By Smt. C.S. Sulekha Beevi, President, Facts:- 1. The case of the complainant is that he purchased a Swaraj Mazda bus Chasis for earning his livelihood by self employment. Complainant availed finance from opposite party for the said purchase. He was made to put his signatures in many pages including blank revenue stamp affixed papers as well as stamp papers. He was also directed to submit several signed blank cheque leaves. Opposite party did not inform him about the terms and conditions of the finance and he was told that the details of payment would be furnished later. After the formalities of affixing signatures the bus chasis was delivered to the complainant. He took the same to Yamuna Body Works at Cherani near Manjeri for constructing the body on the chasis. Complainant was under the strong belief that the income derived by plying the vehicle would fetch him sufficient amount to repay the monthly instalments, and to meet the expenses for his livelihood. 2. While the body work upon the chasis was in progress, to the surprise of complainant, he received a payment chart from opposite party which stated that he had to repay Rs.10,12,718/- in 60 instalments. It was also shown that the amount advanced is Rs.6,50,000/-. Complainant avers that the actual price of the chasis is only Rs.4,75,000/- and there is no chance of opposite party to advance Rs.6,50,000/- towards purchase. Complainant then requested opposite party to show the sales bill. Representatives of opposite party refused to show the bill but assured that the difference in amount collected would be kept as fixed deposits on behalf of complainant and would be adjusted to the monthly instalments payable by complainant. Though complainant enquired about the difference in interest opposite party remained silent. The request of complainant to issue receipts evidencing payment towards the above deposits was also flatly refused by opposite party. Thereafter one of the representatives of opposite party assured the complainant that he would obtain receipts for the deposits. Trusting his words complainant paid Rs.15,000/- towards first instalment on 19-01-2003 even though the amount to be paid as first instalment according to the chart was Rs.22,358/-. He was informed that the chart will be revised according to the actual purchase value of the chasis. 3. Meanwhile the body building work was completed and the cost of the work was Rs.1,50,000/-. Out of this complainant paid Rs.1,15,000/- and Rs.35,000/- is still due to the body builder. Complainant received notice from the said body builders to clear the dues. Even though opposite party did not revise the chart opposite party issued a lawyer notice dated, 16-7-2003 in which it was stated that the vehicle is repossessed by opposite party. In the said notice it was also stated that on 27-5-2003 complainant made a representation that he is not interested in the vehicle and intended to terminate the lease. Complainant has never given any such letter and it is concocted by using the signed blank papers obtained at the time of executing the loan transaction. That complainant lost the following amounts without any benefit: Amount already paid to body builder -- 1,15,000/- Payment towards first instalment -- 15,000/- Incidental expenses -- 5,000/- Balance to be paid to body builder -- 35,000/- -- ----------------- Rs.1,70,000/- -------------------- 4. That complainant incurred loss of Rs.1,70,000/- with no return. That complainant was not able to ply the vehicle even for a single minute on the road. After repossessing the vehicle opposite party send a registered notice dated, 20-11-2003 through their Law Officer in which complainant was called upon to pay an amount of Rs.3,89,785/- alleged to be balance due from the complainant. From this letter complainant came to know that opposite party has already sold the vehicle. Even the sale value was not shown in the said letter. 5. On receipt of this letter complainant send a lawyer notice on 29-11-2003 to opposite party explaining the real state of things and also claiming compensation. Opposite party replied stating new stories. Opposite party contended in the notice that a demand draft for Rs.3,02,000/- was issued by opposite party in favour of Rasna Body Works at the time of agreement. Actually complainant is quite unaware about this fact and does not even know where Rasna Body Works is situated. The body of the bus was constructed at Yamuna Body Works and a sum of Rs.35,000/- is still due to them from complainant. Opposite party who is a financier is unscrupulously exploiting consumers. That complainant has not only lost his money but is being hunted by opposite party to pay a huge amount without any benefit. Hence this complaint praying to direct opposite party the following:- (i) to pay an amount of Rs.1,70,000/- with interest @ 18% per annum to the complainant towards the expenses incurred by him on various heads. (ii) to pay Rs.1,00,000/- towards loss, hardships and mental agony suffered by complainant. (iii) to pay Rs.10,000/- as cost of these proceedings. (iv) to restrain opposite party from initiating any steps against complainant in recovering the amount of Rs.3,89,785/- which the complainant is not liable to pay. 6. Opposite party has filed version denying the allegations in the complaint. It is submitted that this Forum has no jurisdiction to try the case. That as per the lease agreement any dispute has to be adjudicated either by arbitration or by a competent Civil Court. That the vehicle involved in the dispute was purchased for commercial purpose and hence complainant is not a consumer. The real funder of the entire deal is M/s Kerala Transport Development Finance Corporation (KTDFC), which is a government undertaking and being a limb of the state a complaint under Consumer Protection Act is not maintainable. The complaint is bad for non-joinder of necessary parties since the real funder KTDFC has not been made a party. The main dispute being the amount paid to Rasna Body works they are also a necessary party. Further the dealer of the chasis M/s M.K. Automobiles is also a necessary party since complainant disputes the purchase value of the vehicle. 7. It is submitted by opposite party that complainant introduced opposite party to M/s Rasna Automobile Service Station and Body Workshop, Pandikkad and the payment was made by demand draft of Rs.3,02,000/- at the instance of the complainant. That the amount towards purchase value of the vehicle was paid by way of demand draft for Rs.5,65,000/- to the dealer M/s M.K. Automobiles, Malappuram Road, Muttipalam, Manjeri 676 212. That complainant violated all terms of agreement and refused to make payments as specified. Even though the first instalment was Rs.22,356/-, complainant paid only Rs.15,000/-. That opposite party had initiated a proceeding under section 138 of Negotiable Instrument Act against the complainant as CMP 1974/2004 – S.T.No.99/2004 before the Chief Judicial magistrate Court, Manjeri, since the cheque issued by him towards the amount due to opposite party was dishonoured. This case is still pending. The complainant has suppressed the pendency of the said proceedings and all ancilliary proceedings in the complaint. That this complaint is filed after initiation of the said proceedings and it is filed only as an experiment to escape the liability. The complaint is without bonafides and is liable to be dismissed. 8. Evidence consists of the affidavit filed by complainant and Exts.A1 to A7 marked on his side. Opposite party has filed counter affidavit. No documents filed by opposite party. Either side has not adduced any oral evidence. 9. Points for consideration:- (i) Whether this Forum has jurisdiction to try the case. (ii) Whether complainant is a consumer. (iii) Whether the complaint is bad for non-joinder of necessary parties. (iv) Whether opposite party is deficient in service. (v) If so, reliefs and costs. 10. Point (i):- Opposite party disputes the jurisdiction of this Forum to try the case upon the contention that clause 35 and 36 of the lease agreement specifically stipulates that any dispute between the parties has to be adjudicated either by arbitration or by a competent Civil Court. Opposite party has neither produced the agreement or filed any application under Section 8 of the Arbitration and Conciliation Act, 1996. Any such application should be filed before filing the first statement. In this case opposite party has already filed the version. For these reasons we hold that the contention of opposite party that this Forum has no jurisdiction to try the case is devoid of any merits. Therefore we hold that this Forum has jurisdiction to entertain this complaint. This point found in favour of complainant. 11. Point (ii):- According to opposite party the vehicle being a bus was purchased for commercial purpose and hence opposite party contends that complainant is not a consumer. It is also stated that there is no consumer relationship between complainant and opposite party because the entire dealing arose out of the lease agreement. As against this it was submitted on behalf of complainant that the bus was purchased as means for earning the livelihood of the complainant by self employment. Complainant has pleaded and proved by evidence tendered through affidavit that the vehicle was purchased for earning his livelihood by self employment. There is no contra evidence adduced by opposite party. Hence we find complainant is a consumer. The contention that the dispute has to be adjudicated by Civil Court only because the dealing arose out of lease agreement is also untenable. Even though the transaction arose out of the lease agreement, the definition of ’Service’ under Sec.2(1)(o) of Consumer Protection Act, 1986 as amended expressly includes services in connection with financing. We therefore have no doubt to conclude that there is consumer relationship between parties and that this complaint is maintainable before this forum. 12. Point (iii):- The contention of opposite party is that the complaint is bad for non-joinder of necessary parties and hence not maintainable. It is the case of opposite party that the real funder of the finance was Kerala Transport Development Finance Corporation and hence the Corporation has to be impleaded. We find no merits in this submission. Admittedly the lease agreement is between complainant and opposite party. Hence even if the funds for financing were disbursed to opposite party by Kerala Transport Development Finance Corporation it is not necessary for the complainant to implead them as parties to this complaint. The contention that the dealer of the chasis M/s M.K. Automobiles and the alleged body building workshop M/s Rasna Automobiles have to be made parties to this complaint are perse baseless. Complainant does not claim any relief from the above mentioned parties. For the above reasons we find that the complaint is not bad for non-joinder of parties. 13. Point (iv):- The foremost dispute is with regard to the total amount financed by opposite party. Complainant contends that the value of bus-chasis was only Rs.4,75,000/- and there was no reason to avail finance of Rs.6,50,000/- as stated in Ext.A1 which is the repayment chart issued by opposite party. He alleges that opposite party changed the figure of the finance amount. As against this opposite party contends that Rs.5,65,000/- was paid by opposite party to the dealer as value of chasis for which invoice was issued. That an amount of Rs.3,02,000/- was issued as demand draft to Rasna Body Works as expenses for body construction, as instructed by complainant. Apart from Ext.A1 there is no other document which evidences the amount financed to complainant. Complainant has not explicitly stated what was the amount he intended to avail or what was the amount mutually agreed between parties. Complainant being the purchaser could have obtained a duplicate copy of the bill which he has failed to do. Complainant further contends that on coming to know about the change of figure in advance amount he enquired about it to opposite party. That opposite party informed him that it would be kept as fixed deposits. That opposite party did not respond to his query regarding difference in interest. It is rather odd that when complainant is aware that Rs.1,75,000/- is in excess in the total finance shown in Ext.A1 he has made payment of Rs.15,000/- towards the first instalment. Further even after receiving Ext.A3 notice after repossession of the vehicle complainant has not issued any reply. Only after receiving Ext.A4 notice demanding Rs.3,89,785/- as balance due after sale of vehicle has he issued Ext.A5 notice to opposite party with the assistance of the lawyer. Though complainant alleges change in the figure of advance amount which is substantially a huge amount complainant does not seek any relief in particular in this regard. For these reasons the contention of complainant that opposite party changed the figure of advance amount in Ext.A1 from Rs.4,75,000/- to Rs.6,50,000/- is improbable and unacceptable to us. 14. The second grievance of the complainant is regarding the payment made by him towards expenses for body construction. He contends that body work was done at Yamuna Body Works and the total cost of body work is Rs.1,50,000/-. It is his case that he paid Rs.1,15,000/- and a balance of Rs.35,000/- is still due to the said workshop. As against this opposite party contends that they issued a demand draft of Rs.3,02,000/- to Rasna Body Works on instance of the complainant. Apart from the vague affirmation there is no evidence to support the contention of opposite party. Complainant relies upon Ext.A2 which is a document purported to be issued by Yamuna Body Works. This document does not bear the seal of the Workshop. It is signed by one Shaji. It is not stated anywhere in what capacity the said Shaji has signed in Ext.A2. The document does not bear the signature of complainant. Further in the complaint filed in 2004 complainant avers that he has received notice from Yamuna Body Works to pay the balance of Rs.35,000/-. Complainant has not produced any such notice. According to his affirmation in the affidavit which is filed in 2008 he reiterates that the said amount is still due to Yamuna Body Works. If this contention is to be accepted in toto then it would appear that Yamuna Body Works has been very lenient to the complainant for not initiating any steps against him for realising the said amount for all these four years. We therefore do not consider that Ext.A2 is reliable. Interestingly, the main relief claimed in the complaint is the payment made by complainant to Yamuna Body Works as cost of body construction based upon Ext.A2. For the above reasons we hold that complainant has failed to substantiate the genuineness of his claim that he spent Rs.1,50,000/- towards body construction by making payment to Yamuna Body Works. 15. One other grievance of complainant is that opposite party repossessed the vehicle illegally. Opposite party denies this and contends that complainant has willfully surrendered the vehicle. In Ext.A3 opposite party has stated that complainant has returned the vehicle with intention to terminate lease. But in Ext.A4 opposite party has categorically stated that the vehicle was repossessed for default of instalments. In Ext.A4 opposite party has demanded complainant to pay Rs.3,89,785/- as balance due from the complainant after adjustment of the sale proceeds. In the instant case complainant prays to restrain opposite party from realising Rs.3,89,785/- from him. Admittedly a criminal case under Section 138 of Negotiable Instruments Act is pending between parties. Since the matter is subjudice we refrain from entering any opinion upon these aspects and confine ourselves to the question of repossession of the vehicle. In Ext.A4 opposite party has stated as under: “As you committed serious default in repayment, we were forced to repossess the above said vehicle. On intimating you and advertising in newspaper you did not settle the accounts. Hence we sold the vehicle on 16-10-2003 for the best quoted price:” Ext.A4 sufficiently proves that opposite party repossessed the vehicle for default in payment of instalments. The price at which the vehicle was sold is not stated anywhere. Repossession of the vehicle without resorting to the course of law is illegal. From the evidence tendered before us we have no doubt to conclude that opposite party has repossessed the vehicle and sold it without knowledge and consent of complainant. It is settled position of law that Banks and financial institutions should not repossess vehicle by force or without resorting to due course under law. Further opposite party has not intimated the details of sale and sale consideration to the complainant. Needless to say that the vehicle was a brand new vehicle. Complainant contends that he had not plied it even for a single day. Even according to opposite party the purchase price of chasis is Rs.5,65,000/-. The amount for body work is Rs.3,02,000/-. As per Ext.A1 the amount financed is only Rs.6,50,000/-. On such circumstances the sale of a new vehicle ought to have fetched a price sufficient to close the loan and finally settle the finance availed by complainant. Opposite party herein has demanded Rs.3,89,785/- as balance due. The details of sale and sale consideration received is suppressed by opposite party. It can be reasonably inferred that the brand new vehicle was sold at a throw away price, to the detriment of the complainant. The deficiency is obvious. From the above discussion we hold that the act of opposite party in repossessing the vehicle without resorting to the course of law and selling it at a very low price amounts to deficiency in service. 16. Point (v):- Complainant claims Rs.1,50,000/- as expenses for body construction works. We have already found that there is no reliable evidence to support this claim. He claims Rs.5,000/- towards incidental expenses which is also not supported by any document and is only to be disallowed. Complainant is definitely entitled to be compensated for the deficiency. He has repaid only Rs.15,000/- towards the finance amount. The vehicle was purchased by him for earning his livelihood. It was sold for a throw-away price. Complainant claims Rs.1,00,000/- as compensation which according to us is high and inflated. Here, we have to emphasize that complainant has repaid only Rs.15,000/- towards the finance availed. There has been no tender or offer to pay the defaulted instalments even after receiving Ext.A3 notice. Upon the totality of facts and circumstances we hold that an amount of Rs.30,000/- as compensation along with costs of Rs.2,500/- would meet the ends of justice. All other reliefs are disallowed. 17. In the result, we partly allow this complaint and order opposite party to pay Rs.30,000/- (Rupees Thirty thousand only) to the complainant along with costs of Rs.2,500/- (Rupees Two thousand five hundred only) within one month from the date of receipt of copy of this order. Dated this 7th day of November, 2008. Sd/- C.S. SULEKHA BEEVI, PRESIDENT Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER APPENDIX Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to A7 Ext.A1 : Photo copy of the repayment chart given by opposite party to complainant. Ext.A2 : Document of understanding by Shaji.. Ext.A3 : Photo copy of the lawyer notice dated, 16-7-2003 sent by opposite party’s counsel to complainant. Ext.A4 : Photo copy of the letter dated, 20-11-2003 from opposite party to complainant. Ext.A5 : Photo copy of the lawyer notice dated, 29-11-2003 by complainant’s counsel to opposite party. Ext.A6 : Photo copy of the reply lawyer notice dated, 09-12-2003 by opposite party’s counsel to complainant’s counsel. Ext.A7 : Photo copy of the Notice dated, 06-3-2004 sent by opposite party’s counsel to complainant. Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Nil Sd/- C.S. SULEKHA BEEVI, PRESIDENT Sd/- MOHAMMED MUSTAFA KOOTHRADAN, Sd/- MEMBER E. AYISHAKUTTY, MEMBER