Thana, Mumbai 400 604.

2. TAT Motors Ltd.,

Branch/Dealer Office,

Kannur Branch, Ward No.1-789

Wib 15, 1^st floor,

Kannur 2.

        (Rep. by Adv.M.S.Unnikrishnan)                           Opposite party

O R D E R

Smt.K.P.Preethakumari, Member

          This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to issue No objection certificate to complainant for producing before RTA office to cancel the hypothecation endorsement in the RC of the truck having No.KL.13 Q.6096 and to pay `6,75,000 as compensation.

          The case of the complainant is that he has purchased a SFC 407 truck having No.KL13.Q.6096 from Sakthi Automoniles,Kannur on 31.05.06 and accordingly the complainant has to pay `582012.90  through 47 installments and the maturity date is 02.05.2010. The complainant handed over 47 cheques and all those were honoured on demand without delay and paid entire loan amount as stipulated in the loan–cum hypothecation agreement. After repayment on 10.05.2010 the complainant had approached the 2<sup>nd</sup> opposite party for getting NOC and other documents to produce before RTA to cancel the hypothecation endorsement in the RC. But the opposite party did not issued the same. So on 13.12.2010 the complainant issued lawyer notice. But the notice to 1<sup>st</sup> opposite party is returned ‘unserved’. The 2<sup>nd</sup> opposite party has not issued any reply, even though they have received the same. The complainant has purchased the truck for his business purpose for transporting goods to various shops at Kannur and Kasaragod. Since the opposite parties have not issued NOC the complainant couldn’t run the truck for his business purpose. So he has suffered `6,75,000 as hiring charge for hiring the vehicle. The complainant has suffering much mental agony and sufferings and also all these were caused due to the non-issuance of NOC by opposite parties due to their deficient service. Hence this complaint.

In pursuance to the notice issued by the Forum opposite parties appeared and filed their version.

          The opposite parties filed version contending that the complainant is not a consumer and there is no deficiency of service on the part of opposite parties. The complainant has purchased the vehicle for business purpose and he is not come with in the purview of consumer. The complainant is a chronic defaulter. The repayment schedule shows that the complainant failed to repay the loan within stipulated time and also defaulted in making full payment as agreed under the contract. The complainant has defaulted the payment of installment No.39 and 40. The complainant has made part payments for installments 4,6to 8, 12, 14 to 18, 20 to 24, 32 and 33 and 36, 38, 42, 43, 44, 46 and 47. Delayed payments for the installments 13,20,21,22,24, 25,34,37 and 41 and this resulted addition of the delayed payment charges and accrued over due charges along with remaining balance towards the installments. So the opposite party has sent its agents to the residence of the complainant for collection of the defaulted installments which was resulted in retainer and collection agency charges of `11,050 and `2,475 etc. The opposite parties have incurred `100 as legal expenses, `2000 as stamp recovery, service charge of `1000, stamping charges `1000 and bank charges of `185.64. Opposite party has spent `17,239 towards insurance provision. As on 25.10.11, opposite party has incurred `35,300 towards the expenses such as stamping charges, bank charges and other expenses. Towards this the opposite party has appropriated `31,100 and `4,200 is due from the complainant. So the complaint is liable to be   dismissed. The complainant is bound by the terms and conditions of loan agreement. The opposite arty is not bound to issue Non objection certificate when an amount of `24,884 is in balance and hence there is no latches on the part of opposite party in non-issuing of non-objection certificate. So there is no unfair trade practice on the part of opposite party. So the complaint is liable to be dismissed. The Forum has no jurisdiction to try the complaint. The complainant has raised issues which involves question of facts as well as law and required deposition of evidence and trials and can be  done only by civil court. So the complaint is liable to be dismissed.

The complainant has undertaken to pay periodical installment at the rate of `12,754.30 for 1<sup>st</sup> installments, `12,373 for installment No.2 to 46 and there after `12,453.30 per month for installment No.47.The complainant has also agreed to pay `97,006 as finance charge. So the complainant was liable to pay `582012 to the opposite parties subject to other terms and conditions. As per the receipt information maintained by opposite parties the complaint has paid a total sum of `665054 as on 25.02.11.So as on 25.10.11, there is an outstanding installment of `8958.59 and accrued opposite party charges of `12,572 and outstanding expenses of `4,200 totaling the amount of `24,834.So the complainant is liable to pay an outstanding amount of `24,834 as on 25.10.11.The opposite party is ready to issue non-objection certificate on payment of the above said amount. There is no deficiency of service or unfair trade practice on the part of opposite parties and hence the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

1.  Whether there is any deficiency of service on the side of

    opposite parties?

2.  Whether the complainant is entitled to get any relief as

     prayed in  the complaint?

          3.  Relief and cost.

                    The evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A13 and B1.

Issue Nos. 1 to 3

          The complainant’s case is that even though he had paid entire loan amount as stipulated in the loan cum hypothecation agreement, the opposite parties are not ready to issue Non objection certificate to the complainant for producing before RTA. In order to prove his case he was examined s PW1, and produced exhibits such as RC, copy, contract details, copy of lawyer notice, postal acknowledgement cards, returned lawyer notices, copy of SB ledger of SB count of complainant before Kannur District Co. operative Bank and accounts copies of the S.B account of complainant before the Cheruthazam Service co-operative bank, Koovapuram etc In order to disprove the case opposite party also produced the copy of loan agreement. But the opposite parties have not appeared before the Forum to substantiate their contention by giving oral as well as documentary evidence. The complainant contended that he has availed any hypothecation for purchasing SFC 407 Truck and paid the entire amount through 47 cheques within stipulated time. The complainant substantiated his case by producing oral as well as documentary evidence. But opposite parties contended that the complainant has to pay total arrears of `24,838.80 as on 25.10.11. But they have not turned up before the Forum to adduce oral as well as documentary evidence and to prove this contention. Thus itself is deficiency of service on the part of the opposite party. But the complainant produced account statement from various bank in which he is maintaining accounts and through which opposite parties have collected the amount. So the burden of proof is upon the opposite parties to substantiate the case. So we concluded that the complaint has paid the entire amount to opposite partitas and are playing unfair trick to grab money from the complainant illegally. So we are of the opinion that thee is deficiency of service on the art of opposite parties for which they are liable to issue  Non-objection certificate to the complainant along with `3000 as compensation and `2,000 as cost of this proceedings and the complainant is entitled to receive the same and passed orders accordingly.

                    In the result, the complaint is allowed directing the opposite parties to issue Non-objection certificate along with   `3,000 (Rupees Three thousand only) as compensating and  `2,000 (Rupees Two thousand only) as  cost of the  proceedings to the complaint within one month from the date of receipt of this order, failing which  the complainant can execute the order as per the provisions of consumer protection Act.  

                           Sd/-                     Sd/-                      

                     President                Member             APPENDIX

Exhibits for the complainant

A1. Copy of the RC

A2. Copy of the contract details

A3. Copy of the lawyer notice sent to OP

A4. Postal receipts

A5. Returned lawyer notice

A6. Statement of accounts maintained in South Indian Bank

A7. Tourist Taxi receipts

A8. Copy of S.B Ledger account maintained in Kannur

      Dist.co.opBank

A9 . Copy of SB transaction maintained by Cheruthazum SC Bank

A10 & 12. Statement of account from 23-02-08 to 23-02-09 and

        09- 07-09 to 14-05-2011

A12.  Temporary repayment schedule issued by OP

A13.  Receipt issued by OP

Exhibits for the opposite party:

B1.Copy of loan cum hypothecation cum guarantee agreement

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

Nil                                                       /forwarded by order/

                                                            Senior Superintendent

Consumer disputes Redressal Forum, Kannur.