Date of filing : 29-03-2010
Date of order : 28-06-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 77/2010
Dated this, the 28th day of June 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
N.Khader, } Complainant
S/o. Sulaiman,
Kalluvala Veedu, Thekkil Ferry.Po,
Bevinja, Kasaragod Taluk & District.
(Adv. Benny Jose, Kasaragod)
1. Nishad, Sales Representative } Opposite parties
Zain Motors, Near Chandragiri Bridge,
Kasaragod
(Exparte)
2. Basheer, Proprietor, Zain Motors,
Near Chandragiri Bridge, Kasaragod.
(Adv. Babu Chandran.K, Kasaragod)
3. Manappuram General Finance & Leasing
Company Ltd. Rep. By Chairman & Managing
Director)
4. Manikandan, Sales Representative Manappuram
General Finance & Leasing Company Ltd,
Kanhangad Branch.
5. Subash, Sales Representative, Manappuram
General Finance & Leasing Ltd, Kanhangad
Branch.
(OPs 3 to 5 Adv. P.V.Jayarajan, Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Complainant purchased an Autorikshaw from 2nd opposite party who is a dealer of vehicles with the financial aid of 3rd opposite party who is a financier. He paid `30,000/- to 2nd opposite party in cash and `90,000/- is availed as loan from 3rd opposite party. After the registration of the vehicle with the help of 1st opposite party, who is a sales representative of 2nd opposite party he asked the original RC of the vehicle. Opposite party No.2 then told that it will be given only after the remittance of first monthly instalment of the loan. After remittance of the 1st instalment again he demanded the RC then 1st opposite party told that it is with the financier. Then he approached opposite parties 4 & 5. But they did not return the RC stating lame excuses. Even after remittance of instalments for a year RC did not return to him. But on 03-05-2008 the transport authorities seized the vehicle for non-payment of tax in time and entrusted with traffic police. Though he approached the RT Office several times to pay tax they refused to accept the tax for want of original RC and similarly the authorities refused to release the vehicle without paying the tax. Therefore complainant again approached opposite parties 1 &2 and requested them to arrange the original RC. But they told that they could not do anything to give him the RC. Fed up with their inaction complainant lodged a complaint before the Police and when the police interfered in the matter Opposite party No.2 produced a document showing that the RC is taken by opposite party No.3. But opposite parties 3 to 5 did not give him RC. Then he dropped the chase for original RC and vehicle became ruined from the premises of Kasaragod Town Police Station. The complainant did not pay the balance instalments after seizure. Now opposite parties 4 & 5 harassing him by compelling him to pay the balance monthly instalments. Now the complainant lost his vehicle as well as the payment he made to opposite parties. That apart opposite parties 4& 5 are threatening him to pay `1,50,000/-. Therefore the complaint.
2. Notice to all opposite parties issued by registered post. But Ist opposite party remained absent inspite of receipt of notice. Hence opposite party No.1 had to be set exparte. Opposite parties 2 to 5 are appeared and filed version.
3. Version of Opposite party No.2.
According to opposite party No.2 complainant has purchased an Autorickshaw from his firm. But 2nd opposite party neither asked the complainant to pay `30,000/- nor the complainant paid the amount. The 3rd opposite party paid the price of the Autorickshaw which is delivered to the complainant. Complainant has remitted `16,180/- as down payment and only the balance is paid by opposite party No.3. The complainant voluntarily approached 3rd opposite party and arranged the loan. The vehicle is delivered to the complainant on the date fixed for the delivery itself. The complainant was never told that the original RC will be given only on payment of 1st loan instalment. After completing the vehicle registration procedures opposite party No.2 has handed over the RC to 3rd opposite party. The second opposite party never agreed to pay the insurance premium freely for 3 years. The complainant has neither paid `30,000/- nor sustained such a loss. The reason for the non return of RC is not due to any fault on the part of opposite party No.2 and there is no deficiency in service on their part. Hence opposite party No.2 has to be exonerated from the liabilities.
4. Version of 3rd opposite party.
According to 3rd opposite party the complainant is not a consumer since the relationship is that of borrower or a debtor with financial corporation. Hence the Forum lacks jurisdiction to try the matter. The complainant has entered into a hypothecation agreement and availed a loan of `90,000/-. As per the terms of agreement the complainant ought to have remitted `3,450/- per month towards EMI commencing from 04-01-2007 onwards. The complainant was very irregular in payment. In the year 2007 the total amount to be paid towards EMI was `41,700/-. But the complainant remitted only `29,950/-. In the year 2008 complainant has paid only `5,000/-on 10-04-2008. The RC obtained from the dealer of the vehicle was handed over to the complainant and the complainant is creating false story to evade the payment. Though the vehicle is said to be seized on 3-5-2008 and the RTO has issued stop memo on 4-6-2008 itself the complainant demanded RC from the 3rd opposite party only on 19-06-2009. All the acts pursuant to the seizure was done only after June 2009. The inaction on the part of complainant to take back the vehicle after seizure itself shows that the complainant was not interested in taking back the vehicle from police custody. The complaint is filed as an after thought only to evade the liability of repaying the loan dues. The complaint being a party to the hypothecation agreement is bound to comply all the terms and conditions of the agreement and a request from 3rd opposite party to “COMPLY” the provisions as the hypothecation agreement cannot be termed as deficiency in service.
5. Complainant filed proof affidavit in lieu of examination-in-chief as PW1 and Exts A1 to A12 marked through him. On behalf of opposite parties, Opposite party No.5 examined as DW1. Exts B1 & B2 marked.
6. Now the points arises for consideration are:
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of opposite parties?
3. What order as to relief & costs.
7. Issue No.1: The opposite party No.3 in their version has taken a contention that the complainant is not a consumer and the relationship between the complainant and opposite party No.3 is that of a borrower and debtor with the Financial Corporation and there is no consumer relationship. This contention is does not carry any weightage since our Hon’ble National Consumer Disputes Redressal Commission and State Consumer Disputes Redressal Commission has time and again held that the loanee or borrower or debtor from a financial institution is a Consumer and the dispute between the financier and borrower will squarely fall within the purview of Consumer Protection Act. Hence this issue is answered against the contention of opposite parties that the complainant is not a consumer and the dispute is not maintainable.
8. Issue No.2: The grievance of the complainant is that due to the lack of original Registration Certificate of his vehicle he could not pay the road tax and due to non-payment of road tax he could not release the vehicle from the custody of the police with whom the vehicle is entrusted by Transport Authority. It is his case that he approached opposite parties 1 & 2 for getting the Original RC of the vehicle and he even filed a complaint before the police against opposite parties and due to the intervention of Police opposite party No.2 issued him a copy of a register showing that the original RC is being taken away by opposite party No.3. The copy of the said register is produced by opposite party No.2 which is marked as Ext.B1. Ext.B1 shows that the opposite party No.3 has received the Original RC of the vehicle bearing Reg.No.KL-14 G 1055 belongs to the complainant from opposite party No.2. As against this evidence DW1 during cross-examination has deposed that opposite party No.3 have no practice of retaining the original RC of the vehicles with them and it will be return after getting a photostat copy of the same indication that HP endorsement is made in the RC.
9. But it is pertinent to note that no document is produced by opposite party No.3 to show that after getting RC from opposite party No.2 as evidenced by Ext.B1, they returned it to the complainant. This would itself makes it clear that opposite party No.3 is keeping original RC of the vehicle as security in contravention of what is deposed by DW1.
10. It is true that the complainant was irregular in paying the monthly instalments due to opposite party No.3. But it is pertinent to mention that the entire episode of misery of the complaint is started when the vehicle is seized by the RTO for non-payment of road tax. The complainant became helpless to pay the road tax without the original RC Book. Opposite party No.3 has not denied the case of the complainant that road tax will not be accepted by RTO without the production of original RC. Hence the non production of original RC before the RTO became fatal in the case of complainant.
11. From the evidence rendered by the parties it is clear that the illegal retention of opposite party No.3 caused miseries to the complainant. He not only lost the amount paid in advance but lost the vehicle as well as the monthly instalments remitted.
12. The illegal retention of original RC of the vehicle by a financier itself constitutes deficiency in service. As per Sec.51 of the Motor Vehicles Act the lien or hire purchase of the financier will be endorsed on the Registration Certificate of the vehicle and it can be cancelled only on production of the NOC issued by the financier. On endorsement of HP on the Registration Certificate of the vehicle the interest of the financier is well protected and hence it is absolutely unnecessary to retain the Original RC of the vehicle. Taking a vehicle to public road without original RC constitutes an offence. Therefore the retention of original RC is illegal and it violates all cannons of trade practice. For want of original RC, the complainant could not pay the road tax and get it released from the custody of Police which ultimately ruined his vehicle. The opposite party No.3 is therefore not entitled to get any further amount from the complainant instead of that they are liable to pay compensation to the complainant.
The complaint is therefore allowed and opposite party No.3 is directed to pay a sum of `25,000/-as compensation to the complainant with a cost of `3,000/-. Complainant is not liable to pay any amount to the opposite party. Time for compliance 30 days from the date of receipt of copy of order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1. to A1(j) series receipts issued by Manappuram General Finance and Leasing Ltd.
A2.19-06-2009 letter sent by complainant to OP.
A3.06-07-2009 letter sent by complainant to RTO, Kasaragod.
A4. Photocopy of RC
A5. Certificate Cum Policy Schedule. Bajaj Allianz General Insurance Company Ltd.
A6.14-7-2009 letter sent by Manappuram General Finance and Leasing Ltd to
Complainant.
A7.HP/ Lease instalment Payment book of the complainant.
A8.8-8-2009 complaint sent by complainant to Police Station Kasaragod.
A9. 3-5-05 Check Report.
A10. Repayment plan Manappuram General Finance and Leasing Ltd.
A11(a) to A11(c) Memos
A12.06-07-2009 letter sent by complainant to RTO, Kasaragod
B1.Photocopy of P.D.I. Card. Zain Motors, Kasaragod.
B2. Copy of the document issued by OP NO.2 showing that RC is being handed over to 3rd
OP.
PW1. N.Khader
DW1. Subhash.P.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/
Forwarded by Order
SENIOR SUPERINTENDENT
