DATE OF FILING : 20.5.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29^th day of June, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.98/2009

Between

Complainant : Asha Shijo, W/o Shijo Francis,

Arppathanath House,

Arikkuzha P.O.,

Thodupuzha

Idukki District.

(By Advs: K.M. Sanu & Prince J. Pananal)

And

Opposite Parties : 1. M/s Shriram Transport Finance Company Ltd,

Ernakulam Branch,

Chittoor Road,

Ernakulam.

2. M/s Shriram Transport Finance Company Ltd.,

Moovattupuzha Branch,

Kannaparamban Building,

Mudavoor P.O.,

Vazhappilly, Moovattupuzha,

Ernakulam.

3. M/s Shriram Transport Finance Company Ltd.,

Capital Building,

Kattappana P.O.

(All by Advs: Philip T. Varghese & Sarath. S)

O R D E R

SRI. LAIJU RAMAKRISHANAN (PRESIDENT)

Complainant's family is living with the earnings from a service Bus bearing registration number KL 06 B 7749 owned by the complainant. The complainant availed a vehicle loan of Rs.2,75,000/- from the opposite party Finance Company, with a hypothecation agreement on 1.5.2006. As per the agreement, the complainant shall pay the insurance premium amount including the expenses of the agreement and the collection charge of the loan. The total amount comes around Rs.3,76,063/- and the repayment is in 36 monthly instalments to the opposite party. The opposite party got signed in several papers from the complainant, her husband and from her surety, at the time of availing the loan. Blank cheque leaves were also signed by the complainant, 3 in numbers. Another 3 numbers of cheque leaves were signed by her husband were also given as security for the loan. The complainant promptly paid 9 instalments of the vehicle loan which is of Rs.10,450/- each to the opposite party. After that the tax period of the vehicle was expired and so the complainant approached the opposite party to get the Registration Certificate of the vehicle for

paying the road tax of the vehicle. But the opposite party denied the same. So the complainant neglected to pay the further instalments to the opposite party. The opposite party threatened to repossess the vehicle forcibly from the complainant because of the non-payment of the loan. So the complainant was not able to ply the vehicle through the road. On 10.9.2008, one of the employee of the opposite party named Shyam, approached the complainant at her residence at Arikkuzha and an agreement was created by them, it was got signed by the complainant, her husband and her mother-in-law. The R.C. Book also returned to the complainant. After that the complainant paid the road tax promptly, but she spent a huge amount for curing the defects of the vehicle because it was kept in her custody for a long period. Revenue recovery proceedings were initiated against the complainant because of non-payment of the tax. The opposite party sent a notice on 20.4.2009 to the complainant demanding the dues amount of the loan, but the correct details and statement were not mentioned in that demand notice. In the notice, it is written that, there are 41 instalments for the vehicle loan and an EMI comes around Rs.9,725/- in the first month and Rs.9,707/- for the balance months. But as per the agreement created between the complainant and the opposite party, the EMI is Rs.10,450/- for 35 months. The complainant approached the opposite party for getting details of the loan and statement of account. But the opposite party was not ready to reveal the same to the complainant, after repeated demands. They threatened the complainant that they will produce the blank cheque before the bank for their favourable amount and proceed unnecessary litigations against the complainant. On 5^th of May 2009, the opposite party sent a telegraph message to the complainant stating that they will repossess the vehicle. The opposite party is not having any right to repossess the vehicle from the custody of the complainant and they are also demanding for an exorbitant amount which the complainant is not legally bound to pay. The complainant is ready to repay the loan amount which was availed from the opposite party as Rs.3,76,063/-. The opposite party deliberately caused mental agony and financial loss to the complainant and so this petition is filed for getting compensation to the tune of Rs.75,000/-.

2. In the written version filed by the opposite party, it is stated that the complaint is not maintainable because the transaction between the complainant and the opposite party is a commercial transaction for a commercial vehicle. As per the agreement executed between the complainant and the opposite party, if any dispute raises about the loan transaction, the parties have to be referred for arbitration. The complainant approached this Forum suppressing the material facts. The complainant never complied with the terms and conditions of the agreement dated

1.5.2006. So she requested for rescheduling the loan. As per the request, the loan was rescheduled on 3.9.2007. The loan amount was re-fixed at Rs.2,69,700/- with interest there on, was agreed to be repaid by the complainant in 42 monthly instalments starting from 5.10.2007 and payable on or before 5^th day of every month thereafter. The first 41 instalments were to be for Rs.9,725/- and the last instalment was to be for Rs.9,707/-. The complainant has paid only one instalment of Rs.9,725/- on 13.11.2007 after getting the loan rescheduled and executing the agreement on 3.9.2007. The opposite party has every right to repossess the vehicle as the complainant has defaulted in payment of the instalments. Copies of the agreement were given to the complainant at the time of execution of the agreement. The complainant never paid 9 instalments of the loan and the opposite party never kept the R.C. Book illegally. The documents dated 10.9.2008 was executed by the complainant and her family members on their own free will and the claim of the complainant that such a document was executed for getting the R.C. Book is a false statement. The agreement dated 10.9.2008 was given by the complainant to the opposite party purposely so as to prevent the opposite party from taking any action against the complainant, including the repossession of the vehicle. The said agreement was executed in the office of the opposite party at Muvattupuzha and not in the residence of the complainant. The complainant never approached the

opposite party after receipt of the notice. The offer of the complainant to pay Rs.3,76,063/- to the opposite party for the settlement of the liability to the opposite party is without any merit. As on this date, a sum of Rs.4,57,825/- is due from the complainant. The complainant has not sustained any mental agony, hardship or loss due to any action of the opposite party. So the complaint is liable to be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PWs1 to 4 and Exts.P1 to P9 (series) are marked on the side of the complainant and oral testimony of DW1 and Exts.R1(series) to R3 (series) are marked on the side of the opposite parties.

5. The POINT :- The complaint is filed for restraining the opposite party from forcible possession of the vehicle from the custody of the complainant and also for getting back the documents given by the complainant which were given as security for the loan. The complainant is examined as PW1. PW1 availed a loan of Rs.2,75,000/- from the opposite party with a hypothecation agreement dated 1.5.2006. As per the agreement, the complainant shall pay Rs.3,76,063/- in 36 EMIs and the repayment schedule issued by the opposite party to the complainant at the time of availing the loan is marked as Ext.P1. The opposite party got signed in several papers which were filled, and not filled, from the complainant and her surety, and also from her husband. 3 blank cheque leaves signed by the complainant as cheque Nos. 377131, 377132 and 377133 of Canara Bank, Thodupuzha branch and 3 blank cheque leaves with signature of her husband which were in Nos. 377111, 377112 and 377113, were given as security for availing the loan. At the time when PW1 requested for the R.C. Book of the vehicle for paying road tax of the vehicle, the opposite party denied the same. So the complainant was not able to ply the vehicle through the road from 1.1.2008 to 14.12.2008 and so PW1 was not able to continue to pay the instalments thereafter. An agreement was created by the opposite party and got the signature of the complainant, her husband and her mother-in-law by one Mr.Shyam, who is an employee of the opposite party. The R.C. Book was also handed over to the complainant. PW1 spent Rs.30,000/- for repairing the vehicle because the vehicle was kept in the complainant's residence for a long time. Revenue recovery proceedings were initiated against the complainant for the non-payment of tax  which amounts to Rs.20,000/-. A complaint was given to the Joint Regional Transport Officer, against the opposite party for getting the R.C. Book. For getting details of the complaint, PW1 filed an application under Right to Information Act. Copy and reply of the same is marked as Ext.P2 (series). And it is stated that a complaint was received on 26.2.2008 in the office of the Joint Regional Transport Officer. A notice was received from the opposite party with false statement about the loan account and it is marked as Ext.P3. In that statement it is written that the loan instalments were 42 in numbers, each amounts to Rs.9,725/- and the last instalment is Rs. 9,707/-. But actually, the instalments were Rs.10,450/- each with 35 in numbers and the last instalment comes to Rs.10,313/- as per the agreement created on 1.5.2006. The opposite party threatened that they will take possession of the vehicle and a telegraph message was also received from the opposite party for the same which is marked as Ext.P4. The statement of accounts were not given by the opposite party to the complainant. Because of the threaten of the opposite party, PW1 was not able to ply the vehicle through the road and the income for their daily bread was also lost by the act of the opposite party. A loss of Rs.750/- was caused per day, because of the act of the opposite party. It was from 1.1.2008 to 14.12.2008 and a total loss of Rs.2,62,500/- was caused to PW1 because of the same. PW1 paid Rs.30,000/- for the repair of the vehicle and Rs.20,000/- as Revenue Recovery expense. Nine instalments were paid by PW1, as per the agreement, each comes amount to Rs.10,450/-. The opposite party never rescheduled the loan as per the written version. The repayment was not done because the vehicle was not plying through the road. The Deputy Thahsildar, Revenue, was examined as PW2. Revenue Recovery proceedings were initiated against the complainant and the letter for the same is marked as Ext.P5. The government, made the instalments to the proceedings and the complainant paid Rs.13,386/-, in 4 instalments. Total amount was Rs.20,475/-. Senior Superintendent of R.T. Office is examined as PW3. PW3 deposed that a complaint was received from the complainant, stating R.C. Book of KL6B 7749 was illegally kept by the opposite party and the same was received on 22.2.2008. Another letter from All Kerala Consumers Helpline General Secretary also received on 23.2.2008, stating the same and it is marked as Ext.P6 (series). A reply was given from the RTO stating that the matter concerned is a criminal dispute and the police has the power to interfere it. A reply was given and the copy of the reply with acknowledgement card are marked as Ext.P7 (series). The husband of the complainant was examined as PW4. PW4 is the conductor of the bus owned by the complainant and at that time, in 2008-2009, the vehicle was having an income of Rs.700/- to 800/-. Statement showing the same prepared by PW4 about the income of the vehicle is marked as Ext.P8 (series). Brother of PW4 was the driver of the vehicle. Three cheque leaves were given as security for the loan. Certain papers were also got signed by the opposite party. The agreement created between the opposite parties, PW4 and with his wife is marked as Ext.R1 (series). The signature in Ext.R1 and Ext.R2 are also admitted by PW4. And Ext.R2 was signed at the residence of PW4 by the approach of one Mr.Shyam.

The Senior Field Executive of the opposite party is examined as DW1. The agreement was created between the complainant and opposite parties on 10.5.2006. The complainant never complied with that agreement. So as per the request of the complainant, the loan was rescheduled with the agreement created on 3.9.2007 and it is marked as Ext.R1 (series). The loan amount was re-fixed as Rs..2,69,700/- adjusting the payment done by the complainant after the agreement dated 1.5.2006. So the complainant should pay Rs.2,69,700/- to the opposite party in 42 monthly instalments starting from 5.10.2007 and payable on or before 5^th day of every month. First 41 instalments are of Rs.9,725/- each and the last instalment is for Rs.9,707/-. But the complainant has paid only one instalment of Rs.9,725/- on 13.11.2007 after getting loan rescheduled. Ext.R2 agreement was created by the complainant for preventing the opposite parties from taking any action against the complainant including repossession of the vehicle. The said agreement was executed on the opposite party office at Muvattupuzha. There is a due of Rs. 5,99,498.76/- from the complainant and the statement of account of the complainant's loan is marked as Ext.R3 (series). As per the cross examination of the learned counsel for the complainant, the opposite party deposed that no signature of DW1 is affixed in Ext.R1. DW1 was not present at the time of preparing the Ext.R1. He never knew that who has prepared the Ext.R1, where it was prepared, and cannot identify the signature in Ext.R1. The handwriting also cannot identify by DW1. The information regarding Ext.R1 is only here say. The loan was given on 1^st of May, 2006, but DW1 was not present at the time of giving the loan. He also not aware with the documents given by the complainant at the time of execution. In his information and knowledge, the complainant has signed in Exts.R1 and R2 only. Ext.R2 was signed at the office in consultation with the manager. DW1 is not aware of that. But he visited the residence of the complainant several times. It is written in Ext.R2 that it was created at Arikkuzha. The date of the execution is not written in that Ext.R2. Ext.P9 (series) are receipts, 10 numbers, were given by the opposite party before creating Ext.R1 agreement. A written request was given by the complainant for rescheduling the loan. But the copy of the same is not produced.

As per the complaint, the complainant availed the loan of Rs.2,75,000/- from the opposite party on 1.5.2006 with a hypothecation agreement. As per the agreement, the complainant has to pay Rs.3,76,063/- in 36 monthly instalments each comes around Rs.10,450/- and the last instalment is Rs.10,313/-. Ext.P1 shows the same. The complainant paid 9 instalments as per Ext.P1 and Ext.P9 (series) receipts produced for the same. The opposite party never supplied the R.C. Book for paying the road tax of the vehicle. So the vehicle was kept in the shed of the complainant for a long period because of the non-payment of the tax. The complainant caused a loss of Rs.2,62,500/- because the complainant was not able to ply the vehicle through the road and due to loss of daily income. There was an income of Rs.750/- per day for the vehicle. The R.C. Owner of the vehicle was the complainant, her husband was the conductor and brother of the husband was the driver. The vehicle was kept in custody of the complainant from 1.1.2008 to 14.12.2008. Ext.P8 (series) statement shows the income of the vehicle. After that an agreement was created by the opposite party which is Ext.R2 and the R.C. Book was handed over to the complainant. Ext.R1 was fabricated by the opposite party, no such agreement was signed by the complainant or her husband. At the time of availing the loan, on 1.5.2006, the opposite party got signed in several papers including hypothecation agreement without fully filling the same and also got signed in blank papers. So the opposite party created a false document with the signature of the complainant and her husband which were signed at the time of availing the loan and it is produced as Ext.R1. No rescheduling of the loan was done by the opposite party or no such request was made by the complainant for the same. The loss of the complainant is caused only because of the non-availability of the R.C. Book.

As per the opposite party, they have admitted that the loan was given on 1.5.2006 for Rs.3,76,063/- and Ext.P1 repayment schedule also admitted. But the complainant failed to repay the loan and so as per the request of the complainant the loan was rescheduled on 3.9.2007, so Ext.R1 agreement was signed on that day. As per Ext.R1 agreement, the loan amount is Rs.2,69,700/- after adjusting the payment that was received from the complainant. The repayment was in 42 monthly instalments each comes Rs.9,725/- upto 41^st and the last one is Rs.9,707/-. The complainant paid only one instalment of Rs.9,725/- in that loan account as per Ext.P9 (series).

It is admitted by the opposite party that the complainant paid some amount to the opposite party. As per the Ext.P9 receipts given by the opposite party, the complainant paid Rs.10,500/- on 6.5.2006, Rs.10,708/- on 26.6.2006, Rs.10,450/- on 8.9.2006, Rs.240/- on 18.10.2006, Rs.10,500/- on 18.10.2006, Rs.10,500/- on 7.12.2006, Rs.10,450/- on 29.1.2007, Rs.11,379/- on 28.2.2007, Rs.12,160/- on 10.4.2007 and Rs.9,725/- on 13.11.2007. As per the opposite party, the complainant made dues in payment of loan availed on 1.5.2006 and so it was rescheduled on 10.9.2008, as per the request of the complainant. After rescheduling, the complainant paid only Rs.9,725/- that is on 13.11.2007. On perusing Ext.P9 (series), the regular instalment is Rs.10,450/- on 26.6.2006 and interest is Rs.258/-. In Ext.P9 (6), dated 18.10.2006, the regular instalment is Rs.10,262/- and old interest is charged as Rs.238/-. In Ext.P9 (5), regular instalment is Rs.10,094/- and old interest is Rs.406/-. In Ext.P9 (4) dated 29.1.2007, the regular instalment is Rs.9,291/- and old interest is charged as Rs.1,159/-. In Ext.P9 (2) dated 10.4.2007, regular instalment is Rs.10,403/- and old interest is Rs.1,757/-, in Ext.P9 (1), regular instalment is Rs.10,500/- and old interest is Rs.879/-. So regular instalment written in the bill issued by the opposite party are different from each one. So we cannot think that the EMI for the loan dated 1.5.2006 is 10,450/-. As per the opposite party, the complainant paid only Rs.9,725/- on 13.11.2007 as the EMI for the rescheduled loan. But we cannot account this as an EMI for rescheduled loan because each instalments are written as different amount. As per the complainant, when the opposite party denied to give R.C. Book for paying the road tax, they filed a complaint before RTO office on 22.2.2008 as per Ext.P6 (b). Because of the non payment of the tax, Revenue Recovery proceedings were also initiated against the complainant for an amount Rs.20,475/- as per Ext.P5. Another complaint was given by the All Kerala Consumers Helpline General Secretary for getting the R.C. Book of the complainant on 21.2.2008 as per Ext.P6 (a). So the complainant made default in instalment of loan because she was not able to ply the vehicle through the road and income was lost, due to the non-availability of the R.C. Book.

PW1 and PW4 deposed that the opposite party got signed in several papers at the time of availing the loan and by using that papers, the opposite party created Ext.R1 agreement but no such re-scheduling was done by them. The opposite party also admitted about the first agreement created by the complainant on 1.5.2006. But agreement was not produced by the opposite party before the Forum. Nothing is written in the Ext.R1 and Ext.R2 about the reschedule of the loan. Ext.R1 is prepared like a fresh loan agreement and DW1 also deposed that Ext.R1 is created as a fresh loan agreement even though it is a rescheduled one. A petition was filed by the complainant before the Forum for producing the documents signed by the complainant and issued to the opposite party at the time of availing the loan. As per I.A. No. 47/2009 that petition was allowed and the opposite party was directed to produce all the documents signed by the complainant at the time of availing the loan. But the complainant produced only 2 documents and never produced any other documents or hypothecation agreement dated 1.5.2006. The opposite party never produced a document showing agreement created between the complainant and the opposite party on 1.5.2006. And in the documents produced by the opposite party as Exts.R1 and R2, it is not mentioned the rescheduling of the loan. So it means us to think that the deposition of the complainant is more believable and the opposite party created Ext.R1 document by the signed papers given by the complainant and her sureties, at the time of availing the loan. What prevented the opposite party to produce the first agreement, if the complainant signed in two hypothecation agreements. So there is no evidence produced by the opposite party to show that the loan has re-scheduled as per the request of the complainant. The complainant argued that they have signed only in 1^st hypothecation agreement which is Ext.R1, but it was signed on 1.5.2006 for availing the loan of Rs.3,76,063/-.

As per the opposite party, they have to get an amount of Rs.5,99,498/- as per the new agreement. The complainant made dues in the instalments because of the non-availability of the R.C. Book and the vehicle was kept without use, so the income was lost for that long period. The complainant has caused a loss of Rs.2,62,500/- because the vehicle was not able to ply through the road, due to non-payment of road tax. So we think that both the parties caused the loss, as per the complainant, it is due to the non-availability of the R.C. Book and it is also clear from Exts.P6 and P7. So both parties should suffer the same, but the complainant is ready to settle the loan account, in the loan of Rs.3,76,063/- availed on 1.5.2006 and she has paid some amount to the opposite party. So we think that it is proper to order to settle the account as per Ext.P1 repayment schedule.

Hence the petition allowed. The opposite parties are directed to settle the loan account of the complainant availed from the opposite party as per Ext.P1 repayment schedule for an amount Rs.3,76,063/- after deducting the amount paid by the complainant as per Ext.P9 (series). The complainant is directed to pay the balance amount to the opposite party within one month of the receipt of a copy of this order. The opposite party shall not charge further interest from the complainant if the complainant pays within one month. The opposite party is directed to return all the documents including cheque leaves given to the opposite party as security for the loan by the complainant and her husband at the time of availing the loan, when the complainant pays the balance amount to the opposite party.

Pronounced in the Open Forum on this the 29^th day of June, 2010.

Sd/-

SRI. LAIJU RAMAKRISHANAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Asha Shijo.

PW2 - T.J. Surendran.

PW3 - Radhakrishnan. M.

PW4 - Shijo Francis.

On the side of the Opposite parties :

DW1 - Syam Kumar. S.

Exhibits :

On the side of the Complainant :

Ext.P1 - Repayment schedule issued by the opposite party to the complainant, dated 2.5.2006.

Ext.P2 - Copy of the letter dated 18.11.2009, from the complainant to the Public Information Officer, Joint R.T.O. Office, Thodupuzha.

Ext.P3 - Letter from the opposite party to the complainant dated 20.4.2009.

Ext.P4 - Telegraphic message dated 4.5.2009 from the opposite party to the complainant.

Ext.P5 - Copy of the letter from Deputy Collector (RR), to the Tahsildar (RR),

Taluk Office, Thodupuzha, for Revenue Recovery proceedings against the complainant.

Ext.P6(a) - Letter from the General Secretary, All Kerala Consumers' Help Line, Thodupuzha, dated 21.2.2008 to the Joint Regional Transport Officer, Thodupuzha.

Ext.P6(b) - Copy of the letter from the complainant to the Joint Regional Transport Officer, Thodupuzha, dated 22.2.2008.

Ext.P7(a) - Copy of the letter No.C4/847/2008/ID dated 9.4.2010, from the Regional Transport Officer, Idukki to the complainant.

Ext.P7(b) - Copy of the acknowledgement card, addressed to the complainant.

Ext.P8(series) - Daily statements showing the details of the collection and expenses of the Bus No.KL6B 7749 (30 numbers)

Ext.P9(series) - Receipts issued by the opposite party to the complainant for the payment of loan instalments.

On the side of the Opposite parties :

Ext.R1 - Loan cum Hypothecation agreement, dated 3.9.2007.

Ext.R2 - Undertaking signed by the complainant in stamp paper worth Rs.50/-, dated 10.9.2008 given to the opposite party.

Ext.R3(series) - Statements of account of the loan of the complainant issued by the opposite party with a letter dated 105.2010.