BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 332/2005 Filed on 03/10/2005

Dated : 31..12..2010

Complainant:

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

(By Adv. B. Vasudevan Nair)

Opposite parties:

1. M/s. Kotak Mahindra Primus Ltd., 4^th Floor, Thadikkaran Centre, Palarivattom, Kochi.

    

2. The R.T.O., R.T.O Office, Thiruvananthapuram.

This O.P having been heard on 31..08..2010, the Forum on 31..12..2010 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The facts of the case are as follows: The complainant is the owner of the vehicle namely Tata Sumo SE bearing Reg. No.KL 01 R-5574. The complainant availed the service of the 1^st opposite party to purchase a Car. The complainant executed an agreement hypothecating the said vehicle and availed an amount of Rs.3,00,000/- from the 1^st opposite party. As per the agreement of hypothecation the complainant agreed to repay the amount of Rs.3,71,985/- including interest @ Rs. 10,333 by 35 installments. The entire amount due to the 1^st opposite party as per the agreement of hypothecation have already been paid by the complainant. After making the entire payment due to the 1^st opposite party, the complainant approached the 1^st opposite party for obtaining the 'No Objection Certificate' relating to the said vehicle. In the meantime, the 1^st opposite party issued a letter dated 'Nil' to the complainant intimating the termination of the loan agreement No. 24301304 which the complainant entered into with the opposite party. Through the said letter, the 1^st opposite party demanded an amount of Rs,7,090/- towards penal interest as well as miscellaneous charges due to dishonour of cheque. The complainant issued a reply dated 21/6/2003 to the 1^st opposite party showing the details requesting to exonerate him from making the said payment and also requesting to issue the 'No Objection Certificate' and Form No. 35. He has also disclosed his intention to sell the vehicle. Without considering the said notice, the 1^st opposite party issued an advocate notice dated 7/10/2004 calling upon the complainant to pay an amount of Rs.8,505.33/- together with the notice charge of Rs.150/- within 3 days from the date of receipt of the notice. Because of the non-issuance of the NOC and Form No.35, the complainant is not in a position to dispose off the vehicle. Since the 1^st opposite party failed to issue the NOC and Form No.35, the complainant submitted a petition to the 2^nd opposite party on 7/4/2005 stating that the validity of the contract carriage permit of the said vehicle expires by 19/5/2005 and requesting to cancel the contract carriage permit and issue the certificate to use the vehicle for own use of the complainant. To the said notice the 2^nd opposite party made a reply stating that the NOC from the 1^st opposite party is necessary for considering the application of the complainant. Then the complainant issued a notice through his Advocate on 3/5/2005 showing the statutory provisions that for cancellation of permit, NOC from the financier is not necessary. The 1^st opposite party is bound to issue the NOC of the vehicle and the 2^nd opposite party is bound to cancel the contract carriage permit and issue the certificate to use the vehicle for own use of the complainant. The huge financial loss caused to the complainant is due to the deficiency in service of the 1^st opposite party in not issuing the NOC and Form No. 35 in respect of the vehicle owned by the complainant as well as due to the failure on the part of the 2^nd opposite party to cancel the contract carriage permit. Hence this complaint has been filed.

2. Both the parties remain ex-parte.

Complainant has filed affidavit and marked Exts. P1 to P18 on his behalf. Complainant as PW1 has not been cross examined and hence his affidavit stands unchallenged.

The issues that arise for consideration are:

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

2. Whether the complainant is entitled for the reliefs claimed?

4. Points (i) & (ii): The case of the complainant is that inspite of payment of entire amount due to the 1^st opposite party as per the agreement of hypothecation, 'NOC' and Form No. 35 have not been issued. Though the opposite parties remain exparte, the 2^nd opposite party, the RTO has sent a letter to the Forum which has been addressed to the Govt pleader.

5. As per Ext. P1, the 1^st opposite party has informed the complainant that his loan agreement has been terminated on 30/03/2003 and further the complainant has been asked to make a payment of Rs.7,090/- towards miscellaneous charges due to dishonour of cheques for which the complainant had issued a reply requesting them to exonerate him from making the said payment. As per Ext. P2, the complainant has admitted that since the payment from the Government Department often came very late on certain occasions has caused bouncing of cheques due to shortage of funds with the Bank. Complainant has contended that he is not liable to pay the said amount as per the decision of the Hon'ble Kerala High Court, as it has been held that Financial Institution are not entitled to collect any amount by way of penal interest. The aspect to be looked into is whether the complainant has been asked to pay penal interest. As per Ext. P1, the amount of Rs. 7,090/- has been demanded towards miscellaneous charges due to dishonour of cheques, wherein the complainant himself has admitted in Ext. P2 that due to shortage of funds certain cheques were dishonoured. The 1^st opposite party has never appeared before the Forum to contest the case and deny the allegations levelled against them. Complainant as PW1 has not been cross examined by 1^st opposite party. Hence we find that the complainant is not liable to pay any amount to the 1^st opposite party.

6. The 2^nd opposite party has directed the complainant as per Ext. P9, to surrender the existing permit and produce NOC from hypothecation company for alteration of vehicle. Things being so, the complainant has approached the Hon'ble Kerala Lom Ayukta and obtained an order wherein it has been held that “since Section 51 (7) of the Act is attracted in this case the complainant shall resubmit the application before the 2^nd respondent and the 2^nd respondent shall consider the application without the production of the NOC”.

7. One of the reliefs sought for in the complaint has been decided by the Hon'ble Lok Ayukta . From the above, no deficiency in service has been established by the complainant as against the 2^nd opposite party. We find that only procedural and formal delay has been caused on the part of the 2^nd opposite party which is caused on the basis of the non-production of NOC by the complainant. In the above circumstance, we are of the view that no willful negligence can be attributed on the part of 2^nd opposite party and there has been no deficiency in service on the part of the 2^nd opposite party.

Hence the complaint is partly allowed.

In the result, it is found that the complainant is not liable to pay any amount to the 1^st opposite party and there is no deficiency in service on the part of the 2^nd opposite party. In view of the facts and circumstances of the case there is no order as to costs and compensation.

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 31^st day of December, 2010.

S.K.SREELA, MEMBER

G.SIVAPRASAD PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

C.C.No. 332/2005

APPENDIX

I. Complainant's witness:

PW1 : K. Reghunathan

II. Complainant's documents:

P1 : Copy of the letter issued by the opposite party terminating the loan agreement No. 24301304.

P2 : Copy of reply notice dated 21/6/2003 issued by the complainant

P3 : " Advocate notice dated 3/5/2004.

P4 : " reply notice dated 12/5/2004

P5 : " Advocate notice dated 31/5/2004

P6 : " Advocate notice dated 7/10/2004 issued by the opposite party

P7 : " Advocate notice dated 20/1/2005

P8 : " letter dated 7/4/2005 from the complainant.

P9 : " Memo dated 23/6/2005 addressed to the complainant

P10 : " Letter dated 30/5/2005 addressed to the 2^nd opposite party

P11 : " Letter dated 25/6/2005 from the complainant

P12 : " letter dated 27/6/2005 addressed to the 2^nd opposite party

P13 : " letter dated 10/6/2005 addressed to M/s. Kotak Mahindra Primus Ltd.

P14 : " Order of the Hon'ble Mr. Justice N. Krishnan Nair, UPA Lok Ayukta dated 31/12/2007

P15 : " letter dated 19/11/2008 addressed to the complainant.

P16 : " DD dated 11/12/2008 of SBI, Thiruvananthapuram

P17 : " Form G Intimation Non use of vehicle.

P18 : Copy of Acknowledgement receipt dated 4/7/2005.

III. Opposite parties' witness : NIL

IV. Opposite parties' documents : NIL

PRESIDENT