BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 321/2005 Filed on 19/09/2005

Dated: 30..08..2010

Complainant:

G. Bhuvanendran, Mukkampalavila Veedu, Kozhivilakavu, Parassala – P.O., Thiruvananthapuram.

(By Adv. C.P. Bhadra Kumar)

Opposite parties:

1. Premchand Betala, 4, Trivelian Basin Street, 1^st Floor, Soukarpet, Chennai – 600 079. C/o Sultan Pillai, 'Altaf', Kozhivilai Road, Parassala – P.O., Thiruvananthapuram.

    

   (By Adv. Rajeev. S.S)

    

2. Mytheenkhan, C/o. Sultan Pillai, 'Altaf', Kozhivilai Road, Parassala – P.O., Thiruvananthapuram.

3. State Transport Authority, Transport Bavan, Thiruvananthapuram.

4. Joint Regional Transport Officer, Parassala – P.O., Thiruvananthapuram.

(Opp. parties 3 & 4 by Adv. Paraniyam Devakumar)

This O.P having been heard on 13..04..2010, the Forum on 30..08..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant had availed a vehicle loan of Rs. 3 lakhs on 27/10/2001 from the 1^st opposite party for clearing the due of his lorry bearing Reg. No.KL-01-P-9569 with M/s. Ashok Leyland Finance, that out of the said loan a sum of Rs.2,70,000/- was paid to the financier by the 1^st opposite party by way of DD and the balance of Rs.30,000/- was paid to complainant by 1^st opposite party by way of cash in the presence of the 2^nd opposite party, the agent of the 1^st opposite party, at 2^nd opposite party's residence at Parassala, that the said loan amount with interest had to be paid by the complainant in 36 monthly installments at Rs.12,500/- totalling to Rs. 4,45,800/-, that towards security for the said loan amount, 1^st oppostie party had procured a blank vehicle agreement signed by the complainant along with 6 signed blank cheques of State Bank of Travancore and blank signed stamp paper worth Rs. 50/- and 10 numbers of blank white paper signed by the complainant on the same day. It is further submitted by the complainant that at the time of issuance of the said loan the 1^st opposite party had received the R.C book of the vehicle and a sum of Rs.8,000/- from the complainant for effecting necessary changes in the R.C book and opposite party promised that the same will be returned to the complainant after effected the changes. Thereafter, 1^st opposite party backed out from the said promise and indulged in illegally keeping the R.C book with them thereby putting the complainant in utter mental agony and financial loss, that since the R.C book was with the 1^st opposite party, the complainant had to sideline the vehicle for want of proper payment of road taxes and composite taxes which had also adversely affected the business of the complainant incurring him heavy monetary loss, that complainant approached opposite parties on several occasions, but opposite parties did not pay any heed to the request of the complainant. It is further submitted that complainant had already paid a substantial sum towards the loan and opposite parties 1 & 2 not informed him about whether there is any amount due to them relating to the loan transaction nor gave any statement of accounts nor issued any notice whatsoever to the complainant in that direction. Because of the action of the 1^st opposite party, complainant is put to great stress and strain for which complainant is to be adequately compensated. Hence this complaint to direct opposite parties 1 & 2 to release the R.C book to the complainant, to direct opposite parties 3 & 4 to permit the complainant to remit the composite tax and road tax to his vehicle without production of the R.C book and to pay compensation of Rs. 3,00,000/- along with cost.

2. 1^st opposite party filed version contending inter alia that 1^st opposite paty is an unnecessary party to this complaint, as the complainant does not have any relationship with 1^st opposite party, that the disbursal of Rs.2,70,000/- of loan amount to the financier and Rs. 30,000/- in cash to the complainant is true, that 2^nd opposite party is only a facilitator of the transaction that took place between the 1^st opposite party and the complainant, that the averment in the complaint that 1^st opposite party had procured a blank vehicle agreement signed by the complainant along with 6 signed cheques and a blank signed stamp paper and 10 numbers of blank white papers signed by the complainant is not true and hence denied, that the complainant had never bothered to pay up the installment as per the B schedule of the said agreement and has been a regular defaulter, that 1^st opposite party has received the R.C book of the vehicle on the promise to return the same after effecting the necessary changes in the same is true and correct. Complainant has pledged the R.C book of the vehicle as part of some financial transaction, that complainant has suppressed the fact that 1^st opposite party had promptly replied vide reply dated 3/9/2005, intimating him about the exact amount due from him and demanding him to pay Rs. 1,93,300/-, that complainant is not entitled to any of the reliefs as prayed for in the complaint, that complaint is a frivolous and vexatious one. Hence 1^st opposite party prayed for dismissal of the complaint.

3. 2^nd opposite party did not file version, while opposite parties 3 & 4 filed version contending inter alia that the said lorry is registered in the Office of the 4^th opposite party in the name of Shri. G. Bhuvanendran, that it is true that the vehicle is held under a Hire Purchase Agreement with 1^st opposite party, that opposite parties 3 & 4 are neither aware nor responsible for the dispute between the owner of the vehicle and the Hire Purchase Company, that in terms of Sections 3 & 4 of Motor Vehicles Taxation Rules, while paying the tax in respect of every transport vehicle, the Certificate of Registration along with the Certificate of Insurance shall be produced before the Taxation Officer for the issue of tax licence and the necessary endorsement regarding the details of tax paid and the licence issued. Opposite parties 3 & 4 are, therefore, unable to accept the tax without the Certificate of Registration and the Certificate of Insurance. Hence opposite parties 3 & 4 prayed for dismissal of the complaint.

3. The points that arise for consideration are:

    

1. Whether the complainant is entitled to get back the RC Book from the opposite parties 1 & 2 ?

    

2. Whether the opposite parties 3 & 4 are bound to permit the complainant to remit composite tax and road tax till the RC Book is released from opposite parties 1 & 2 ?

    

3. Whether there is deficiency in service on the part of opposite parties?

    

4. Whether the complainant is entitled to compensation and cost?

In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and has marked Exts. P1 to P9. In rebuttal, 4^th opposite party has filed affidavit, no documents marked on the part of opposite parties.

4. Points (i) to (iv): It has been the case of the complainant that he had availed a vehicle loan of Rs. 3 lakhs on 27/10/2001 from the 1^st opposite party for clearing the due of his lorry bearing Reg. No.KL-01-P-9569 with M/s. Ashok Leyland Finance, that out of the said loan a sum of Rs.2,70,000/- was paid to the financier by the 1^st opposite party by way of DD and the balance of Rs.30,000/- was paid to complainant by 1^st opposite party by way of cash in the presence of the 2^nd opposite party, the agent of the 1^st opposite party at 2^nd opposite party's residence. It has also been the case of the complainant that towards security for the said loan, the 1^st opposite party had procured a blank vehicle agreement signed by the complainant along with 6 signed blank cheques of SBT, blank signed stamp paper, and blank signed white paper (10 Nos.), RC book of the vehicle and sum of Rs.8,000/- for effecting necessary changes in the RC book, that 1^st opposite party had promised him that the RC book will be returned immediately after effected the changes, that 1^st opposite party backed out from the said promise and did not return the RC book even after repeated requests, thereby the complainant has lost a fair amount of business of transporting goods of reputed companies by sidelining the vehicle for want of payment of road taxes, has incurred monetary loss and suffered much by way of detention of the vehicle by the Police and transport authorities. It has also been contended by the complainant that though he had already paid a substantial sum towards the loan and no information was received from opposite parties 1 & 2 about whether there is any amount due to them from him, opposite parties 1 & 2 made an illegal attempt to seize the vehicle from the complainant. In rebuttal, 1^st opposite party has contended that the transaction between him and the complainant had made on the basis of the Hire Purchase Agreement, executed on 27/09/2001, that the complainant has been a regular defaulter in payment of installments, that the last payment was made by him, on 5/8/2005 towards part payment of the 21^st installment which was due on 27/06/2003. It is admitted in the version by the 1^st opposite party that he had received the RC Book of the vehicle purchased on hire on the promise to return the same after effecting the necessary changes in it. It is said by the 1^st opposite party that he has right to repossess the vehicle at any point of time in the event of the complainant making default in the prompt repayment of the loan amount as per the provisions of the agreement. It has been contended by the 3^rd and 4^th opposite parties that while paying the tax in respect of every transport vehicle, the RC Book along with the certificate of Insurance shall be produced before the Taxation Officer for the issue of tax licence. Complainant has been cross examined by opposite parties 1,3 & 4. In his cross examination, complainant has denied the suggestion put by the 1^st opposite party that the documents were signed at Chennai. Further, complainant has deposed that the aforesaid loan was arranged by 1^st opposite party via the 2^nd opposite party, that PW1 is the RC owner and hypothecation has been lifted and shifted to the name of 1^st opposite party in the RC book, that the vehicle has insurance till 21/04/2009 and insurance has been received by himself for which RC book was not necessary. Further, PW1 has deposed that he could not run the vehicle from the date of expiry of the tax, when asked whether the vehicle had been run without RC Book from the date of loan, PW1 said 'Yes'. PW1 denied the suggestion put by 1^st opposite party that the commercial vehicle could not run without RC book and said even if Police caught the vehicle, he could run it subject to fine. PW1 further deposed that for obtaining fitness certificate yearly, the vehicle has to be produced before the RTO., along with RC Book, wherein fitness will be endorsed. On being asked whether installments towards loan account had been remitted without default PW1 said 'No' and added that 1^st opposite party has not issued any notice demanding dues from him. Complainant has admitted the suggestion put by 1^st opposite party that as per records furnished by him the last payment was made on 5/8/2005. Ext. P1 is the copy of the receipt dated 2/7/2004 for Rs. 12,500/- issued by the 1^st opposite party. Ext. P2 is the copy of the receipt dated 2/2/2005 for Rs.15,000/- issued by the 1^st opposite party. Ext. P3 is the copy of the DD for Rs.20,000/- dated 3/8/2005 taken by the complainant in the name of 1^st opposite party. Ext. P4 is the copy of the advocate notice dated 4/8/2005 addressed to opposite parties. Ext. P5 is the postal receipts. Ext. P6 is the acknowledgment cards. Ext. P7 is the copy of the reply to Ext. P4 advocate notice. The stance of opposite parties 3 & 4, the State Transport Authority and Joint Regional Transport Officer, is that complainant has defaulted the remittance of tax payable, that for the issue of tax licence and for necessary endorsement regarding the details of tax paid and licence issued it is mandatory that while paying the tax in respect of every transport vehicle, the tax payer should furnish the certificate of Registration along with the certificate of Insurance before Taxation Officer, that under no circumstances the 3^rd and 4^th opposite parties would waive the legal requirements of the documents. 4^th opposite party has been cross examined at length by the complainant. In view of the stance of opposite parties 3 & 4 supported by Sections (3) & (4) of the Motor Vehicles Taxation Rules, we find no reason to attribute any deficiency on the part of opposite parties 3 & 4. Further it is deemed to be the dispute between the complainant and opposite parties 1 & 2 with respect to a loan transaction wherein opposite parties 3 & 4 are not parties. In view of the above, and of law laid down in the Motor Vehicles Taxation Rules, we find complainant as a consumer has never availed any service from opposite parties 3 & 4 and complaint is bad for misjoinder of unnecessary parties. As regards, the complaint between the complainant and opposite parties 1 & 2, there is no dispute on the point that complainant had availed a loan of Rs. 3 lakhs from the 1^st opposite party via 2^nd opposite party. There is no point in dispute that the said loan amount with interest has to be paid by the complainant in 36 monthly installments at Rs.12,500/- per month. There is no point in dispute that the 1^st opposite party has received the RC Book of the vehicle in dispute on the promise to return the same after effecting the necessary changes in it. There is dispute on the point that complainant had paid a substantial sum towards the loan. According to 1^st opposite party, complainant has suppressed the material facts of the case, that complainant had never bothered to pay up the installment as per the B Schedule of the said Agreement, that the last payment was made by him on 5/8/2005 towards part payment of the 21^st installment which was due on 27/6/2003. It is pertinent to point out that complainant has produced only three receipts dated 2/7/2004 for Rs.12,500/-, 02/02/2005 for Rs.15,000/- and 3/8/2005 for Rs. 20,000/- to show the payment. On perusal of Exts. P1 & P2 it is seen that complainant had remitted full 17^th & 18^th installments. As per Ext. P3 complainant had remitted Rs.20,000/- by way of DD. In his version, 1^st opposite party has admitted that the last payment was made by him on 5/8/2003 towards part payment of 21^st installment which was due as on 27/6/2003. No other documents evidencing the payment of installments furnished by the complainant. The onus is on the complainant to show that he had paid the installments as per agreement. The case of the complainant is that he had availed the aforesaid loan on 27/10/2001, whereas according to opposite party the loan agreement was executed by the complainant on 27/09/2001. If that be so, the complainant has to close the loan amount on or before 27/10/2004 or 27/09/2004. Neither the complainant nor the 1^st opposite party has furnished the loan agreement. Anyway the issue herein is not in respect of payment of installments but in respect of non return of the RC book by the 1^st opposite party after effecting necessary changes in it. Further the issue involved herein is the attempt made by the 1^st opposite party in seizing the complainant's vehicle by resorting to third degree methods. At this juncture, it should be stated that the case is such that at the time of issuance of the aforesaid loan, the 1^st opposite party received the RC Book of the vehicle for effecting necessary changes in it. Admittedly, it was in the year 2001. 1^st opposite party has no case that he had returned the RC book to complainant after effecting necessary changes. As such the onus is on the 1^st opposite party to prove that he had returned the RC Book to complainant. 1^st opposite party has never filed affidavit to substantiate his contention in the version, nor did he produce any documents, in support of his contention. It is pertinent to point out that till the expiry of the tenure of the loan period, complainant never exerted any urgency in getting back the RC Book from the 1^st opposite party. It seems to be quite strange, that complainant was so active in getting back the RC Book only after the expiry of the tenure of the loan period. Neither the complainant nor the 1^st opposite party has produced even the copy of the RC Book. In her cross examination by the complainant, 4^th opposite party has deposed that on examination of B Register it was found that hypothecation was noted therein in the name of the 1^st opposite party on 10/10/2001, that tax was remitted upto 30/6/2005, 4^th opposite party further deposed that for remittance of road tax remitter has to furnish DD, along with filled pay-in-slip, original RC Book and insurance, that only after amounting the tax and remitting the same the DD will be recorded in the register concerned in the Office. In her cross examination by the complainant, 4^th opposite party has deposed that, if a complaint is received alleging illegal possession of RC Book by another person, the application will be handed over to the Field Officer who can repossess the RC Book if finds while checking the vehicle. It is further deposed by the 4^th opposite party that in this case they never got any such complaint, except Advocate notice for which the matter was referred to Field Officer, who reported non-remittance of tax on being asked, the original RC Book if exists, whether the duplicate RC Book will be issued, 4^th opposite party said, duplicate will never be issued if the original RC Book is found existing. In her cross examination by 1^st opposite party, 4^th opposite party said in case of hire purchased vehicle, if applied for duplicate RC Book by the RC owner, the same will be issued on obtaining NOC from the hypothecator, that in this case, complainant had never applied for duplicate RC Book till date nor had 1^st opposite party sent any communication to 4^th opposite party informing them not to collect taxes from the complainant. In her re-examination by the complainant, 4^th opposite party said they are answerable to RC owner, if there are hypothecator and RC owner. In view of the foregoing discussion and evidence available on records, we are of the considered opinion that the original RC Book is still with the 1^st opposite party and 1^st opposite party has not returned the RC Book to complainant after obtained it for effecting necessary changes in it. Non-return of the RC Book to complainant after a lapse of 9 years will definitely amount to deficiency in service on the part of 1^st opposite party. It is further to be stated that without RC Book a commercial vehicle like the vehicle in dispute could not run on the road, and non-plying of the said vehicle over a long period would cause business loss to the complainant. Further, the tenure of the loan period was 3 years from 9/2001 or 10/2001 which would expire on 9/2004 or 10/2004, while the vehicle in dispute was evidently seen plied upto 2005; before which complainant ought to have closed the loan account with 1^st opposite party. For default in loan amount, the financier has every right to realise the same as per terms of the agreement.

In the result, complaint is partly allowed. 1^st opposite party shall return the original RC Book of the vehicle bearing Reg.No. KL-01-P-9569 to complainant or shall take necessary steps to issue duplicate RC Book to complainant if the original RC Book found lost within two months from the date of receipt of this order. 1^st opposite party shall pay the complainant a sum of Rs.20,000/- towards compensation. 1^st opposite party shall not resort to third degree illegal method to repossess the aforesaid vehicle from the complainant. Parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of August, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A,

MEMBER.

S.K. SREELA,

MEMBER.

Ad

C.C.No. 321/2005

APPENDIX

I. Complainant's witness:

PW1 : Bhuvanendran. G

II. Complainant's documents:

P1 : Copy of the receipt dated 2/7/2004 for Rs. 12,500/- issued by the 1^st opposite party.

P2 : Copy of the receipt dated 2/2/05 for Rs. 15,000/- issued by the 1^st opp. Party.

P3 : " D.D for Rs. 20,000/- dated 3/8/05 taken by the complainant in the name of 1^st opp. Party.

P4 : " Advocate notice dated 4/8/2005 addressed to opposite parties.

P5 : Postal receipts

P6 : Acknowledgement cards

P7 : Copy of the reply to Ext. P4 Advocate notice

P8 : Copy of the Advocate notice dated 19/10/2005.

P9 : Copy of acknowledgement cards.

III. Opposite parties' witness:

DW1 : Rahila Beevi

IV. Opposite parties' documents: NIL

PRESIDENT