R. VIJAYAKUMAR, KEMBER.

            This is a complaint filed  under section 12 of Consumer Protection Act.

          The complainant ‘s case is that he had purchased an Ashok Leyland Bus bearing No.KL.5D /4434, availing financial assistance of Rs.2,75,000/- from the 1^st opp.party as per higher purchase agreement.   Subsequently the vehicle was transferred to the complainant from the 2^nd opp.party.   Tenure of the repayment was 36 months.   The complainant had remitted the entire loan amount Rs.5,85,000/- along with other charges.  Since the entire amount was paid in , the opp.party had handed over the concerned documents procured from   the complainant along with No Objection Certificate for cancellation of  Hire Purchase endorsement  dated  1.10.2012.  But the duplicate key  and other documents including cheque leaves were not returned to the complainant even though the complainant had repeatedly requested.   The 1^st opp.party is duty bound to return the key  and other documents in respect of hire purchase agreement to the complainant.   The act of opp.party amounts to deficiency in service and it resulted in severe tension and mental agony to the complainant.   The 1^st opp.party  made attempts  to caught hold of the vehicle and retain the complainant from operating the  bus service.   Therefore  the complainant filed this complaint for return of key with all documents including security cheques leaves and NOC.   The complainant further prayed for compensation Rs.2000/- and cost of  proceedings.

          The opp.parties 1 and 2 filed separate version.   The 1^st opp.party contented that the complaint is not maintainable in the Forum as the complaint is bad for misjoinder and as the complaint will not come under the purview of the Consumer Protection Act.  The fact is that the complainant availed a loan for an amount of Rs.2,25,000/- from the 1^st opp.party  branch  at Kollam by pledging Ashok Leyland Bus bearing Reg.No.KL 5D 4434 Lease Agreement No.QLN/90358 has been executed in respect of the vehicle on 25..11.2004.   As per terms and conditions of the agreement the complainant had agreed to return the amount in 36 monthly instalments  from 25..12..2004 to 24..11..2007.  No timely payment was made by the complainant.   As per agreement if the repayment is defaulted, the complainant shall pay compensation at the rate of 36% per annum from the respective date of default until the date of payment in full.   The complainant failed to comply with the terms and conditions of the agreement.   Even then  the opp.party had given maximum convenience and accommodation.   Absolutely there is no bonafides in the complainant.   As on 21..7..2008 an amount of Rs.2,04,795/- including over due charges is due from the complainant.   After 3..1..2008 the complainant never approached the 1^st opp.party on their Branch at Kollam.   The allegation that the complainant had remitted Rs.5,85,000/- to the 1^st opp.party is absolutely false.   The 1^st opp.party has no practice of collecting cheque leaves and keeping duplicate key from the customer as a security.   The complainant never approached or requested for statement of accounts.   The statement that the complainant paid the entire loan amount and the final instalment was paid  on 15..10..2005 is absolutely false.   The allegation that the1st opp.party had made several attempts to caught hold of the Bus and restrain the complainant from operating the vehicle and to make some damages to the vehicle is absolutely false.   The story of seizure  of vehicle is cooked-up . The opp.party branch at Kadappakkada, Kollam is ready to terminate the agreement and issue No Objection Certificate to the concerned authorities if the complainant paid the defaulted amount Rs.2,04,795/-. The complaint is frivolous, vexatious and it is liable to be dismissed with compensatory cost.

          The complainant filed IA for impleding additional 3^rd opp.party.  IA is allowed and as per order in IA the Additional 3^rd opp.party  impleaded.   Additional 3^rd opp.party filed memo adopting contention of opp.party 1.

          The 2^nd opp.party filed separate  version contenting that he is not a necessary party to the litigation and therefore the complaint may be dismissed with cost.

The points for consideration in this case are:-

     1. Whether the complaint is maintainable in the Forum?

2.     Whether there is any deficiency in service from the part of opp.party?

3.     Compensation and cost.

From the side of the complainant PW.1 examined.   Exts. P1 to P3 and D1 to D7 marked

Opp.party 1 has no oral evidence.  Heard both sides.

POINT : 1

     The opp.party  contented that the complainant is no way maintainable in the Forum as the complainant is not a consumer. 
The learned counsel for the opp.parties 1 and 3 has argued that it is seen in Ext. D1 that the complainant is working  as a Naik in Military Service  and has already admitted that he has not purchased the vehicle for earning his livelihood.  He had purchased the vehicle for commercial purpose.  Hence the complainant is not a consumer as envisaged in Consumer Protection Act.

     The learned counsel for the complainant argued that the complainant is a consumer in the transaction and as the complainant remitted amount as per the agreement.  The opp.parties are  bound to return the documents and key of the vehicle.  Opp.parties  failed to return the same with statement will attract the complainant as a consumer in the provisions of the Act.

     As argued by the learned counsel for the opp.party, the complainant admitted that he had purchased the vehicle for business purpose.  But the pertinent point in this regard is that there is no dispute regarding the vehicle in relation to the price, defects etc.   The complainant had pledged the vehicle with the opp.party and availed financial assistance.   The dispute in this case is regarding the unfair trade practice and deficiency from the opp.parties  in their service.  The opp.party had no contention that they had not provided financial assistance to the complainant as per the agreement and on the basis of consideration.  In this manner the opp.party 1 and 3 are service providers and complainant is a consumer   Hence the contention of the opp.parties regarding maintainability will not sustain.

Points 2 and 3

According to the complainant he had purchased the Ashok Leyland Bus bearing No.KL.5D 4434 availing finance assistance from the 1^st and 3^rd opp.parties.   The said vehicle was owned by the 2^nd opp.party earlier and transferred in the name of the complainant.   As per agreement No.QLN9005/00 the complainant had remitted the  entire amount of  Rs.5,85,000/- in 36 monthly instalments and the last date of installment was 15.10.2005.  But even though the complainant had remitted the full amount as per the agreement the opp.party did not return blank cheque leaves, other documents and  duplicate key to the complainant.

According to the opp.parties 1 and 3 the complainant had availed financial assistance from 3^rd  opp.party on 25..11.2004 as per agreement No.QLN/90398 by pledging the Ashok Leyland Bus bearing No.KL5D4434.   The vehicle was sold to the complainant by the 2^nd opp.party.  Formerly the vehicle was owned by the 2^nd opp.party.  He had purchased the vehicle availing financial assistance from the 1^st and 3^rd opp.parties executing a lease agreement.  While this agreement was in force, the complainant approached the 3^rd opp.party and requested that the complainant and Baiju, the 2^nd opp.party entered into a sale agreement with respect to the said vehicle and further requested to transfer the vehicle  in his favour and also agreed to clear the existing liabilities.  The 2^nd opp.party also consented for the same and as per the request of 3^rd opp.party, RTO transferred the vehicle  in favour of the complainant by order dated 29.3..2004.   After the clearance of the said Loan the complainant had availed the  fresh loan for Rs.2,25,000/- pledging the same vehicle and it is evidenced by D2.  The complainant agreed to repay the amount in 36 monthly instalments along with interest and insurance expenses.   The 1^st date of repayment was on 25..12..2004 and the last due date was on 24..11.2007.  The complainant remitted only Rs.2,95,700/-.  An amount of Rs.2,04,795/- is due to the 1^st opp.party from the complainant.  It is clearly evidenced by Ext. D7, statement of accounts.   The 1^st and 3^rd parties are  ready to terminate the agreement and to issue NOC for terminating the hire purchase agreement if the complainant paid the due amount.

          Admittedly by both parties that the vehicle was previously owned by the 2^nd opp.party.  He had purchased the vehicle availing financial assistance from the 1^st and 3^rd opp.parties as per lease agreement.  It is also admitted that while the agreement was in force, the said vehicle was sold to the complainant with the consent of 1^st opp.party and 1^st opp.party had given NOC to the RTO.  Subsequently the vehicle was transferred to the complainant on29..3..2004 as he had agreed to clear the existing liabilities also is admitted.

          The contention of opp.party is that a fresh agreement was executed by the complainant after clearing the existing liabilities.  According to the complainant no fresh agreement was executed on 24..11..2005.  It is seen in Ext.P2 series that the opp.parties had received amounts in  the name of 2^nd opp.party upto 27.10.2004 as per hire purchase agreement QLN 90051/2000.  It is evident that even after the transfer of vehicle, the opp.parties 1 and  3 had given  receipts in favour of the 2^nd opp.party.  If there was  an agreement between the complainant and 1^st  opp.party that  the arrears and existing liabilities will be cleared by the complainant and on the basis of the agreement the NOC was given, the liability to clear the arrears is upon the complainant only.   The opp.parties had admitted that the complainant had cleared all the liability.   The question arising here is that why the opp.party had not issued receipts in favour of the complainant.

          Admitted by the parties that the vehicle  was purchased by the complainant from 2^nd opp.party.

          Allegations in the complaint is that even though the complainant had cleared all the liabilities as per hire purchase agreement No.QLN90051/2000 remitting Rs.5,85,600/- the opp.parties 1 and 3 did not return the  documents including security cheques 6  in numbers, termination letter and key.   The complainant had not produced the hire purchase agreement No.QLN90051/2000 or any document to show that he had paid Rs.5,85,600/-  and cleared all the liabilities as per hire purchase agreement No.90051/2000.  It is worth pointing out that hire purchase agreement No.90051/2000 was executed between the 1^st  opp.party and the 2^nd opp.party on 22..10..2002  and the complainant was not a party to that agreement.   The vehicle was purchased by the complainant and transferred in the name of the complainant  on 20..6..2004.  In Ext. P1it is endorsed that “with effect from 20..3..2004  retaining the existing HPA” and it was signed by the Additional Registering Authority , Kollam on 29..3..2004.

          The opp.parties case is that the complainant after closing the previous agreement No.QLN 90051 again approached the opp.parties for availing financial assistance pledging the said vehicle and a new lease agreement has been executed on 25..11..2004 as agreement No.QLN 90358.   The complainant denied and has stated that no fresh agreement was executed.  But on perusal of Ext. P2 it is seen that the opp.party had issued receipts to the complainant as per the new Lease agreement No.QLN 90358 for the remittances from 17..1..2005.   The 1^st payment after  25..11..2004 was made on 17..1..2005 No Objection was raised by the complainant regarding the issuance of receipts as per the agreement No.QLN.90398. While cross  examination PW.1 admitted that Ext.D2 is the agreement executed by opp.parties and the complainant   But he had disagreed  with opp.party’s statement that an amount of Rs.2,25,000/- was received as financial assistance.  While in cross examination the learned counsel for the opp.party put the question that  “D2 ±œˆ¡ñ« 17..1..2005 »¤Ä‎ý 3..1..2008 ó¨ñ  ±ˆ»« ¨Äע𤫠•¿¡¨Ä𤫠2,69,200/-  ñ¥œ ›¢¹‏þ opp.party 3 H •Ðµ¤?  PW.1 answered that :Ĥˆ •Ðµ¤ …±Ä¨ð¼® •ú¢ð¢¿.  D2 ±œˆ¡ñ« •¿.  “but  he had further admitted that D3 series, receipt 34 in  numbers  are issued in his favour.   The remittance as per  Ext.D3 series has been made as per the fresh agreement bearing No.FL QLN 90358.  From these facts it is obvious that a fresh agreement was executed between the complainant and opp.parties

        We have carefully perused Ext. D2 in detail.  It is a lease agreement between  the complainant  1^st  and 3^rd  opp.parties executed on 24^th day of November 2004.   Period of Lease agreement shown as three years in annexure schedule II and it is also mentioned that Rs.9880/-  payable for 35 monthly instalments and Rs.9783/- is payable on 25..11..2007 Total amount of repayment is Rs.355583/- .  The Lease amount, rate of interest, penal interest if any, rate of over due charges were not mentioned in Ext. D2.     No one was attested  as witness.  Moreover all these ext. . D2 is only  a  photocopy of the notarised    agreement.  It has no authenticity.

        Ext. D7 is the statement of account produced by the opp.party.  It is mentioned in Ext. D7 part B that advance amount was Rs.2,25,000/- financial charges Rs.1,06,582.50and the insurance charges Rs.24,000/- .  In this statement also the opp.party had not mentioned the rate of interest and how they had calculated the financial charges Ext. D7  part C shows that the Insurance charges was exceeded to Rs.47,850/- over due charges calculated as Rs.1,21,062/-.  Thus the settlement  amount calculated as 500495/-.   Amount of Rs.295700/- was collected from the complainant and Rs.204795.00 is the existing liability as on 27..7..2008.  It reveals that an exorbitant amount was calculated without giving any knowledge to the complainant regarding the rate and calculation of over due charges.

        Collection of exorbitant amount  as overdue charges from the Loanee without  knowledge or giving any information is deficiency in service.  In these circumstances we are of the opinion that it is  reasonable to calculate interest at the rate of 12% per annum.

        For all the facts  and evidences discussed above we find that there is deficiency in service from the part of opp.party 1 and 3

        In the result, the complaint is allowed in part.   The opp.parties 1 and 3 is directed to terminate the lease agreement, to issue NOC and to return the documents along with key to the complainant on receipt the balance amount from the complainant after  deducting the paid up  amount Rs.295700/- from the total  amount accrued as the principal amount Rs.225000/- along with  interest at the rate of 12% per annum from 25..11.2004 till  the date of filing of the complaint          and insurance premium amount Rs.47850/-  along with interest at the rate of 12% per annum from the respective dates  of payment till 1..3..2008  The opp.parties are further directed to pay compensation Rs.2000/-  and cost  Rs.1000/- to the complainant.

        The order is to be complied with within one month of the date of receipt of the order

          Dated this the    31^st    day of March, 2012.

                                                                   I n d e x

List of witnesses for the complainant

PW.1. – P.K. Uthaman

List of documents for the complainant

P1.  Copy of RC Book

P2.  Receipts

P3  Hypothecation chart

List of documents for the opp.parties

D1.  Copy of Military Identity card

D2.  Agreement

D3.  series – Receipts

D4.  Motor Insurance certificate cum policy schedule

D5.  Motor Insurance certificate cum policy schedule

D6. Motor insurance certificate cum policy schedule

D7. Statement of accounts

                                                                                      C.C.NO.45/2008