IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 23rd day of July, 2010.

Present : Sri. Jacob Stephen (President).

Smt. C. Lathika Bhai (Member)

N. Premkumar (Member)

C.C.No.134/09 (Filed on 06.10.2009)

Between:

Anand. G. Nair,

Manivilas,

Ponkunnam – 686506.

(By Adv. Leena. K. Subhash)                                          …..    Complainant

And:

1.     Officer in Charge,

Bajaj Auto Finance,

Collectorate Road,

Pathanamthitta.

(By Adv. T.S. Rajan)

2.      Manager,

Geo Automobiles,

Pathanamthitta.

(By Adv. Jayan Mathew)                                                 …..    Opposite parties.

O R D E R

Sri. Jacob Stephen (President):

                   The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                     2. The complainant’s case is that he had purchased a Bajaj Motor Cycle from the 2^nd opposite party by availing finance from the 1^st opposite party after executing a hire purchase agreement with the 1^st opposite party.  As per the terms and conditions of the hire purchase agreement, the complainant had given 36 cheque leaves for Rs.1,466/- to the opposite parties.  Moreover he had given two more blank cheques for taking insurance premium.  All the above said EMI cheques were honoured also.  The 1^st opposite party informed the complainant that the cheque entrusted for taking insurance policy were lost and they have taken the policy by using thereon cash.  But the 1^st opposite party has not given the insurance policy certificate.  So the complainant was compelled to take the policy.  As per the terms and conditions of the hire purchase agreement, the 1^st opposite party had collected the entire loan amount from the complainant’s accounts by using the cheques entrusted by the complainant with the 1^st opposite party.  But even after the settlement of the liabilities, the 1^st opposite party has not delivered the duplicate key of the motor cycle and the non-liability certificate for endorsing the non-liability in the R.C. Book of the complainant’s motor cycle irrespective of complainant’s request in person and by registered notice dated 11.4.08. 

                      3. The above said act of the opposite party is a clear deficiency of service and unfair trade practice.  These caused financial loss and mental agony to the complainant and opposite parties are liable for the same.  In order to redress the grievances of the complainant, the complainant had filed a petition before the Kanjirappally Taluk Legal Services Authority and before the Hon’ble CDRF, Kottayam against the opposite parties.  Because of the non co-operation of the opposite party, the Legal Services Authority declined to settle the matter and the Hon’ble CDRF, Kottayam returned the complaint for filing before proper Forum for want of territorial jurisdiction. Hence this complaint for the realisation of Rs.28,500/- from the opposite parties as compensation and cost and for an order directing the 1^st opposite party for the delivery of the duplicate key and for directing them to get the hire purchase endorsement in the R.C. Book cancelled. 

                   4. The 1^st opposite party entered appearance and filed a version with the following main contentions:- According to the opposite parties, the complainant is a defaulter for two instalments as the two cheques, No.976291 and 976292 for an amount of Rs.2,932/- was dishonoured and the complainant has not returned Rs.1,401/- spent by the 1^st opposite party for taking the insurance policy and thereby the complainant had violated the terms and conditions of the hire purchase agreement and he become a defaulter.  Since he is a defaulter he is not entitled to get any of the reliefs as prayed for in the complaint.  The 1^st opposite party is not responsible for the loss incurred to the complainant due to his fault.  The 1^st opposite party has not committed any deficiency of service or unfair trade practice to the complainant.  With the above contentions, they prayed for the dismissal of the complaint with their cost.

                   5. The 2^nd opposite party has not appeared or filed version.  Hence the 2^nd opposite party was declared exparte.

                   6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                   7. The evidence of this complaint consists of the proof affidavit of the complainant who had been examined as PW1 and Exts.A1 to A10.  For the opposite parties, the counsel for the 1^st opposite party cross-examined PW1.  No other evidence was adduced from the side of the 1^st opposite party.  After closure of the evidence, both sides were heard.

                   8. Point:-  In order to prove the complainant’s case, the complainant had filed a proof affidavit narrating his case along with 10 documents.  On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 toA10.  Ext.A1 is the photocopy of the R.C particulars of the complainant’s motor cycle bearing Reg.No.KL 05-N/6347.  Ext.A2 is the photocopy of the tax token.  Ext.A3 is the photocopy of the insurance policy certificate issued by United India Insurance Company in the name

of the complainant. Ext.A4 is the photocopy of the complaint-dated 26.7.08 filed by the complainant before the Taluk Legal Service Authority, Kanjirappally.  Ext.A5 is the photocopy of the registered notice dated 11.04.08 sent to the 1^st opposite party by the complainant.  Ext.A6 is the photocopy of the complaint filed by the complainant before the Hon’ble CDRF, Kottayam.  Ext.A7 is the order of the Hon’ble CDRF, Kottayam in Ext.A6 complaint. Ext.A8 is the postal receipt of Ext.A5.  Ext.A9 is the legal notice dated 8.2.07 issued by the 1^st opposite party to the complainant.  Ext.A10 is the certificate-dated 12.8.08 issued by S.B.T., Ponkunnam Branch showing the details of the payments of three cheques.

                   9. The contentions of the opposite party is that the complainant is a defaulter.  Out of the 36 cheques given by the complainant at the time of execution of hire purchase agreement, two cheques therein No.976291 and 976292 for Rs. 2,932/- were dishonoured by the complainant’s bank at the time of its presentation. Moreover, an amount of Rs.1,401/- spent by the opposite party for taking insurance premium for the complainant’s vehicle was also not given by the complainant.  So the complainant had a total dues of (Rs.2,932/- + Rs.1,401/-) = Rs.4,333/- and its penal interest and other charges.  In the circumstances, they are not liable to the complainant and the complainant is not entitled to get any of the reliefs prayed for in the complaint.  In order to prove the contentions of the 1stopposite party, they have not adduced any oral or documentary evidence before this Forum other than the version and their cross-examination of PW1.

                   10. On the basis of the contentions of the parties, we have perused the materials on record and found that there is no dispute with regard to the transactions between the parties.  The only dispute is with regard to the outstanding dues of the complainant.  But on a perusal of Ext.A10 certificate dated 12.8.08 issued by S.B.T. Ponkunnam Branch shows that cheque No.976291 and 976292 for Rs.1,466/- each were honoured by the bank on 16.8.05 and 17.9.05 respectively in favour of the 1^st opposite party.  Ext.A10 certificate was also not opposed by the 1^st opposite party.  The alleged payment of Rs.1,401/- by the 1^st opposite party for taking policy is also not proved before this Forum.  Therefore, we find that the complainant is not a defaulter to the 1^st opposite party.  So the non-delivery of the duplicate key and non-liability certificate to the complainant is a clear deficiency in service and an unfair trade practice of the 1^st opposite party and the 1^st opposite party is liable for the same to the complainant.  However, the complainant has not adduced any cogent evidence to substantiate his claim for Rs.28,500/-.  Though the complainant had not adduced any evidence for proving his claim amount, he is entitled to get reasonable amount as compensation from the 1^st opposite party as the complainant had sustained mental agony and financial loss due to the deficiency in service committed by the 1^st opposite party. In our opinion, the complainant is entitled to get compensation of Rs.5,000/- and cost of Rs.1,000/-.  As there is no evidence and no relief is sought against the 2^nd opposite party, we find no deficiency against the 2^nd opposite party.

                   11. 16. In the result, this complaint is allowed, thereby the first opposite party is directed to pay Rs.5,000/- (Rupees Five thousand only)as compensation  and cost of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realise the aforesaid amounts with interest @ 10% per annum from today till the whole realisation. The 1^st opposite party is also directed to deliver the duplicate key of the complainant’s vehicle and the non-liability certificate to the complainant forthwith.

                           Pronounced in the Open Forum on this the 23rd day of July, 2010.                                                                                                    (Sd/-)    

                                                                                                 Jacob Stephen,

                                                                                                   (President)

Smt. C. Lathika Bhai (Member)           :         (Sd/-)

Sri. N. Premkumar (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :         Aravind. G. Nair.

Exhibits marked on the side of the complainant:

A1     :         Photocopy of the R.C particulars of the complainant’s motor cycle

                    bearing Reg.No.KL 05-N/6347

A2     :         Photocopy of the tax token.

A3     :         Photocopy of the insurance policy certificate issued by United India

                    Insurance Company in the name of the complainant.

A4     :         Photocopy of the complaint-dated 26.7.08 filed by the complainant

                    before the Taluk Legal Service Authority, Kanjirappally.

A5     :         Photocopy of the registered notice dated 11.04.08 sent to the 1^st

                    opposite party by the complainant.

A6     :         Photocopy of the complaint filed by the complainant before the

                     Hon’ble CDRF, Kottayam.

A7     :         Copy of Order in I.A.669/09 in C.C. No.110/09 on the file of the

                     CDRF, Kottayam.

A8     :         Postal receipt of Ext.A5.

A9     :         Legal notice dated 08.02.2007 issued by the 1^st opposite party to the

                     complainant.

A10   :         Certificate-dated 12.08.2008 issued by S.B.T., Ponkunnam Branch

                     showing the details of the payments of three cheques.

Witness examined on the side of the opposite parties : Nil.

Exhibits marked on the side of the opposite parties   :  Nil.

                                                                                                (By Order)

Senior Superintendent.

Copy to:  (1)  Anand. G. Nair, Manivilas, Ponkunnam – 686506.

(2)  The Officer in Charge,Bajaj Auto Finance, Collectorate Road,

           Pathanamthitta.

(3)  The Manager, Geo Automobiles, Pathanamthitta.

(4)  The stock file.