BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No: 327/2005 Filed on 26/09/2005

Dated: 15..06..2010

Complainant:

K. Reghunathan, Krishna Bhavan, Mosque Lane, Kesavadasapuram, Thiruvananthapuram.

(By Adv. B. Vasudevan Nair)

Opposite party:

M/s. GMAC Financial Services, Padma Complex, 11^th Floor, 467, Anna Salai.

(By Adv. Pallichal S.K. Pramod)

This O.P having been heard on 27..02..2010, the Forum on 15..06..2010 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The facts of the case are as follows: The complainant who is the owner of Fiat Uno Car bearing Reg.No.KL-01 Q 7979 had executed one hypothecation agreement with opposite party wherein the complainant had agreed to repay the entire loan amount in 48 installments starting from the month of September 1999 onwards. For the prompt payment of the said installments, the complainant entrusted 48 signed cheque leaves each for an amount of Rs. 10,000/- stating specific dates. The complainant made prompt arrangements to honour the cheques on presentation and the opposite party did not make any complaint about the honouring of any of the cheques entrusted by the complainant. Thereafter complainant had sent letters enquiring the same. Instead of giving reply to the said letters, one Mr. Swaminathan issued the letter dated 7/9/2004 demanding to pay an amount of Rs. 10,000/-. It is pertinent to note that no reference has been made in the said letter about the previous notices issued by the complainant. It is also pertinent to note that the opposite party has not made any complaint about the dishonouring of any cheques issued by the complainant. Thereafter the complainant issued a notice dated 23/12/2004 through his advocate directing the opposite party to hand over the Form No.35 with the actual loss sustained by the complainant within 15 days from the date of receipt of the notice. Even after the receipt of the said notice, the opposite party neither sent a reply nor made an attempt to hand over the Form No.35 with the actual loss sustained by the complainant. Because of the non-issuance of the Form No.35, the complainant is not in a position to dispose off the vehicle. The opposite party is willfully evading from the payment of the actual loss sustained by the complainant together with Form No. 35 even after repeated demand from the complainant. Hence this complaint has been necessitated for redressal of his grievance.

2. The opposite party has filed their detailed version contending as follows: The complaint is not maintainable. The vehicle bearing No.KL-01-Q-7979 is owned by the opposite party Company as per hire purchase agreement No.70660102 dated 23/09/1999. The complainant is only a hirer as per the said agreement and he is not the actual owner. The complainant is only a hirer and monthly hirer charges of Rs.10,000/- alone is to be paid in 48 installments. The complainant entered a hire purchase agreement and not a hypothecation agreement. The complainant was not prompt in honouring the cheques issued as against the hire charges. The 37^th installment of hire charges was not yet received in the office of the opposite party. The belated payment attracts an amount equal to 3% per month of each installments of hire charges or part there of that remains unpaid. For the dishonoured cheques the complainant is liable to pay the late charges of Rs. 18,720/- as on 5/10/2006. Issuance of Form No.35 for the purpose of lifting hire purchase endorsement in the RC book can only be issued after clearing all dues and other charges. The complainant has not sustained any loss as alleged and there is no iota of truth in it. The notice alleged in the complaint is a false story so as to suit the allegations. Non-issuance of Form No.35 is not due to the latches of the opposite party. The opposite party is liable to issue Form No. 35 in case of no dues and charges pending. In this case the complainant had defaulted the prompt payment and dues are pending. Hence prays for dismissal of the complaint with costs.

3. Complainant has filed affidavit and marked Exts. P1 to P7 on behalf of the complainant. Opposite party had no evidence.

The following issues arise for consideration:

1. Whether there is deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to claim the reliefs sought for?

4. Points 1 & 2 : The complainant pleads that even after the payment of the last installment, the opposite party with whom the complainant had executed a hypothecation agreement hypothecating the car has not issued Form No. 35. When the complainant made request for the same, the opposite party demanded Rs.18,698/- towards dues and furthermore the complainant has sworn that the opposite party has never brought to the notice of the complainant regarding dishonour of any of the cheques. Though the opposite party has filed a detailed version contending very strenuously the allegations levelled against them, the same are not supported by any evidence. Moreover, the complainant has not been cross examined and hence the affidavit of the complainant also stands unchallenged.

5. Exts.P1, P2 & P3 are the requests for issuance of Form No. 35 seen sent to the opposite party. As per Ext. P4, the opposite party has claimed an amount of Rs.10,000/- towards dues till 14/9/2004 and as per Ext. P6, the complainant has been asked to remit an amount of Rs. 18,698/- before 31/12/2004. The complainant has filed sworn statement that the entire amounts were paid by him. As the opposite party has not cross examined the complainant, the affidavit of the complainant stands uncontroverted.

6. From the above discussion, and on the strength of the unchallenged affidavit we have come to the conclusion that the complainant has succeeded in establishing his complaint and the act of the opposite party in not issuing Form No. 35 amounts to deficiency in service.

In the result, complaint is allowed. The opposite party shall give Form No. 35 to the complainant along with a compensation of Rs. 3,000/- and a cost of Rs.1,000/- to the complainant within a period of 2 months from the date of receipt of the order, failing which the entire amount shall carry interest @ 9% from the date of order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of June, 2010.

S.K. SREELA, MEMBER.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

C.C.No.327/2005

APPENDIX

I. Complainant's witness: NIL

II. Complainant's documents:

P1 : Copy of letter dated 17/2/2003

P2 : " " 22/4/2004

P3 : " " 06/08/2004

P4 : " " 07/05/2004

P5 : " " 30/09/2004

P6 : " " 09/12/2004

P7 : Advocate Notice dated 23/12/2004

3. Opposite party's witness : NIL

4. .Opposite party's documents : NIL

PRESIDENT