Kerala

Idukki

CC/136/2020

Shamsudeen - Complainant(s)

Versus

Shriram Transport Finance Com ltd - Opp.Party(s)

20 Oct 2022

ORDER

 

DATE OF FILING : 15/10/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 20^th day of October 2022

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.136/2020

Between

Complainant                            :   P.A.Shamsudeen, S/o Abdul Kareem,

                                                     Palayamparambil House,

                                                     Vellayamkudy P.O., Kattappana, Idukki

                                                     (By Adv.Joseph Pathalil)

                                                           And

Opposite Party :           :   1 .  M/s Shrim Transport Finance Company Ltd.,

                                               No.4 Annathurai Complex, Sathyam Departmental       

                                               Stores,  (Upstairs), Govt.Girls HSS (opp) Cumbum –

                                               625 516,  Uthamapalayam Talu, Theni District,

                                                Tamilnadu

                                         2  .  The RTO Idukki,

                                                Office of the Motor Vehicle Department,

                                                 Painavu P.O., Idukki District.

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant raised the following allegations against opposite parties and sought for the following reliefs:-

 

1 . Complainant  entered into an agreement No.TSLTN 40075990 dated 01/05/2007 with the first opposite party in respect of vehicle No.KL 06A9744 and obtained loan amount of Rs.2,50,000/-.  The complainant used to pay the instalments.  There was delay in payment.  Hence the complainant returned  the said vehicle to the first  opposite party when he found it difficult to pay back the entire loan dues.  Finally on 04/02/2014 complainant paid Rs.5000/-(Five thousand) towards full and final settlement of the agreement.

 

 

(Cont.....2)

 

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2 . The complainant had paid the entire tax of the vehicle till 31/12/2010.  The complainant obtained fitness certificate from the department up to March 2010 for the vehicle also.  The complainant entrusted the vehicle with the first opposite party in January 2011.  The complainant was under bonafide belief that the ownership of the vehicle was changed in the RTO office concerned by the first opposite party when the complainant entrusted the vehicle with the first opposite party.  All necessary papers were got signed by the first opposite party in this regard from the complainant.

 

3 . Now the Motor Vehicle Department Kerala (Idukki RTO) sent demand notice to the complainant to remit Rs.1,57,650/- towards arrears in tax in respect of vehicle No.KL06A9744, from 2010 to 2020 since the ownership of the vehicle is in complainant’s name in the Department records.  The complainant approached the Motor Vehicle Department of Kerala and explained the details of the vehicle.  Moreover the complainant approached office of the first opposite party and requested for the details of the vehicle.   Then the complainant was told that the vehicle was dismantled.

 

4 . In order to remove the ownership of the complainant from the record of the MVD Kerala, it is highly necessary to produce a no objection certificate in respect of vehicle No.KL06A9744, from the office of the first opposite party addressed to the MVD, Idukki, Kerala.  The complainant approached the first opposite party a number of times for the certificate.  But the first opposite party did not issue the same so far to the complainant.  If the certificate is not issued, the arrears of tax in respect of the vehicle will mount every year.

 

5 . Hence through the lawyers notice the complainant asked the first opposite party to issue a ’No Objection Certificate’ in respect of vehicle No.KL06A9744, to the effect that the first opposite party has no objection in changing the ownership of the said vehicle in the name of anybody so that the complainant can produce the same before the MVD Department Kerala to get his name changed in the Registration Certificate.  The first opposite party did not comply with demand nor replied to the notice.

 

6 . The first opposite party ought to have done necessary things to change the ownership of the vehicle before entrusting the vehicle with third party or dismantle it.  But after obtaining possession of the vehicle the first opposite party negligently transferred the vehicle to third party without change of ownership in the department records.  The transfer of possession of the vehicle to third party was  not informed to the complainant.  Finally the first opposite party received Rs.5000/- from the complainant in addition to the vehicle as full and final settlement of the loan agreement.

 

(Cont.....3)

 

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7 . The first opposite party caused damages to the complainant.  It is due to the defective service of the first opposite party the complainant sustained damages.  Still the complainant is under threat of future damages due to the continuing attitude of the first opposite party.

 

8 . The first opposite party is liable to compensate all the loss sustained by the complainant.  The second opposite party is  necessary in the case and hence it is included in the party array.

 

Hence he prayed for the following reliefs.

 

a . The first opposite party may be directed to issue a No Objection Certificate to change the name of ownership in respect of the vehicle No.KL 06 A9744, to the complainant and the first opposite party  may be directed to pay all the future dues in respect of the said vehicle in the Motor Vehicle Department till the issue of No Objection Certificate.

 

b . The first opposite party may be directed to pay Rs.1,57,000/- to the complainant as compensation for not changing the ownership of the vehicle since they obtained possession of the same from the complainant.

 

c . The second opposite party may be directed to change the ownership of the vehicle No.KL 06 A 9744 from complainant’s name as per the direction of this Forum even if the first opposite party failed to issue no objection certificate.

 

d.  The first opposite party may be directed to pay Rs.10,000/- as cost of the proceedings.

 

e.  Such other reliefs which this Forum may deem fit and proper in the interest of justice may also be allowed.

 

 

He produced copy of following documents along with the complaint.

 

1 . Letter dated 04/02/2014 addressed to P.A.Shamsudeen from Shriram.

2 . Registered Letter to P.A.Shamsudeen dated 04/02/2010 Shriram

3 . Letter from Motor Vehicle Department Idukki RTO dated 04/03/2020

4 . Lawyers notice dated 19/08/2020.

(Cont.....4)

 

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First Opposite party  has not filed any written version or vakalath.  But on certain occasions there was representation  from the side of first opposite party.  Second opposite party filed written version along with copy of Gazatte Notification of SRO No.252/2020 dated 23/03/2020.  Main contentions raised by second opposite party are as under.

 

As per records of second opposite party KL06A 9744 is 2000 Model TATA SE 1613 goods vehicle registered in the name of complainant with effect from 14/09/2007.  The vehicle is under hypothecation with first opposite party.  As per the record of the vehicle      (a) goods carrier permit of the vehicle is in the name of the complainant and valid up to 02/01/2011 (b)  Certificate of fitness was expired on 02/03/2010  (c)  Tax is in arrear with effect from 01/01/2010 onwards.

 

The demand notice directing the complainant to pay the tax was sent to him.  But it was returned by postal authorities with remarks not known.  So it was served to the defaulter (complainant).  In the mean time government has announced onetime settlement for such vehicle vide G.O.(P) No.14/2020 Trans dated 26/03/2020 (SRO 252/2020).

 

Complainant’s claim that he has paid tax of the vehicle up to 31/12/2020 is not true.  It was paid only up to 31/12/2009.  He himself informed this vehicle was entrusted with first opposite party during January 2011.  From this it is clear that one had used this vehicle without payment of tax, without certificate of fitness (which means without registration as envisaged in Section 56 of MV Act) and these actions were never intimated to second opposite party.

 

Complainant can now enjoy the benefit of one time settlement scheme introduced by Government by remitting 30% of tax due for the last 5 years.  If the vehicle is not in existence, he can file an affidavit and plead cancellation of the certificate of registration.  If no other legal or departmental actions are pending this will be entertained and the certificate of registration will be cancelled on the strength of the affidavit filed by the registered owner which is at his own risk of any misinformation.  Availing of one time settlement may be the intension of complainant.  But it was not mentioned in the complaint.  If the first opposite party has given the required things under CMVR 61 for the termination of hire purchase it will be  accepted along with the affidavit and the registration of the vehicle will be cancelled at the owner’s risk.  If this termination letter is not available the complainant can clear the tax up to 31/03/2020 by  remitting amount but the further inability will be continued.  This may be the circumstances under which the complaint is filed.

(Cont.....5)

 

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Second opposite party is acting on behalf of the Government of Kerala under the MV Act and Rules and also Taxation Act  and Rules and the complainant is not a ‘Consumer’ to a Government Department under Section 2(7) of Consumer Protection Act 2019.  If the first opposite party is willing to issue hypothecation termination letter as per MV Act and the complainant is willing to remit the Tax under one time settlement and also filed an affidavit as per the government order, further liability of the vehicle will be closed and certificate of registration will be cancelled at owner’s risk.

 

Complainant filed proof affidavit and the following documents were marked as Ext.P1 to Ext.P4.

 

Ext.P1 . Letter dated 04/02/2014 addressed to P.A.Shamsudeen from

              Shriram.

Ext.P2 . Registered Letter to P.A.Shamsudeen dated 04/02/2010 Shriram

Ext.P3 . Letter from Motor Vehicle Department Idukki RTO dated

              04/03/2020

Ext.P4 . Lawyers notice dated 19/08/2020.

 

 As opposite parties and counsels are not present, counsel for complainant is heard.

 

Evidence in this case includes the pleadings of complainant and second opposite party  and the exhibits marked  on the side of complainant.  We have examined the same.  On a perusal of above, following points arise for consideration.

1 . Whether there is any deficiency in service or unfair trade practice from  the side of opposite parties?

2 . If so, for what reliefs the complainant is entitled to ?

3 . Costs of litigation

 

Point No.1

 

On a careful examination of the pleadings of complainant and second opposite party, it is seen that certain contentions raised by complainant are not true. Second opposite party has categorically stated that contention of complainant that he had paid tax up to 31/12/2010 is not correct.  It was paid only up to 31/12/2009.  Similarly, fitness certificate had expired on 02/03/2010.  But complainant alleges that he entrusted the vehicle with first opposite party in January 2011.  Contention of second opposite party is not rebutted by complainant.  How the vehicle was plied on the road without paying tax and obtaining fitness certificate up to the so called  date of entrustment of the vehicle

                                                                                                                                  (Cont.....6)

 

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with first opposite party is best known to him.  It is distressing to note that why the motor vehicles department officials had not taken any action against the owner of the vehicle for the past 10 years till they issued Ext.P3 notice dated 04/03/2020.  It is the duty of the officials of the motor vehicles department to ensure the payment of tax in time and to prevent use of the vehicle without complying with the provisions of the Motor Vehicles Act and rules.  Main allegations raised by the complainant are against first opposite party.  Ext.P2 shows that loan instalment dues up to 01/02/2010 was Rs.1,79,902/-.  Total amount demanded by first opposite party is Rs.3,07,826/-.  As per Ext.P1, it is seen that first opposite party collected Rs.5000/- from complainant on 04/02/2014 towards full and final settlement  of the vehicle in question.  Even though many allegations were raised by complainant against first opposite party, they have not responded to the notice issued from this Commission or filed written version.  Besides, even after receiving lawyer’s notice, they have not responded to the same.   This shows that they have nothing to contradict the contentions of complainant.    Inaction on the part of first opposite party shows that they had deliberately not taken steps to charge the ownership of the vehicle in their name or to whom it was subsequently sold by them.  Ext.P1 shows that they had collected Rs.5000/- towards full and final settlement.   What happened during the period from January 2011 to date of Ext.P1 is not disclosed in the complaint. Complainant failed to renew registration and obtain fitness certificate for the vehicle from 01/01/2010 and 02/03/2010 respectively till the alleged date of surrender of the vehicle to first opposite party ie, January 2011 as seen from the written version of second opposite party.  This was not rebutted by complainant.  Hence, he is liable for the same.  Complainant  has no case that he had applied for one time settlement of arrears.  He has not adduced any evidence to show that he had informed Motor Vehicle Department about  surrender of vehicle to first opposite party  except a vague statement in the complaint that he had explained   the   department  about  details  of  the   vehicle  after  receipt  of   Ext.P3. Complainant failed to avail the one time settlement scheme announced by the government as per SRO 252/2020 dated 23/03/2020 or under earlier SRO’s issued by government.  Considering the entire facts of the case, we are of the considered view that there is deficiency in service on the part of opposite party No.1 even after they received Rs.5000/- as full and final settlement  of account as evidenced by Ext.P1 for which they are liable under the provisions of Consumer Protection Act 2019.  So point No.1 is answered in the affirmative.

 

Point No.2

 

Considering the facts of the case and in the light of our observations and findings on point No.1, we are of the view that complainant is entitled to sufficient reliefs.  Hence                                                                                                                                        (Cont...7)

• 7  -

we direct first opposite party to pay to complainant compensation of Rs.1,00,000/- (One Lakh rupees) for the deficiency in service on the part of first  opposite party.  This amount is calculated based on the date of Ext.P1 out of compensation claimed Rs.157000/- by complainant.  From available records, complainant is responsible for payment of tax and other matters till the date of Ext.P1.

 

Regarding  second prayer for direction to second  opposite party  to change ownership of vehicle even  without no objection certificate from second opposite party cannot be allowed by this Commission as the prescribed procedure for the same to be followed by Motor Vehicle Department.  It is for them to decide the issue as per law on request made by complainant. First opposite party is directed to issue necessary certificates to complainant for change of ownership and cancellation of hypothecation of the vehicle to the complainant within 30 days of receipt of this order for producing before Motor Vehicle Department and second opposite party have to take necessary action for the same on production of necessary documents and payment of dues if any prescribed by law.  Besides, first opposite party is directed to issue necessary certificate to complainant for change of ownership and cancellation of hypothecation of the vehicle to complainant within 30 days as ordered above, liability for future dues in respect of the above vehicle will be on first opposite party and second opposite party is at liberty to take action against them  prescribed by law.

 

 Point No.3

 

Considering the entire aspects of the case, we find that litigation costs of Rs.2000/- (Two Thousand rupees) are also to be paid by first opposite party to the complainant.

 

 

In the result, complaint is allowed in part as follows.

 

1 . First opposite party is directed to pay Rs.1,00,000/- as compensation to complainant within 30 days or receipt of this order failing which first opposite party  is liable to pay simple interest @ 10 % per annum on above amount from date of order till full realisation by complainant.  Besides, first opposite party is directed to issue necessary certificate to complainant for change of ownership and cancellation of hypothecation of the vehicle to complainant within 30 days of receipt of a copy of this order, liability for future dues after 31.3.2020 in respect of the above vehicle will be on first opposite party and second opposite party is at liberty to take action against them as prescribed by law.

                                                                                                                                                                                                                                                                                        (Cont.....8)

 

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2 . Litigation costs of Rs.2000/- (Two Thousand only) also to be paid by first opposite party to complainant within the above period.  If first opposite party fails to comply with this order, complainant is entitled to recover the same as ordered above.

 

Above amounts to be paid by them within 30 days of receipt of this order failing which complainant is entitled to recover the same with simple interest @ 10% per annum except on litigation costs till realisation.

 

Extra copies filed by parties shall be taken back by them without delay.

 

       Pronounced by this Commission on this the 20^th day of October, 2022.

 

 

                                                                          Sd/-

                                                                   SRI.AMPADY K.S., MEMBER

                                                                                             Sd/-

                                                                    SRI.C.SURESHKUMAR, PRESIDENT

                                                                       Sd/-

                                                                            SMT.ASAMOL P., MEMBER 

 

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - Letter dated 04/02/2014 addressed to P.A.Shamsudeen from

              Shriram.

Ext.P2 - Registered Letter to P.A.Shamsudeen dated 04/02/2010 Shriram

Ext.P3 - Letter from Motor Vehicle Department Idukki RTO dated

              04/03/2020

Ext.P4 - Lawyers notice dated 19/08/2020.

On the side of the Opposite Party :

Nil                                                                                      

                                                                                               Forwarded by Order

 

                                                                                        ASSISTANT REGISTRAR