IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 20th day of December, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member,
Sri. K.M. Anto, Member
C C No. 106/2018 (filed on 05-06-2018)
Petitioner : Joseph Chacko,
Varikkattu House,
Kurisummodu P.O.,
Changanassery – 686104.
(Adv. Abraham Philip)
Vs.
Opposite party : Tata Motor Finance Ltd.,
Kalathipadi Branch,
Opp.Federal Bank,
Kalathipadi, K.K. Road, Kottayam-686010.
(Adv.P.Fazil, Adv. Jayasree Manoj,
Adv.Jithin Paul Varghese, Adv.Akash K.R.
O R D E R
Smt. Bindhu R. Member
The complainant purchased a Tata Acc-Zip vehicle under the finance of Tata Motors Finance Ltd. with Reg. KL-33-C-9787 in 2012. After 3 years, due to the weak health condition of the complainant he surrendered the vehicle to the opposite party as per mutual agreement along with all the documents. As per rules after the transfer of the vehicle, the opposite party’s company is liable to change the ownership of the vehicle from the name of the complainant. But the opposite party has not done so. Moreover the opposite party has transferred the said vehicle to another party who sold it to some other party with the name of the complainant in the RC book. As per the information received from the opposite party itself the complainant came to know that the vehicle was sold to one Shajahan from Trivandrum and from him to one Rasheed at Valancherry and now the vehicle has been driven by the said Rasheed at Valancherry. Though the complainant contacted the Kalathypady Branch Tata motors Finance on 2015 onwards, they were avoiding the complainant by stating that such subjects are dealt with their Ernakulam Office. There after the complainant kept contacting the office of the opposite party at Ernakulam but they also did not turn up. The road tax of the said vehicle had not been paid either by the Tata motors finance Company or somebody else after 2015. Fitness test also was not done as per the RTO records. The vehicle has been used on the roads without any valid insurance, tax or other records.
The complainant received revenue recovery notice on 01.03.2018 as the road tax of the said vehicle was due for 2015-16,2016-17 and 2017-18. The complainant contacted the RTO immediately. But the RTO informed him that as far the RC book remains in his name he would be liable. The complainant received another revenue recovery order on 26.02.18 for the recovery of the tax due for the last three years of Rs.8,677/-. The staff of the village office also came for issuing the order. Thus defaming the complainant before the public at large. He tried to contact Tata motors finance several times but they did not respond. Again the complainant tried to contact the said Sahajahan who has allegedly purchased his vehicle but he denied as he had not purchased any vehicle from the complainant. When the complaint submitted before the District Collector, he obtained a relaxation as to pay the amount in five installments. On 26.03.18 the complainant sent a registered letter to Tata Motors which was received by them. But they sent no reply so the complainant caused to send an advocate notice in the same month which was returned as unclaimed. Such an act of deficiency of service from the part of the opposite party has caused several hardships to the complainant and this complaint was filed for compensation.
Upon notice from this Commission the opposite party appeared and filed version. The opposite party contented in his version that the initial down payment of Rs.20,550/- was paid by the complainant and the remaining amount of Rs.1,78,000/- was financed by the opposite party. The total finance charges agreed to be paid by the complainant is Rs.78,800/-. Thus the contract value agreed to be repaid by the complainant is Rs.2,56,800/- in 48 equated monthly installments of Rs.5,350/-.
As per the terms of the loan cum hypothecation cum guaranty agreement bearing No.5000934408 dated 31.03.12 executed by the complainant in favour of the opposite party, the complainant had to pay penalty charges as agreed and to surrender the vehicle in the event of default. The complainant defaulted the payments and the opposite party issued notice to the complainant to regularize the account or surrender the vehicle. Consequently the vehicle was surrendered and possession was handover to one Shajahan being the auction purchaser. According to the opposite party the surrender /repossession of the subject vehicle was the direct consequence of the default in remitting the installments committed by the complainant and the opposite party has exercised its rights under the agreement and has sold the vehicle after complying all the legal requirements. The liability to pay road tax is that of the complainant, who was the original RC owner or the transferee owner. The complainant cannot demand the road tax paid by him from the opposite party. If at all he is aggrieved by any portion of amount of road tax recovered from him subsequent to the repossession of the subject vehicle, he may have to claim from the transferee owner. The opposite party is not liable to pay the amount of tax alleged to have been recovered from the complainant for the year 2015-16,16-17,17-18 as alleged. The opposite party had issued a detailed reply notice on 07.06.18 to the complainant. The responsibility to transfer the vehicle to the name of the purchaser is that of the RC owner or that of the purchaser. The opposite party had suffered huge loss on account of the default committed by the complainant. Even after sale of the subject vehicle and adjusting the sale procedure to the account of the complainant, the opposite party suffered a loss of Rs.50,719.12 as on 20.08.19 the complainant is liable to pay an amount of Rs.82,128/- to the full and final settlement of the loan account. The opposite party is not at all liable to pay the tax or compensate the complainant. The complaint is liable to be dismissed.
The complainant has produced Ext.A1 to Ext.A6 along with his proof affidavit.
The opposite party has not adduced any evidence.
On perusal of the complaint, version and the evidence on record the points to be answered are
- Whether the complainant has proved the deficiency of the service on the part of the opposite party?
- If so what are the reliefs?
Point No.1 and 2
The complainant had surrendered his vehicle Tata Acc-Zip on 21.04.2015 and thereafter the opposite party sold the vehicle to some other person. After three years the complainant got a revenue recovery notice for the recovery of the tax due for three years. The complainant alleges that it was because of the opposite party who did not take necessary steps for transferring the ownership from the complainant to the purchaser after the same. So the complaint is filed for the transfer of the ownership, repayment of the recovered amount etc. On the other hand the opposite party had defended the allegation that they are not liable to take the responsibility of payment of tax or transfer of ownership.
The opposite party had repossessed the vehicle on 21.04.15 admittedly and thereafter they had sold the said vehicle in auction to one Shajahan who was the successful bidder. Here the reason for repossession as stated by the opposite party is that the complainant had defaulted the repayment of the loan amount several times. Further according to the opposite party even after sale conducted by them and receiving the sale proceedings to adjust the loan amount they were not bound to transfer the ownership of the vehicle from the existing owner to the auction purchaser. Not only that the opposite party has no responsibility over the liabilities like tax payment of the vehicle after the same. The complainant has to contact the transferee purchaser for effecting the same. Ext. A1 is the inventory prepared by the opposite party at the time of repossession. Thereafter when a purchaser comes to the scene, they should effect the sale and transfer the ownership to the transferee.
Though the opposite party handed over the possession of the vehicle to one auction purchaser, but thereafter the opposite party did not transferred the ownership to the transferee. The transferee is liable to pay all the legal requirements of the vehicle after the purchase including road tax. But here the auction purchaser did not seem to have paid the road tax of the said vehicle and hence the complainant had to face revenue recovery proceedings for the dues incurred with regard to the road tax. The vehicle was surrendered before the opposite party on 21.04.15 and tax became due from 01.01.15 to 30.03.18 as per the documents produced by the complainant.
The counsel for the opposite party argued that the opposite party has no liability for the tax amount which became due and for the transfer of ownership of the vehicle. It is the complainant who had not made the payment of tax and the opposite party is in no way bound to pay the same.
Sec. 2(19) of Motor Vehicles Act defines “owner means, were the person in possession of a motor vehicle is a minor, the guardian of such minor and in relation to the motor vehicle which is the subject of hire purchase agreement, the person in possession under that agreement”.
So as the expression of owner must include the person who has the actual possession and control of the vehicle. It has therefore to be construed in the facts and circumstances of a given case. The expression owner must include in a given case the person who has the actual possession and control of the vehicle. (AIR 1997 SC 3444, Rajastan State Road Transport Corporation vs. Kailashnath Kothari and others).
The opposite party has transferred the possession of the vehicle to a third party in an auction sale. The opposite party being the hypothecating authority who conducted the sale stepping into the shoes of the registered owner has the obligation to take necessary steps to transfer the name and ownership to the transferee. Moreover, before the sale of a surrendered vehicle, the opposite party should transfer ownership of the vehicle. As the demand for surrender the vehicle was made by the opposite party, the hypothecation agreement stands terminated upon the surrender of the vehicle and the financier repossesses it. This should be properly intimated to the registering authority vide form no 35Rule 61 of Rules 1989 as under :
61. Termination of hire-purchase agreements, etc.—(1) An application for making an entry of termination of agreement of hire purchase, lease or hypothecation referred to in sub-section (3) of section 51 shall be made in Form 35 duly signed by the registered owner of the vehicle and the financier, and shall be accompanied by the certificate of registration and the appropriate fee as specified in rule 81.
(2) The application for the issue of a fresh certificate of registration under sub-section (5) of section 51 shall be made in Form 36 and shall be accompanied by a fee as specified in rule 81.
(3) Where the registered owner has refused to deliver the certificate of registration to the financier or has absconded then the registering authority shall issue a notice to the registered owner of the vehicle in Form 37.
As per R.58 the transferor has to obtain a no objection certificate from the registering authority and if not applied properly the same can be refused to be issued by the registering authority.
Here in the case in hand there is no such situation as the complainant has not absconded or refused to deliver certificate of registration to the opposite party. But he has not received an intimation or notice from the opposite party.
S.2(30) of the Central Motor vehicles Act, 1988 defines Owner.
S.2(30): “owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.”
The underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. Thus it is very clear that the hire purchase agency which has taken possession of the vehicle is assumed as the owner of the vehicle upon whom the duty of transferring the ownership lies. The intention of the legislature is clear that the registered owner should not be held liable to tax etc. if the vehicle is not in his possession and control instead it is in the possession of someone else under the agreements referred herein above .(Purnya Kala Devi Vs State of Assam and anr.(2014 -14 SCC(SC) 142),(Mahindra and Mahindra Finance vs. State of UP) – Alahabad HC).
In the light of the above discussion we find that the opposite party has deviated from their duty to change the name of the owner in the registered authority causing hardships to the complainant who had already surrendered his possession. Hence the complaint is allowed.
- The opposite party is directed to change the name of registered owner in the Registration Certificate of the vehicle within 30 days of the date of this order.
- The opposite party is directed to pay Rs.9,451/- to the complainant with an interest @ 6% pa from the date of repossession ie.21.04.2015 till realization.
- The opposite party is directed to pay Rs.5,000/- as compensation and Rs.2,000/- as litigation cost.
The order shall be complied within 30 days from the date of receipt of order. If not complied as directed, the amounts will carry 9% interest from the date of order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 20th day of December, 2021.
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Surrender certificate issued by Tata Motors Finance Ltd.
A2- Revenue Recovery Notice No.2018/1331/05
A3- Series-Payment Receipt Order No.1 issued by Chethippuzha Village Office(5nos.)
A4- Revenue Recovery Notice No.2018/4997/05
A5- Payment Receipt Order No.2 issued by Chethippuzha Village Office(4nos.)
A6- - Revenue Recovery Notice No.2019/3082/05
Exhibits marked from the side of opposite party
Nil
By Order
Senior Superintendent
