Sri. P. Satheesh Chandran Nair (President):

          The complainant filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

                  2. The case of the complainant is as follows:  On 23.12.2011 the complainant purchased an APE diesel passenger auto-rickshaw bearing Reg.No.KL-33-C-6930 to the 2^nd opposite party for an amount of Rs.1,63,600/-.  At the time of purchase he paid Rs.29,999/- as a down payment to the 2^nd opposite party.  The complainant opted the above said purchase by seeing an advertisement in the month of December 2011 by the 2^nd opposite party.  It is contended that apart from the payment of Rs.29,999/- he handed over six signed blank cheque leafs to the 2^nd opposite party bearing Nos.343161 to 313166 of the Corporation Bank, Thiruvalla Branch.  On 23.12.2011 the 2^nd opposite party assured the complainant that an amount of Rs.10,000/- would be deducted from the down payment amount for tax instalment, insurance premium and service charges.  It is further contended that the balance amount Rs.19,999/- would be credited in the value of the vehicle (Rs.1,63,000/-).  The opposite parties allowed a loan of Rs.1,43,001/- to the complainant with the EMI of Rs.3,333/- for 51 instalments.  It is contended that believing the assurance of the 2^nd opposite party the complainant remitted the tax amount of Rs.2,000/- on 06.01.2012 for a period commenced from 23.12.2011 to 20.09.2016.  The opposite party 2 was not ready to deduct this amount, i.e. Rs.2,000/- from the price of the vehicle.  It is further contended that instead of the instalment amount of Rs.3,333/- the 2^nd opposite party informed to the complainant for remitting Rs.4,820/- as monthly instalment and only Rs.5,000/- could be considered as the payment towards the principal amount out of the down payment of Rs.29,999/-.  It is again stated that from 2012 January onwards the complainant remitted the EMI for an amount of Rs.4,820/- as informed by opposite party 2.  Thus he remitted 17 monthly instalments at the office of the 2^nd opposite party.  It is further contended that the opposite party 2 violated the assurance given to the complainant by collecting Rs.4,820/- as EMI instead of Rs.3,333/- and misappropriated Rs.14,999/- from the down payment amount of Rs.29,999/-.  According to the complainant, all these act of the opposite parties comes under unfair trade practice and deficiency in service on their side.  Hence the complaint for crediting the misappropriated amount of Rs.14,999/- in favour of the complainant’s account and for crediting Rs.2,000/- being the tax amount paid by the complainant in favour of the complainant’s account, return of the six signed blank cheque leaf, furnish the copies of the vehicle on record, compensation, cost etc. etc.

                   3. This Forum entertained this complaint and issued notice to opposite parties for their appearance.  Though opposite party 1 received notice from this Forum he did not appear before the Forum.  Hence opposite party 1 is set exparte on 01.03.2016.

                   4. Opposite party 2 entered appearance and filed their version as follows:  According to the 2^nd opposite party, the petition is not maintainable either in law or on facts.  It is contended that the complainant availed the above said loan from Pathanamthitta Branch of 2^nd opposite party’s office after executing an arbitration agreement by the complainant and one surety.  It is contended that the complainant defaulted the payment of loan amount from 22.06.2013 onwards hence opposite parties filed an arbitration O.P as O.P (Arb) No.181/14 before the District Court, Pathanamthitta and the said case is pending before the said court.  It is further contended that an arbitration proceedings is pending before the District Court there is a legal bar to proceed with the present consumer complaint.  The complainant availed this loan after executing an arbitration agreement and after convincing the terms and conditions of the loan agreement.  It is further stated that there is an amount of Rs.1,75,668/- is due to the opposite parties as on 14.08.2014 and the complainant defaulted the payment of instalments from 22.06.2013 onwards.  Therefore, the opposite party 2 prayed to dismiss this complaint with cost to them. 

                  5. We peruse the complaint, version and records before us and framed the following issues for consideration:

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

                   6. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and he is examined as PW1 in this case.  Ext.A1 to A3 series (18 Nos.) were also marked through PW1.  Ext.A1 is the notice of the vehicle loan package published by 2^nd opposite party.  Ext.A2 is the copy of R.C Book of the complainant.  Ext.A3 series are the details of the payment to opposite parties through Corporation Bank.  Though the opposite party 2’s counsel cross-examined PW1, opposite party 2 did not adduce any evidence on their side.  On 19.02.2017 opposite party 2’s counsel reported ‘no instruction’ and the case is posted for hearing on 27.02.2017.  The complainant’s counsel appeared before the Forum and we heard the case on 17.03.2017.

                   7. Point No.1:-  The opposite party 2 contended that the case is not maintainable either in law or on fact.  Opposite party 2 mainly contended that the complainant availed the loan from opposite parties by executing a loan agreement as well as an arbitration agreement along with opposite parties.  It is further contended that as the complainant defaulted the payment of instalment from 22.06.2013 the opposite party was forced to file an arbitration case before the District Court, Pathanamthitta.  When we are considering the question of maintainability, it is to see that the complainant availed a loan from opposite parties and it is also come out in evidence to see that an amount of Rs.29,999/- was paid by the complainant as the 1^st instalment for this loan transaction.  With regard to this aspect, either the complainant or the opposite parties have raised any negative point before us.  Hence it is easily to be inferred that the complainant is a consumer of opposite parties and the opposite parties are service providers of the complainant.  Hence Point No.1 found in favour of the complainant. 

                   8. Point Nos.2 & 3:-  For the sake of convenience, we would like to consider the Point No.2 and 3 together.  The next question to be considered is whether the opposite parties committed any deficiency in service as alleged by PW1.  When we peruse the deposition of PW1 the contents of the chief examination is more or less as per the terms of this complaint.  In order to substantiate the contention of the complainant, the complainant produced and marked Ext.A1 the notice published by opposite parties.  The heading of the Ext.A1 is, “കുറഞ്ഞ മുതൽമുടക്കിൽ കൂടുതൽ ലാഭം” and the 2^nd Page, “ED കോട്ടിങ്ങോടു കൂടിയ ആപേ ത്രീവീലർ ഇനി നിങ്ങള്ക്ക് സ്വന്തം. ഏറ്റവും കുറഞ്ഞ മുതൽമുടക്കിൽ ഡൌണ് പേയ്മെൻറ് 29,999 രൂപ* EMI 3,333 രൂപ മുതൽ”.  No doubt, this brochure is an attractive notice to persons who are willing to purchase these kinds of vehicles.  On the basis of this advertisement and believing the contents of this advertisement the complainant happened to purchase this vehicle.  When we evaluating the evidence of this case, it can be seen that the opposite parties deliberately or purposefully deviated from the assurance given by Ext.A1 and tried to realise an exorbitant amount from the complainant.  Ext.A2 is the copy of the R.C Book of the complainant.  Ext.A3 series (18 in Nos.) are the details showing the payment to opposite parties through Corporation Bank.  When we evaluate the cross-examination of PW1 by opposite party 2, it reveals that there is an arbitration case is pending before the District Court, Pathanamthitta.  But it is to be noted that opposite party 2 failed to produce or mark any document to show that an arbitration case is existing before the District Court as contended.  Moreover, opposite party 2 is failed to produce any document to show that there is an arbitration agreement which is existing between the complainant and opposite parties as alleged.  Though the complainant produced and marked Ext.A3 series, remittance of money through Canara Bank the opposite party totally failed to challenge or discard the positive evidence adduced by PW1 before the Forum.  In the light of the evidence discussed above, it can be easily inferred that the opposite parties in this case committed grave unfair trade practice and deficiency in service by violating the contents published as per Ext.A1 document.  Therefore, we find that the complainant is succeeded to prove the deficiency in service or unfair trade practice on the part of the opposite parties.  It is also found that opposite party 1 and 2 are jointly and severally liable to the complainant.  Hence Point No.2 and 3 are also found in favour of the complainant. 

                   9. In the result, we pass the following orders:

1. Opposite parties 1 and 2 are directed to credit Rs.14,999/- (Rupees Fourteen Thousand Nine hundred and ninety nine only) plus Rs.2,000/- (Rupees Two Thousand only) i.e., Rs.16,999/- on the account of the complainant with 10% interest from the date of filing of this petition, i.e. 19.01.2016.
2. A compensation of Rs.5,000/- (Rupees Five Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand Five hundred only) is also awarded in favour of the complainant from opposite parties 1 and 2 with 10% interest from the date of receipt of this order onwards.
3. Opposite parties 1 and 2 are also directed to comply the condition stated in Ext.A1 for calculating the instalment and interest of this loan transaction.
4. The operation of cheque leaves referred in Para 2 of this order is hereby cancelled.
5. The opposite parties are also directed to comply these orders within 15 days of receipt of this order.

         Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of March, 2017.

                                                                                  (Sd/-)

                                                     P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                 (President)

Smt. Sheela Jacob (Member)               :     (Sd/-)

Appendix

Witness examined on the side of the complainant:

PW1 :  Jose K.P

Exhibits marked on the side of the complainant:

A1 :  Notice of the vehicle loan package published by 2^nd opposite party. 

A2 :  Copy of R.C Book of the complainant. 

A3 series :  Details of the payment to opposite parties through Corporation 

                  Bank. 

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

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

                                                                                                                                                    (By Order)

Copy to:- (1) Jose K.P, Kripalayam House, Thrikodithanam,

                    Changanassery, Kottayam Dist.

2.  SML Finance Ltd., 1^st Floor, Puthenparampil Building, 

          Near Aban Junction, Punaloor Road, Pathanamthitta.

3. The Branch Manager, SML Finance Ltd.,

          M.C. Road, Thiruvalla.

     (4) The Stock File.