By. Sri. K. Gheevarghese, President:

The complaint filed against the opposite parties under Section 12 of the Consumer Protection Act 1986.

2. The complaint in brief is as follows:- The complainant is the purchaser of a stage carriage No. KL 12 D 4140 as means of his livelihood. The vehicle was financed by 1^st opposite party and at the time of purchase the complainant had to give 30 blank and signed cheques and two stamp papers as a pre-condition for the vehicle finance. The terms of repayment was such that the complainant has to repay the loan amount of Rs.8,40,000/- in 45 monthly installments of Rs.25,950/- each and the first installment Rs.26,250/- was also given to the 1^st opposite party. In addition to that towards documentation charges Rs.4,000/- was also paid. The complainant was keeping on the punctuality in remittance of the EMI but the 1^st opposite party time and again sent notices to the complainant demanding excess amount as overdue interest and other charges. Even in the absence of any differed payments the 1^st opposite party claimed overdue charges. The 1^st opposite party was urged with illegal intention to draw exorbitant amount from the complainant. Even though the complainant had sufficient amount to honor the check presented by the 1^st opposite party towards the EMI the 1^st opposite party demanded overdue charges and other charges to extract money from the complainant. The complainant in total paid more than Rs.7,00,000/-. At the time of availing the loan the 1^st opposite party had already assured that the tabulation of 1^st installment of EMI stands after 64 days from the delivery of the vehicle and that would be free of interest. But these assurances was also not kept up by the 1^st opposite party. As per the chart the repayment starts only from 02.09.2008 that means 64 days from delivery of chassis. Whereas if the offer of 64 days free from interest for the first installment is considered the complainant had to remit the first installment only on 03.10.2008, complainant convinced 1^st opposite party that the retract from the offer from the 1^st opposite party from the 64 days free of interest the complainant was informed to remit Rs.10,000/- to give a new chart with different EMI rates. For that purpose also the complainant had to remit Rs.10,000/-. The 1^st opposite party was swinging from one reason to other to extract huge amount from the complainant. In short the purchase of a stage carriage turned to be a tormentation to the complainant. There may be an order directing the opposite party not to seize the vehicle till the disposal of complaint along with compensation of Rs.50,000/-. The 1^st opposite party also may be directed to give back the excess amount of Rs.50,000/- collected from complainant from different heads. In the absence of no objection certificate from 1^st opposite party the 2^nd opposite party may be directed to cancel the hypothecation endorsement in the Registration Certificate.

3. The opposite party filed version in short it is as follows:- The complaint filed does not come within the preview of the Consumer Protection Act. The complainant has suppressed the fact that he is a chronic defaulter in the repayment of the loan. Out of the total 46 EMI the majority of the repayment were not in time. The complainant remitted partly and in out of time at about 30 installments as per the chart. The total repayments made by the complainant in and out of time is Rs.7,02,748/- the balance amount payable by the complainant as on 03.03.2011 is Rs.1,02,002/- audit charges Rs.34,320/-. An agreement executed at the time hire purchasing of the vehicle agrees that the complainant is liable for delayed and defaulted payments. The cheque issued by the complainant towards repayment of the loan in almost dates became dishonored due to the insufficiency of funds. The table details the dishonor of 9 cheques given by the complainant due to the insufficiency of funds. The agreement executed empowered the opposite parties to charge Rs.400/-. For each dishonor of a cheque. The notices sent to the complainant also procure additional charges that can be retained by the opposite party. The loan availed by the complainant was fully agreeing with the charges and conditions and only after admitting the condition the transaction was affected. The subject in issue raised by the complainant is a matter of complex question which can be decided only by civil court. Thereby complainant itself is not maintainable.

4. The complainant availed loan of Rs.8,40,000/- consenting to the terms of repayment in monthly vise. The first installment to be Rs.26,250/- the remaining 44 installments to be in the range of Rs.25,950/- per month. Starting from 02.09.2008 to 02.06.2012. The complainant over all had to pay Rs.60,000/- towards the insurance and the financial charges Rs.2,94,000/- is also liable to be received by the opposite party. The overdue charges are also liable if the installments were not remitted in time. The question at the rate of interest after 2.5 years from the date of availing the loan does not have any authenticity. The complainant himself endorsed in the agreement executed for the hire purchase terms and conditions which elucidates the rate of interest as 8.75%. The purchase of the vehicle was absolutely for commercial purpose and this can be an another reason for dismissal of the complaint at the threshold itself. The overdue for the installments and the overdue charges in total is Rs.1,36,322/-. On dishonor of cheque presented the opposite party sent notices it also adds to the charges upon the complainant. This opposite party is

ready to close the loan liability provided the complainant clear the outstanding dues of Rs.1,36,322/- as on 03.03.2011. The complaint filed is with a motivation to conceal the liability of the complainant and with an intention to detract the attention.

5. The complainant enjoys the benefit out of plying the vehicle without rendering his part to clear the liability. The liability of the complainant if mounting up the opposite party would not have any other option except to act as per terms and conditions executed between the complainant and this opposite party. The complaint is to be dismissed with cost to this opposite party.

6. The sum up of the version filed by 2^nd opposite party is that no application is filed by the financier to cancel the Hypothecation endorsement.

7. The points that are to be decided:-

1. Is there any deficiency in service on part of the opposite party in the transaction related to the repayment of the vehicle loan?

2. Relief and Cost.

8. Points No.1 and 2:- The evidence in this case consist of the proof affidavit of the complainant and the opposite party, Ext.A1 to A5, Ext.B1 to B11 and oral testimony of the witnesses are also considered.

9. The dispute in issue is related to the vehicle loan and the repayment of the loan amount by the complainant. According to the complainant the loan amount of Rs.8,40.000/- financed by the 1^st opposite party for the purchase of the vehicle KL 12 D 4140 the stage carriage. The installments specified in the chart were remitted and the repayments were almost tallying with the terms of agreement and directions of the opposite party. The due date of the first installment was on 02.09.2008 and amount to be paid by the complainant was Rs.26,250/-. The monthly installments 46 in number and the due date of the different installments has to be on or before 2^nd of every month. Except the first monthly installment all other installments comprises Rs.25,950/-. The EMIs reach the target only on 02.06.2012. Ext.B5 is the loan cum hypothecation cum guarantee agreement. Ext.B4 elucidates the over due charges and other expenses liable to be remitted by the complainant which shows that in that head alone from 01.07.2008 to 11.11.2011 Rs.49,623/- is the liability of the complainant. The repayment already by the complainant towards loan amount from 02.09.2008 to 03.03.2011 is Rs.7,02,748/-. The over due charges as per Ext.B2 up to that period amount to Rs.34,320/-. According to the opposite party till 03.03.2011 Rs.1,02,002/- is the balance amount due from the complainant. On examination of the witness of the opposite party the EMI remitted after 03.03.2011 is not accounted in the documents filed.

10. The complainant produced some of the receipts received on payment of the amount in the office of the opposite party. That comes 35 in numbers, on verification of this receipts and account of statement produced by the opposite party, the opposite party charged in certain occasions unnecessarily bouncing charge of the cheques though the complainant remitted cash in time. The complainant has no case that he closed the liability on remitting entire loan amount in time. The opposite party charged till 02.11.2011 overdue charges of Rs.74,484/- and the balance amount payable by the complainant is Rs.2,57,616/-. The amount paid by the complainant also included the insurance amount liable to be paid. The complainant has no case that the loan liability with the opposite party is closed by him. The dispute mainly lays on the conversion of the remitted installments to overdue charges. The opposite party draw from the complainant exorbitant sum in different heads other than the EMI amount. The documents produced by the complainant do not explain itself how much of the remaining installments from the date of 03.11.2011 were remitted by the complainant. The overdue amount according to the opposite party as on 02.11.2011 is Rs.2,57,616/- and no evidence is brought out regarding the payment of other subsequent installments after 02.11.2011. As per proof affidavit of the opposite party outstanding due of Rs.1,36,322/- as on 03.03.2011 and the future installments for the closing of the liability. Out of the amount Rs.1,36,322/- Rs.36,322/- is delated considering it as excess amount collected by the opposite party in different heads. The opposite party is directed to calculate Rs.1,00,000/- as due amount on 03.03.2011 and the subsequent installments after that date is to be remitted by the complainant for the closing of the liability. Since the liability of the complainant still persist the 2^nd opposite party is absolved from the liability.

In the result the complaint is partly allowed. The opposite party is directed to consider Rs.1,00,000/- as due on 03.03.2011 and the future installments liable to be paid by the complainant is to be received by the opposite party on receivel of the future installments and the amount in due as on 03.03.2011 Rs.1,00,000/-. The opposite party is directed to give No Objection Certificate to the complainant on closing the liability. There is no order as to cost and compensation.

Pronounced in Open Forum on this the day of 30^th December 2011.

Date of Filing:12.01.2011.