By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to not to seize the vehicle and to rechart the payment schedule and to give proper receipt for the payments and to pay cost and compensation due to the deficiency of service from the side of opposite parties.

2. Brief of the complaint:- The complainant is the R.C. Owner of the vehicle KL 59-5619 Swaraj Mazda Tipper which is registered with RTO, Wayanad. The complainant has purchased this vehicle for the purpose of his livelihood by way of self employment. One Mr. Anmol, S/o. Sasidharan Nair, the agents of the opposite party has contacted the complainant over telephone and subsequently approached him directly and told that they will arrange vehicle loans at the lowest rate of interest and there will not be any hidden charges, overdue interest etc. Besides, easy repayment facility at economy rate and spot collection was also assured by the agent of the opposite party. Since the complainant was also in search of some financial assistance, he believed the version of the agent of the 1^st opposite party and decided to avail loan from the 1^st opposite party. The complainant had availed an amount of Rs.3,50,000/- from the 1^st opposite party by hypothecating his vehicle KL 59 5619 Swaraj Mazda Tipper. While disbursing the loan amount, it was also promised by the 1^st opposite party that the EMI will be fixed at the rate of Rs.15,000/- per month and the complainant was asked to pay the first installment on the very same date of loan disbursement. When the complainant asked for the repayment chart, the 1^st opposite party has advised him to continue the repayment at the rate of Rs.15,000/- itself and told that the repayment chart will be issued as early as possible. But the complainant was shocked when he received the repayment chart, wherein the monthly installment was fixed as Rs.18,500/- for the first 22 months and Rs.3,544/- for the balance 18 months. When this anomaly brought in to the notice of the opposite party, the above said agent of the 3^rd opposite party has made an assurance with the complainant to the effect that complainant has to pay only Rs.15,000/- and the said agent will pay Rs.3,500/- for six installments and in the meantime they will issue a fresh repayment chart after re-arranging the monthly installment amount. But the complainant has not received any such chart till the date. But the 1^st opposite party is sending notices after notices demanding huge amount under the head of overdue interest, penalty etc from the complainant. Though the complainant has paid about Rs.1,75,000/- towards the repayment the same is not properly accounted by the 1^st opposite party and no receipts were issued for the same. Meanwhile the 1^st opposite party has also stopped to send their collection agents and hence the complainant could not repay the amount in proper time. Thought the repayment could not be effected due to the fault of the 1^st opposite party, they have charged exorbitant penal interest on the loan amount, though they are not entitled to do so and is issuing notices after notice which caused great mental strain to the complainant. The opposite party has sent their gundas and issued registered notices to threaten the complainant and thereby to get undue advantages. The notice sent by opposite party Speaks itself which revels open threatening of the opposite party.

3. The above said acts of the 1^st opposite party is nothing but deficiency of service. The complainant has to suffered a lot of economical losses and had to undergone much mental agonies due to the deficiency of service and unfair trade practice practiced by the 1^st opposite party. Since all the loan transactions were done at Panamaram, at the residence of the complainant, by the agent of the 1^st opposite party, the dispute is triable by this Honorable Forum.

4. Hence prayed before the Forum to direct the opposite parties to not to seize the vehicle and to pay compensation of Rs.50,000/- for the deficiency of service and to give re-chart payment schedule and to issue proper receipts for the payments and to pay cost of the complaint.

5. Notices were served to opposite party No.1 and filed version. In the version opposite party No.1 stated that the complaint is not maintainable in law or on the facts of the case. The reliefs sought for in the complaint are not in accordance with Section 14 of the Consumer Protection Act and they cannot therefore be granted by this Honorable Forum. It is respectfully submitted that this Honorable Forum does not have territorial jurisdiction to entertain this complaint. This opposite Party is not carrying on business or having any branch office within the jurisdiction of this Honorable Forum. All the transactions between the complainant and this opposite party have arisen at Kozhikode. The allegation that transactions were done through an agent at Panamaram at the residence of the complainant is false and hence denied. There is no agent for this opposite party at Wayanad or Panamaram. The 2^nd opposite party is not an agent of this 1^st opposite party and such an allegation is without any basis. Hence the above complaint has to be returned for presentation before the appropriate Forum. The transaction between the complainant and the opposite party is a commercial loan
transaction in respect of a vehicle that can be used only for commercial purposes. The averment that the complainant purchased the vehicle for his livelihood by way of self-employment is untrue and it is made only for the purpose of this complaint. The complainant is not a consumer as defined in the Consumer Protection Act and the complaint is not maintainable for that reason also.

6. The relief sought for in the complaint is in effect for settlement of accounts as regards
the loan account of the complainant with this opposite party. This Honorable Forum does not have jurisdiction with regard to settlement of accounts. The complainant had executed a Hire Purchase Finance Agreement with this opposite party. As per Clause 22 of the said Agreement any dispute, differences and claims between the parties has to be settled by Arbitration. As there is a valid Arbitration Agreement between the complainant and the opposite party, it is only just and proper that the matter is referred for arbitration and the complaint closed. The complainant approached the branch office of the 1^st opposite party in September 2012 for finance for purchase of vehicle and loan of Rs.3,50,000/- was sanctioned by the 1^st opposite party on 30.09.2012. As per the Agreement the complainant had to repay the loan in 40 monthly installments. The first 22 installments agreed between the parties were Rs.18,500/- and the remaining 18 monthly installments agreed upon was for Rs.3,544/-. Each installment had to be paid on or before the 1^st day of every month. Complainant failed to pay the installment amounts on the dates when it was payable. As per clause 2(i) of the agreement executed by the parties, complainant is bound to pay additional interest for defaulted payment at the rate of 3% per month compounded monthly. As the complainant did not pay any installment on the due date, he is bound to pay overdue interest on all the defaulted installments. The claim of the complainant that though he had made payments, this opposite party has not properly accounted the same and receipts were not given is false and concocted for the purpose of this complaint. This opposite party has only charged the amounts due as per the terms of the agreement for the defaulted payments. The averment in the complaint that while disbursing the loan, this opposite party promised the complainant that the EMI will be Rs.15,000/- is false. Copy of the agreement was given to the complainant when the agreement was executed and his claim to the effect that repayment chart was issued only later is false. The complainant has signed the agreement knowing the terms and conditions of the agreement and accepting the same. The complainant, having obtained the benefit of the agreement, is not entitled to demand re-charting of the payment schedule in violation of the agreement. The claim of the complainant that this opposite party demanded exorbitant amounts as overdue interest and penalty is false. This opposite party has demanded only the actual amount due from the complainant. The claim of the complainant that he brought the "anomaly" in the repayment chart to the notice of the opposite party and the agent of the opposite party made agreement with the complainant to the effect that the complainant has to pay only Rs. 15,000/-and the said agent will pay Rs.3,500/- for 6 months and in the meanwhile they will issue fresh repayment chart is a false story concocted for the purpose of this complaint. The claim of the complainant that he had repaid Rs.1,75,000/- which is not properly accounted by the opposite party and receipts have not been issued for the payment are false claims. The complainant had made total payment of only Rs.55,500/- to the opposite party when he filed this complaint. The receipts for all payments made were duly issued to the complainant. The complainant has grossly defaulted from the very first installment itself.

7. The allegation of the complainant that this opposite party sent notice to the complainant demanding exorbitant amount, is false. The amount shown in the notices issued by this opposite party is the actual amount payable by the complainant as on the date of notices as per the terms of the agreement executed by the complainant and this opposite party. The further averment that since the opposite party stopped to sending their collection agents the complainant could not make the repayment in time is false. There are no collection center or collection agents for this opposite party at Wayanad. It was the obligation of the complainant to pay each installment on or before the due date by tendering it at the branch office of this opposite party or transferring it into the account of this opposite party. The reason given for the non-payment of the monthly installments is baseless and made only to wriggle out of the default committed by the complainant in making the due payment of the installments as per the agreement dated 30.9.2012. The allegations regarding sending 'gundas' and making threats are false and baseless and hereby denied. This opposite party has not send any person or in the least to seize the vehicle. This opposite party has not committed any deficiency of service or unfair trade practice or obtained any undue advantage. The claim of the complainant that the act of the opposite party caused mental agony and economic loss to him is baseless. The complainant has no cause of action to approach this Honorable Forum. The complainant has approached this Honorable Forum with the malafide intention of evading payment of monthly installments and making unlawful gain at the expense of this opposite party. This Honorable Forum will not be justified in ordering this opposite party to act against the terms of the agreement executed by the parties. This Honorable Forum cannot issue any direction to this opposite party to not to seize the vehicle as this opposite party is entitled to do so by the due process of law. This Honorable Forum cannot also direct to "rechart the payment schedule" against the terms of the agreement or to withdraw the notices. Such a reliefs claimed in the complaint are not reliefs that can be granted as per Section 14 of the Consumer protection Act. Clause 14(u) (b) of the agreement empowers this opposite party to take over possession of the hired asset, sell and realize the due amounts. This opposite party is not liable to pay Rs.50,000/- or any other amount as compensation to the complainant. The complainant has no right to claim any compensation. Proper receipts have always been issued by this opposite party for all the payments received. Hence there are no circumstances warranting grant of such a direction. The complaint is vexatious and experimental in nature and this opposite party has been unnecessarily dragged before this Honorable Forum. Hence this opposite party is entitled for compensatory costs from the complainant.

8. Opposite party No.2's notice intimation served on 26.08.2013 and 27.08.2013 respectively and notice returned unclaimed and opposite party No.2 set ex-parte on 11.12.2013. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 is marked. From the side of opposite party Ext.X1 is also marked. Ext.A1 is the copy of Registration Certificate. Ext.A2(a) is the chart issued by opposite party. Ext.A2(b) to A2(f) is the payment Receipts. Ext.A3 is the Demand Notice for payment and overdue for Rs.41,919/- dated 10.01.2013. Ext.A4 is the Agreement between complainant and opposite party No.2. Ext.A5 is the Reply Notice send by complainant to opposite party No.1. Ext.X1 is the returned unclaimed registered letter send from the Forum to the opposite party No.2. Wherein it is stated that intimation served on 26.08.2013 and 27.08.2013 respectively and returned to sender. The receipts produced by complainant as Ext.A2 series shows a repayment of Rs.76,500/-. Opposite party No.1 has not adduced any oral evidence.

9. On considering the complaint, version, depositions and documents the Forum raised the following points for consideration:-

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

2. Relief and cost.

10. Point No.1:- On perusing the Ext.A1 Registration Certificate and Ext.A2 chart it is proved that the loan is admitted by both parties but when considering the Ext.A4 agreement we opine that complainant and opposite parties are agreed to pay and to receive EMI of Rs.15,000/- only per month but instead opposite party No.1 issued a chart for Rs.18,500/-. That is why the opposite party No.2 is agreed to repay Rs.3,500/- to the opposite party No.1 for six months. Hence we are in the opinion that not providing an agreed EMI(rate) of Rs.15,000/- is a deficiency of service from the side of opposite party No.1. This Point is found accordingly.

11. Point No.2:- Since the Point No.1 is found against the opposite party No.1 he is liable to pay cost and compensation.

In the result, the complaint is partly allowed and the opposite party No.1 is directed to provide fresh chart of EMI of Rs.15,000/- each per month, for the balance amount due to opposite party No.1 ie Total amount to be paid is Rs.4,70,792/- (18,500x22+3544x18). Amount already paid by complainant is Rs.76,500/-. The remaining amount is Rs.3,94,292/- (4,70,792-76500 =3,94,292/-) that is to be divided in to equal EMI of Rs.15,000/- each (ie 26x15000+1x4292), opposite party No.1 is also directed to issue proper receipts for payment of EMI's and also directed not to seize the vehicle if the installments remitted in time. The opposite party No.1 is also directed to pay Rs.5,000/- (Rupees Five Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand)as cost of the proceedings. The opposite party No.1 is directed to comply the order within one month from the date of receipt of this Order. Complainant is also directed to repay the installments as per the new chart rate in time. Otherwise the opposite party No.1 is at liberty to take any appropriate action according to law.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31^st day of August 2015.

Date of Filing:31.07.2013.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAAD.

APPENDIX.

Witness for the complainant:-

PW1. Moosa. Complainant.

Witness for the Opposite Parties:-

Nil.

Exhibits for the complainant:

A1. Copy of the Registration Certificate.

A2(a). Chart issued by opposite party .

A2(b) to (f). Payment Receipts (5 Nos).

A3. Demand Notice. Dt:10.01.2013.

A4. Agreement.

A5. Reply Notice. Dt:05.02.2013.

Exhibits for the opposite parties:-

X1. Returned unclaimed Registered Letter.

Sd/-

PRESIDENT, CDRF, WAYANAD.

a/-