award was passed the District Forum has no jurisdiction to try this case. Hence complaint is not maintainable.
It is further contented that the opposite party is a public limited company registered under the Companies Act, 1913 having registered office at Chennai. On 12.03.2013 the complainant had availed a loan for an amount of Rs.7,50,000/-(Rupees Seven Lakhs and Fifty Thousand only) from the opposite party company for the purchase of New FIAT Linea car by executing a loan agreement dated 12.03.2013 agreeing to pay the said amount in 48 monthly installments. However the complainant violated the agreement and failed to repay the loan amount. As per the agreement in the event of any default occurring in the payment of the installment amount or other charges under the agreement the borrower shall pay additional financial charges of the company. Opposite party has informed the complainant to clear the dues. But the complainant evaded from payment on lame excuses. The opposite party would further contend that the company could not repossess the vehicle as it is not traceable. According to the opposite party the company had filed Arbitration Case No.220/2014 before the Hon’ble District Court Kollam under Section 9 of the Arbitration and Conciliation Act and obtained or attaching the immovable property owned by the complainant and his wife and the attachment is now in force. The opposite party company also filed Arbitration case No.SK/SF/573 of 2014 before the Hon’ble Arbitrator Mr.S.Santhana Krishnan ((Rtd. District Judge) Chennai for realization of Rs.7,59,173/- from the complainant. Complainant failed to appear before the arbitrator. Hence the arbitrator passed exparte award directing the complainant to pay Rs.7,59,173/- with interest at the rate of 18 % per annum from 22.09.2014 till realization with cost Rs.6,500/-.
The vehicle was seized by motor vehicle department due to non registration of vehicle and a police case was also registered. It is further contented by the opposite party that on request of the complainant the vehicle was got released and registration procedure was completed and Regn.number KL-25-G 6065 was allotted. The opposite party would further contend that in order to obstruct the repossession of the vehicle involved in the agreement, the complainant by suppressing material facts had approached this Forum with unclean hands raising false allegations without any truth or bonafides . It is further contented by opposite party that the financier has no role of issuing form 21 as submitted by the dealer of the vehicle to concerned RTO for registering the new vehicle. However the opposite party arranged finance to the complainant for the purchase of FIAT LINEA Car, the opposite party company issued the cheque to the dealer of the vehicle M/s Kulathunkal Motors, Anayara, it is the duty of the dealer of the vehicle to issue form 21 with their signature.
According to the opposite party normally application for registration of a new motor vehicle is submitted by the dealer of the vehicle after obtaining signature or thumb impression of the persons to be registered as registered owner, along with signature of the financier with whom an agreement of hire purchase has been entered into. On receipt of an application and after verification of the documents furnished therewith the registering authority used to issue certificate of registration to its owner. It is further contended by the opposite party that the complainant used the vehicle without registration for 2 years and the opposite party company on several times demanded the complainant to produce the copy of the registration particular of the vehicle with the endorsement of financier’s is name. But the complainant was evading by stating lame excuses. Opposite party further contends that complainant has not sustained any mental agony or hardship . The amount claimed as compensation is fanciful and baseless. There is no deficiency in service on the part of the opposite party. The complaint is only to be dismissed in liminie.
In the light of above pleadings the points arise for consideration are:-
- Is not the complainant maintainable?
- Whether there is any deficiency in service or unfair trade practice on the part of opposite party No. 1 & 2?
- Whether the complainant is entitled to get the reliefs sought for?
- Reliefs and costs?
Though the 1st opposite party has filed a version disputing the case of the complainant and the 2nd opposite party has adopted the said version, and appeared for settlement talk held on different dates, the opposite parties have not participated in the trial, when the case was taken up for trail for the list. Hence the opposite party set exparte. Exparte evidence has been record. Complainant has been examined as PW1 and got marked Ext.P1 to P4 documents. Ext.P1 is the temporary certificate of registration dated 11.03.2013 in respect of vehicle bearing No.KL-01-AF-TEMP-6318 FIAT India car. Ext.P2 is the statement of transactions starting from 12.03.2013 to 16.07.2014 in respect of the car loan sanction in the name of the complainant. Ext.P3 is the certificate of registration issued in the name of the complainant in respect of the vehicle bearing engine No.0160925 issued on 21.05.2015 with effect from 07.05.2013 to 06.05.2028. Ext.P4 is the insurance certificate cum policy schedule dated 26.03.2014 in respect of the car bearing engine No.0160925.
Though the case was posted for hearing the learned the counsel for the complainant was absent. Hence we have taken up the case for order. Perused the records.
Point No.1
The main contention of the learned counsel for the opposite party in the version is that the agreement entered into between the complainant and opposite parties is a loan agreement and as per the article 22 of the loan agreement any dispute, differences and claims between the complainant and the opposite parties is to be settled by arbitration and in this case arbitration proceedings has already been started and the arbitrator has already passed an award in favour of the opposite party for realization of Rs.7,59,173 from the complainant and said award has become final and therefore this forum has no jurisdiction to entertain the complaint. It is true that arbitration proceedings has been started and an exparte award also has also been be passed. But it is crystal clear from the wordings of section 3 of the Consumer Protection Act that the provisions of the Consumer Protection Act will be in addition and not in derogation of the provision of any other law for the time being in force.
In Jagadamma rice mills V/s Union of India 1991(CPJ 273) it is held that rights and remedies under the act cannot be curbed either by statutory arbitrary provision contain in an earlier law or by some arbitration agreement between parties themselves. It is also settled law that provisions of Consumer Protection Act shall be in addition to and not in derogation of provision of any other law for the time being in force. In the circumstances it is clear that arbitration clause contained in the alleged agreement is not a bar to file a complaint before the Consumer Disputes Redressal Forum.
The points answered accordingly.
Point No.2 & 3
For avoiding repetition of discussion of materials these 2 points are considered together. The specific case of the complainant is that the opposite parties who are the financiers have not issued form 21 to register the vehicle for about 30 days. Hence the RTO insisted ‘NOC’ from the opposite parties. As the opposite parties failed to issue NOC in time deliberately he could not register the car and obtain the registration number and therefore he could not enjoy the brand new car and thereby sustained mental agony apart from financial loss. The dealer who sold the car to the complainant is not a party in this case. The dealer is expected to issue form No.21 which the sale letter of the vehicle noting hypothecation.
It is clear from the available materials that the complainant has obtained a loan of Rs.7,50,000/- from the 1st and 2nd opposite parties and purchased one FIAT Linea car bearing Engine No.0160925 after executing hypothecation agreement in favour of the opposite parties. It is true that the opposite parties have not produced the hypothecation agreement but it is admitted by the complainant that the vehicle has been purchased by availing loan by hypothecating the vehicle. It is to be pointed out the complainant has not pleaded the date of purchase of the car or date of availing the loan. But as per Ext.P3 documents the complainant has got delivery if the newly purchased car and the loan agreement was executed only on 12.03.2013. It is pertinent to note that the complainant has obtained Ext.P1 Temporary Certificate of registration as early on 11.03.2013. In order to obtain Temporary Certificate of registration the dealer has to produce Form No.21 along with form No.21 after noting the details of Hypothecation if any. Accordingly Ext.P1 has been issued prior to the date of taking delivery of the vehicle by the complainant by noting the name of Sundaram Finance, Kochi as HPA. Hence there is no merit in contenting that there was inordinate delay of 30 days in obtaining Form No.21 and also there is no merit in the case of the complainant that Form No.21 (Sales Certificate) has to be issued by the opposite parties who lent loan to purchase the car.
It is clear that Ext.P1 is valid only for 30 days and thereafter it is the duty of the complainant who is the owner of the vehicle to obtain pakka registration by submitting necessary documents such as Insurance Certificate cover note etc and obtain registration number usually no NOC is required to get a new vehicle registered. NOC is required only to cancel the hypothecation. Though the complainant would claim that RTO has insisted to produce NOC, no documentary evidence has been to produced to that effect nor there is any chance of insisting the same after issuing Ext.P1 Temporary Registration Certificate. It is also clear from Ext.P2 statement of the transaction complainant has started the payment of loan installments from very next month of sanctioning the loan and paid almost 10 installments continuously which would go to show that the complainant has no grievance against the opposite party Sundaram Finance Company Ltd. which has granted loan. In the circumstances we find no merit in the case of the complainant that he could not obtain registration for want of NOC from the opposite parties and therefore he has defaulted payment of installments. It is pertinent to note that all necessary particulars regarding the newly purchased vehicle has already submitted to registering authority and obtained Ext.P1 no more certificate or authority from the hypothecating company except insurance certificate it is necessary for obtaining pakka registration. If at all any more documents are necessary it is the duty dealer of the vehicle to obtain and furnish the same. Unfortunately the said dealer is not a party to the complainant.
It is crystal clear from the available materials that complainant has filed this complaint with a malafide intention to avoid payment of installments and penal interest and escaping from the liability of arbitration award by claiming that opposite parties have not issued NOC to obtain registration after obtaining Ext.P1 prior to the taking delivery of the vehicle. In the circumstances, no deficiency in service or unfair trade practice can be attributed against opposite parties and the complainant is not entitled to get any of the reliefs sought for.
The point answered accordingly.
Point No.4
In the result complaint stands dismissed. No cost.
Dictated to the Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 24th day of February 2020.
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:- Muhammed Farook
Documents marked for the complainant:-
Ext.P1:- Temporary certificate of registration dated 11.03.2013
Ext.P2:- Statement of transactions starting from 12.03.2013 to 16.07.2014
Ext.P3:-Certificate of registration
Ext.P4:- insurance certificate cum policy schedule dated 26.03.2014
Witness examined for the opposite party:-Nil
Documents marked for the opposite party:-Nil
