ORDER.

By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection act for an order directing the 1^st Opposite party not to seize the vehicle KL 12F 8291 Autorikshaw from the Complainant till the disposal of the case and to pay Rs.50,000/- as compensation to the Complainant and also for a direction to 1^st Opposite party to receive the balance loan instalments from the Complainant and issue clearance certificate. If 1^st Opposite party fails to do it, for an order to 2^nd Opposite Party to cancel the hire purchase endorsement from the RC book of the above vehicle. And also for a direction to 1^st Opposite party to give back Rs.22,500/- as loan payment and Rs.5,100/- as repayment received from the Complainant and cost of the proceedings.

2. Complaint in brief:- The Complainant is the RC owner of KL 12F 8291 Mahindra & Mahindra Alfa Autorikshaw and the Complainant availed Rs.1,55,000/- from the 1^st Opposite Party by pledging the vehicle. The monthly instalment amount was Rs.5,100/- in 47 equal instalments. The interest calculated is flat rate up 25.08.2015. The complainant paid Rs.5,100/- as advance instalment payment at the time of availing loan. But this advance amount is not accounted anywhere by the 1^st Opposite party. The Complainant paid Rs.62,800/- towards intalments. But the Opposite party not gave receipts for it. The Complainant paid Rs.22,500/- towards down payment which is also not accounted by the Opposite party and not receipt is issued. The Opposite Party promised to pay insurance premium but not paid. The Opposite Party also promised that no documentation charge and registration charge will be collected from the Complainant. But Opposite party collected Rs.7,000/- towards these heads from the Complainant. The Opposite Party levied more interest than that is promised. The Complainant paid 12 instalments and was ready to pay the balance instalments and approached the Opposite Party. But opposite party did not receive the amount and demanded to surrender the vehicle to Opposite party or to face seizure. The Complainant now not running the vehicle due to this fear. The Opposite party tried to seize the vehicle but failed. The act of 1^st Opposite Party is nothing but unfair trade practice and deficiency of service. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notice was issued to Opposite Parties and Opposite Parties appeared before the Forum and filed version. In the version of 1^st Opposite party, 1^st opposite party stated that the Forum have no jurisdiction to try the case since there is a clause in the loan agreement that if any dispute arisen, it will be discussed before arbitrator. The vehicle was purchased for commercial purpose and the complaint is not a consumer. The 1^st Opposite party admitted loan and repayment in 7 instalments of Rs.5,100/-. As per terms, the instalments are to be paid on 25^th day of every month and if not paid, it will attract additional charges. All other allegation are denied by 1^st Opposite party. The Complainant is very irregular in paying instalments from the very beginning itself and payment towards 1^st instalments was Rs.1,000/- only instead of 5,100/-. More over, 8 cheques issued by the Complainant were returned for which cheque return charges will attract. The Complainant is liable to pay Rs.1,78,100/- towards instalments due and Rs.17,925/- towards cheque return charges. There is no unfair trade practice or deficiency of service from the part of 1^st Opposite Party.

4. On perusal of complaint, version and documents, the Forum raised the Following points for consideration.

1. Whether there is deficiency of service or unfair trade practice from the part of

Opposite Parties?

2. Relief and costs.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A3. The 1^st Opposite party filed proof affidavit and 1^st Opposite party is examined as OPW1 and Exts.B1 and B2 are marked as documents from Opposite Party's side. Ext.B1 is the loan agreement and Ext.B2 is the statement of account with regard to the loan availed by the Complainant. As per Ext.A2 document, the Complainant have to remit 47 instalments to complete the loan repayment. The case of Complainant is that the Complainant remitted 12 instalments and was ready to remit balance instalments. But the 1^st Opposite party was not ready to accept the balance instalments from the Complainant. According to 1^st Opposite Party, the Complainant was irregular in repayment and 8 cheques issued by the Complainant were dishonored. The 1^st instalment was Rs.1,000/- instead of Rs.5,100/-. The Complainant's case is that the Complainant remitted 12 instalments of Rs.5,100/- totally. The balance instalments are 35 instalments of Rs.5,100/-. The Complainant have to remit 35 instalments to the Opposite Party ie Rs.5100 x 35 =1,78,100/-. The Opposite party also admits that the Complainant need to pay Rs.1,78,100/- as balance instalments. The Opposite party now demands the above amount plus cheque return charges and additional finance charges. The Complainant alleged that the Opposite party received Rs.22,500/- as loan payment and Rs.5,100/- towards instalments which were not recorded anywhere. The 1^st Opposite Party denied the allegation of the Complainant in this aspect. The prayer of the Complainant is for a direction to 1^st Opposite Party to receive the balance 35 instalments amount from Complainant and to issue clearance certificate for cancellation of hire purchase endorsement for Registration Certificate. The Complainant was ready to pay the instalments amount to the Opposite Party, but Opposite party was not ready to receive the instalment amount without additional charges and cheque return charges. Non receipt of instalment amount from the Complainant amounts to deficiency of service from the part of 1^st Opposite Party. Point No.1 is found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to receive Rs.1,78,100/- from the Complainant towards 35 instalment amount as loan repayment. The Complainant is directed to pay Rs.10,000/- (Rupees Ten thousand) only towards cheque return charges in addition to the above 35 instalments amounts of Rs.1,78,100/- (Rupees One Lakh Seventy Eight thousand and One hundred) only. The 1^st Opposite Party is directed not to collect any additional finance charges from the Complainant. The 1^st Opposite Party is also directed to issue clearance certificate to the Complainant. On receipt of the above amounts from the Complainant. The 1^st Opposite Party is directed to pay Rs.1,000/- (Rupees One thousand) only as compensation and Rs.1,000/- (Rupees One thousand) only as cost of the proceedings. On payment of the above amounts by the Complainant to 1^st Opposite Party and if 1^st Opposite party is not issuing clearance certificate to the Complainant, 2^nd Opposite party is directed to cancel the hire purchase endorsement in the RC of KL 12F 8291 on production of receipts of remittance of the above amounts. Both parties shall comply the order within 30 days from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 16^th day of September 2015.

Date of Filing:11.03.2013

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Biju. Complainant.

Witness for the Opposite Parties:

OPW1. Devanand. Branch Manager, Mahindra Finance, Sulthan Bathery.

Exhibits for the complainant:

A1. Copy of Certificate of Registration.

A2. Copy of Payment Chart.

A3 series Receipts.

Exhibits for the opposite Parties.

B1. Loan Agreement.

B2. Copy of Statement of Account. dt:20.02.2014.