By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to refund the excess amount he forced to pay than the agreed amount as per the terms of agreement dated 01.08.2008 and to get cost and compensation.

2. Brief of the complaint:- The complainant purchased a 2006 model Bus bearing registration No. KL-35-5383[Chassis No. FPE 603989, Engine No.PFH 426450, vide agreement dated 01.08.2008 for a total consideration of Rs.19,96,000/- from the Second opposite party. The 1^st opposite party has granted loan for the purchase of the above said vehicle while when the 2^nd opposite party purchased it. At the time of the purchase of the bus by the complainant, the vehicle has uncleared loan. The 2^nd opposite party has hypothecated the bus to 1^st opposite party. For the payment of the purchase consideration to the 2^nd opposite party the Complainant transferred his vehicle 2005 model Diesel Bajaj tempo traveler bearing registration No. KL-12.C.3085 [Chassis No. T 58017395. H 05, Engine No. D 1800 4411, to the second opposite party by estimating its value as Rs.5,25,000/- as per the same purchase agreement. The 2^nd opposite party assured that balance Loan amount of the Bus to be remitted to the 1^st opposite party is only Rs.12,96,000/- and no amount of installment of loan amount is pending as unpaid arrear till 1^st August 2008 ie till the date of the purchase agreement. The loan was not transferred from the name of the 2^nd opposite party to the name of the complainant. But as per the agreement the 2^nd opposite party agreed that the RC will be transferred from the name of the 2^nd opposite party to the name of the complainant after clearing the entire loan. As per the purchase agreement dated 01.08.2008 the complainant agreed to remit the future loan installments of Bus bearing registration No. KL-35-5383 from 1^st August 2008 onwards. As per the agreement the complainant remitted the loan installments of the Bus from 1^st August 2008 onwards with out default. In other words from 01.08.2008 onwards the 1^st opposite party received the loan installment amounts from the complainant. This complainant remitted the entire amount as per the payment chart.

3. In the 25^th May 2011 the 2^nd opposite party approached the complainant and demanded the R.C Book, tourist permit and tax token, by telling that he is ready to transfer the loan from his name to the complainant's name and also he will do all the arrangements, for that he requires those documents to send it to the 1^st opposite party. More over the 2^nd opposite party informed this complainant that, when he informs the complainant, the complainant should come to the 1^st opposite party's office to execute the hypothecation agreement with the 1^st opposite party. By believing the words of the 2^nd opposite party this complainant handed over the above said documents to the 2^nd opposite party. On 19^th August 2011, the 2^nd opposite party filed a complaint before the Honorable Chief Judicial Magistrate Court, Kalpetta as CMP.3929/11, against this complainant by alleging that this complainant made default in the payment of the loan installments and trying to sell the vehicle and there by cheated him. Based on that complaint the bus was ceased from the possession of the complainant and produced before the CJM Court, Kalpetta. Later on 28^th November 2011, the Honorable CJM Court released the Bus to the complainant, by finding the truth that complainant is the real owner of the vehicle and the complaint of the 2^nd opposite party is false.

4. The above said malicious prosecution of the 2^nd opposite party caused much loss sufferings to this complainant. The bus was ceased and kept in the AR police camp at Puthoorvayal for more than 3 moths. During that period if the complainant's bus has made the service it would bring a net income of Rs.50,000/- to this complainant. More over while the Bus was kept in the AR police camp Puthoorvayal, for a period of more than 3 months, in a position as exposed to rain and sun, caused much damage to the bus. For the repair of the vehicle the complaint will have to spent an amount of Rs 1,50,000/-. Later on 9^th December 2011 this complainant cleared the loan. While when this complainant approached 1^st opposite party to clear the loan, then only this complainant came to know that the 2^nd opposite party had made default in the payment of the loan installments of the bus which were due prior to the date of the sale agreement ie before 1^st August 2008, amounting to Rs.2,48,600/- and this complainant was forced to pay that amount and its interest also to clear the loan. In short, the 2^nd opposite party's assurance that the balance loan amount of the Bus to be remitted to the 1^st opposite party is only Rs.12,96,000/- and no loan installment amount is pending as arrears till 1^st August 2008 ie till the date of the purchase agreement was quiet wrong. As per the payment chart issued by the 1^st opposite party the 2^nd opposite party could have to remit Rs.5,24,450/-before 01.08.2008. But the 2^nd opposite party remitted only Rs.2,75,850/- and the arrear amount to be remitted by the 2^nd opposite party was Rs.2,48,600/-. To clear the arrear amount of loan installments prior to 01.08.2008 (before the date of purchase] this complainant was forced to remit Rs.3,27,000/-. The amount includes the arrear installment amount of Rs.2,48,600/- and Rs.78,400/- as interest and penal interest. Even though the vehicle was released and the entire loan amount was remitted by the complainant to the opposite party No.1, the opposite party No.2 refused to give the vehicle's R.C Book, tourist permit Clearance certificate and token to this complainant. This Complainant was solely depending up on the income derived from the vehicle for his lively-hood. Due to the refusal of the opposite parties to give the R.C Book, tourist permit, clearance certificate and tax token to this complainant it was become impossible to conduct services. Through a malicious prosecution, the 2^nd opposite party become successful in arriving the complainant as an accused in a cheating case and there by in tampering complainant's reputation in the society. More over the 2^nd opposite party hided his entire default and cheated this complainant and there by gained an unlawful gain by causing purposeful damages to this complainant. As per the sale agreement the 2^nd opposite party has a bounden duty and legal liability to perform his part of the contract but made the default to perform his part and above all he caused damages to the complainant through a malicious prosecution, so he is liable to compensate to the complainant.

5. First and second opposite parties have joint and several responsibility to hand over and to transfer the original RC book, Tax Token, Permit to the complainant, but even after repeated request the opposite parties refused to do so and it forced complainant to stop the service of the bus. It also caused much loss to the complainant. In short from the month of August 2011 on wards due to the ceasing of the bus and on a complaint by the 2^nd opposite party and there after due to the non return of the original RC Book, Tax token, Permit to the Complainant, this complainant was forced to stop the service of the bus. It caused a loss amounting to Rs.4,00,000/- to this complainant. All the losses caused to this complainant were only due to the deficiency in the service of the opposite parties, so the opposite parties are jointly and severally liable to compensate to the complainant . Cause of action of this complaint arose on 19^th August 2011, the date on which the 2^nd opposite party filed a complaint before the Honorable Chief Judicial Magistrate Court Kalpetta as CMP 3929/11, against this complainant by alleging that this complainant made default in the payment of the loan installments and trying to cheat him and also on 9^th December 2011, the date on which the complainant cleared the loan. And there after the opposite parties refused to hand over the RC Book, Tax token and permit to this complainant. All these were happened at the Kalpetta Village Vythiri Taluk, with in the jurisdiction of this Honorable Forum.

6. Hence prays for an Order directing the 2^nd opposite party to pay Rs.3,27,000/- which the complainant was forced to pay to the 1^st opposite party to clear the dues of loan installments and its interest and penal interest etc, which were pending prior to the date of the purchase agreement, with an interest of 12% per annum from the date o remittance of loan amount ie from 09.12.2011 to till the date of actual payment and also to pay compensation of Rs.1,50,000/- for the damages caused to the bus. And directing the opposite parties to pay a compensation of Rs.4,00,000/- to this complainant for the loss caused to him due to the stoppage of the service of the bus. And directing the opposite parties to pay the cost of this complaint to the complainant. Directing the opposite parties to return the original RC Book, Tax token and permit to this complainant. If those documents were lost form their possession to take steps to avail its duplicate, at their own cost. And directing the 2^nd opposite party to transfer the RC owner ship to the complainant. And directing the 1^st opposite party to issue clearance certificate of the loan to the complainant.

7. Notices were served to opposite parties and opposite party No.1 filed version stating that this Honorable Consumer Forum has no jurisdiction to entertain the matter since the agreement was entered between one Benny Philip and this opposite party that too it is a loan agreement by which a commercial vehicle has been purchased should not be taken as matter for adjudication before this forum. It is purely a civil dispute which can only be adjudicated by a civil court. Therefore the complainant who is not a party in the agreement is not entitled for any relief for want jurisdiction and maintainability. There is no relationship between the complainant and this opposite party at all. Since there is no privity of contract between the 1^st opposite party and the complainant herein there is no question of any breach of the agreement or deficiency of service as alleged or otherwise. Earlier a complaint was filed and the same was withdrawn and therefore the present complaint is not maintainable. The complaint is time barred and is liable to be dismissed. The complainant is still operating and earning substantial income from the vehicle on a commercial scale and thus the allegations are untrue and false. He has no similar complaint against this opposite party or against Mr. Benny Philip in the Criminal Court or else where.

8. This Honorable Forum has no authority to look into the complaint or to grant the reliefs sought in the complaint. It is submitted that the transaction is a commercial one with respect to a loan agreement and the vehicle bearing registration KL -35- 5383 Bus is a commercial vehicle. The Vehicle is operated on a commercial scale by the complaint by employing several workers and he is a Transport operator has no authority to institute a complaint of this nature that too for adjudicating a dispute with a third party with whom he had civil litigation. Therefore this Honorable Forum has to dismiss the complaint for want of territorial, pecuniary and legal jurisdiction. The jurisdiction aspect may be heard as a preliminary issue and an order may be passed accordingly at the interim stage. Apart from the above, the transaction is that of a debtor and creditor with a third party on the basis of a loan-cum hypothecation agreement and hence this Forum has no jurisdiction to entertain the matter at all. It is submitted that the original loan sanctioned and disbursed by the opposite party to Benny Philip was repayable along with interest and other charges within the statutory period in installments. The loanee failed and defaulted to pay the amount in installments and hence there was over due compensation accrued on the amount. There is no unfair trade practice as alleged or otherwise. There is no deficiency of service also. Hence no question arises to pay compensation as claimed. Complainant is not eking out his livelihood by operating the vehicle and not employed and depending on the income derived there from.

9. The original loanee is made a party in the complaint along with this opposite party. This opposite party is not aware of the alleged sale agreement between the complainant and the Benny Philip. This opposite party is not aware of the same. The said agreement was not with the consent, permission or knowledge of this opposite party at all. Thus the alleged terms and conditions in it are not binding to this opposite party at all. The original loanee Benny Philip was very well aware of the default in payment of the installments and the accumulation of ODC etc and he had filed a complaint before the police authorities in this regard. The present complainant who being the purchaser must have made enquires before purchasing the vehicle with the financier. He had not made any enquiry and the transfer of the vehicle took place without the knowledge of the financier that too disregarding the endorsement in the R.C. It is submitted that the attempt of the complainant now is to suppress the facts and to make undue enrichment by misusing the legal machinery. The complainant is not entitled for any of the reliefs as stated in the complaint or otherwise. All the contentions now raised are concocted to suit the needs of the complainant. Therefore the subject matter is out side the purview of this Honorable Forum. The vehicle was a commercial vehicle operated on a commercial scale by employing labourers and therefore this Forum has no authority to entertain the matter. The complainant has not approached this opposite party for any of the reliefs till date. As per the records Benny Philip is the R.C owner of the vehicle. He has not yet approached the 1st opposite party for the cancellation of the endorsement or for payment of the dues at all. More over the documents of the vehicle are all with the 2^nd respondent and there is no merit in demanding the certificates and other papers from this opposite party. The documents as desired in the petition are all in the custody of the R.C owner and thus there is no justification in demanding the same from the first opposite party. All the documents pertaining to the vehicle are supposed to be with the RC owner of the vehicle only. In tourist buses and other tourist vehicles the R.C Book, Permit, Tax token etc are to be kept with R.C owner of the vehicle and not with the financier at all. This opposite party is not having any of the documents with them. It must be with the R.C owner of the Bus and the complaint ought to have obtained the same from Benny Philip the R.C owner while making the alleged sale agreement. In fact this opposite party is not having any relationship with the complainant at all. This opposite party is not in custody or possession of the above documents and thus there is no legal or moral obligation to give those to the complainant. There is no foul play or illegal demand, unfair trade practice or deficiency of service on the part of this opposite party at all. The complainant is not entitled for any of the reliefs from this opposite party at all. This opposite party never assured the complainant to give any of these documents or any other documents and no amount has been received from him on these assurance. The alleged cause of action if any is against the 2^nd opposite party only and not against this 1^st opposite party at all. Mr. Benny Philip the loanee failed and defaulted to pay the amount as stipulated in the agreement in time and thus ODC and other charges accrued This fact must be known to the purchaser/complainant. He should have verified the documents and the consent of the financier should have been obtained before purchasing the vehicle. He has not yet made any request in this regard. The opposite party is not bound to compensate the complainant as stated in the complaint or otherwise. The complainant's claim for Rs.8,96,620/- by way of compensation/damage is unsustainable, false and denied by this opposite party There is no truth or logic in the claim for compensation. There is no basis of the compensation at all. The complainant is not entitled for any relief's as per the law.

10. Therefore it is submitted that this Opposite party is not liable to make any payment towards defaulted installments prior to the date of sale and its interest and penal interest as stated in the complaint, any compensation, interest of the remitted amount of Rs.3,27,000/- from 10.12.2011 to 10.06.2012 or otherwise as demanded in the complaint. Demand for damage caused to the bus while it was kept at the AR Camp etc. are unsustainable and this claim is not supported by any law or logic. No loss as claimed is happened to the complainant due to the stoppage of the bus. It was under due process of law the vehicle was seized and kept That too for violation of the law and for keeping the installment amount in arrears. The complainant has not suffered any loss as falsely estimated and claimed by the complainant The claim made in the complaint is baseless, false and untrue and denied by this opposite party. The complainant who is not a consumer as defined in the Consumer Protection Act has no authority to file a complaint of similar nature. The relationship of this opposite party and the complainant is not similar to that of a consumer and supplier or manufacturer and therefore this Forum has no jurisdiction to entertain the matter at all. Therefore the complaint is liable to be dismissed with compensatory cost as against the 1^st opposite party. Hence prayed to dismiss the complaint.

11. Opposite party No.2 also filed version, in the version opposite party No.2 stated that the complaint filed by the complainant is out side the jurisdiction of this Honorable Forum. The maintainability of the complaint is to be heard first for which a separate petition is being flied.There is no deficiency of service on the part of this opposite party and hence the above complaint is to be dismissed In lumine. Like wise the complainant here is not a consumer within the scope of the consumer protection Act, as the alleged transaction is with regard to a commercial vehicle. The complainant is a tour operator and he is operating the vehicle in dispute by employing several workers. Besides, the grievance alleged by the complainant against the opposite party it is only of a civil nature, and the relief is to approach any civil court and not this forum with this type of experimental complaint. It is respectfully submitted that the complainant has made this opposite party as a party to the complaint only with a malafide intention to draw the jurisdiction of this Honorable Forum. The allegations in the complaint is Intentionally put to assure the maintainability of the complaint before this Honorable Forum. The complainant raises such an allegation for the first time before this Honorable Forum, though he had filed numerous petitions before several other authorities. No such incident happened at any point of time and what is narrated is only a fanciful story at the imagination of the complainant and to mislead this Honorable Forum to the effect that this opposite party has caused for deficiency of service. It is true that there was an agreement between the complainant and the 2^nd opposite party with regard to the sale of the vehicle in dispute. But the loss if any as alleged in the complaint is caused only because of the breach of contract on the part of complainant himself. This opposite party has never made any deviation from the terms and conditions of the sale agreement. It is the complainant who has violated the terms of the sale agreement and thereafter cheated this opposite party and this opposite party has initiated criminal prosecution against the complainant which is pending before the Honorable CJM court, Kalpetta. This respondent has not been caused for any loss or damage to the complainant. This opposite party also denies the allegation that there were default to the tune of Rs.2,48,600/- prior to the date of sale agreement. The liability of the complainant has been Increased since he defaulted the repayment of the loan amount after the purchase of the vehicle by him. This opposite party specifically denies the averments of 19^th paragraph of the complainant. This opposite party has handed over the vehicle to the complainant with all its original documents and the complainant was in possession of the same. If the documents have been misplaced any where, this opposite party is not at all liable for the same.

12. The police has seized the vehicle on the complaint of this opposite party since this opposite party being cheated by the complainant. Besides the offense of cheating, the complainant has also forged the signature of this opposite party in R.T. Office to obtain stoppage to the vehicle. The allegation that the complainant was forced to stop the service of the bus due to the refusal of original R.C., Tax token, permit etc. by the opposite party is also not true. In fact the complainant has managed to obtain stoppage for the vehicle from the R.T. Office by forging the signature of this opposite party and that too with a malafide intention to conceal the vehicle from the view of this opposite party and the finance company. Whatever may be the monetary losses incurred by the complainant only because of his own default and he is blaming this opposite party for the same without any basis. It is further submits that the nature of the transaction alleged in the complaint Is purely civil nature and the remedy available to the complainant is to approach the civil court and there is no cause of action as alleged in the complainant to entertain the jurisdiction of this Honorable Forum. The complainant already filed a petition before the Honorable CJM court Kalpetta u/s 452 (2) of CRPC for the delivery of original R. C. Book, Tax Token, Tourist Permit of the vehicle in dispute and the petition is pending before the Honorable CJM court, Kalpetta. Further the complainant has already obtained,new permit for the vehicle and is taking steps for the issuance of duplicate R.C. from the R.T. Office. The complainant who has approached this Honorable Forum with unclean hands is not entitled for any favorable order from this Honorable Forum. The attempt of the complainant is to pressurize this complainant to comply with the illegal demands of the complainant. This opposite party is not liable to give any remedy to the complainant nor the complainant is entitled to get any remedy from this opposite party as prayed in the complaint. Hence prayed to dismiss the complaint.

13. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 documents are marked. Ext.A1 is the Agreement executed between complainant and opposite party No.2, wherein it agreed that the remaining installments of the loan of the bus bearing No. KL 35 5383, Rs.12,96,000/- is to be paid by the complainant and till date all installments were cleared by the opposite party No.2. Ext.A2 is the Account Register kept by the complainant and opposite party No.2. It is not considered since there is no condition in the agreement to that effect. Ext.A3 is the Order of the CJM Kalpetta in CMP 3929/11 and CMP 6052/11 common Order. Wherein it is ordered that the complainant herein ordered to execute a bond for Rs.16 lakhs with solvant surety and also order to deposit the admitted outstanding dues of Rs.4,32,000/- to the financier within 10 days and also directed to produce the vehicle before the court on call. Ext.A4 is the proceedings of the R.T.O which shows that the permit renewal application is rejected since proper formalities were not complied by both parties. Ext.A5 is the same as Ext.A4.

14. From the side of opposite party No.1, No oral evidence adduced. Opposite party No.2 filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.X1 series 12 in numbers marked and Ext.B1 and B2 is also marked. Ext.X1 series are the office file kept by the Regional Transport office pertaining to the disputed vehicle. Ext.B1 is the copy of petition in CMP 6052/11 filed in the CJM Court Kalpetta and CMP 3929/11 in Kpta Cr595/11. Ext.B2 is the same as Ext.A3. Complainant also produced the repayment chart and opposite party No.2 has also produced 15 receipts for Rs.5,57,250/-, which is remitted by him.

15. On considering the complaint, versions, documents and depositions we raised the following issues for consideration:-

1. Whether there is any default for payment as per chart from the side of

opposite party No.2 till 01.08.2008 which is the agreement date.

2. Whether there is any deficiency of service or unfair trade practice from the

side of opposite party No.1 and 2?.

3. Relief and Cost.

16. Point No.1:- In complaint, complainant stated that the opposite party No.2 ought to have paid Rs.5,24,450/- to the opposite party No.1 within 01.08.2008. The receipts produced by the opposite party No.2 comparing with the chart, it clearly shows that the entire installments up to 01.08.2008 is remitted by the opposite party No.2 to the opposite party No.1. The Ext.A3 Judgment by the Honorable CJM, Kalpetta is also shows that the complainant defaulted repayments to the tune of Rs.4,32,000/- as on date and the remaining installments also pending. This resulted in Police crime and CMP before CJM Kalpetta. The documents and receipts were produced by the complainant will not show the future installments were made in time as per Ext.A1 Agreement. The cause of action arose in this complaint is the allegation that the opposite party No.2 has not complied the term and condition of the Ext.A1 Agreement. We perused the Agreement and found that as per the chart given by the opposite party No.1, till 01.08.2008, ie the installment till 29.07.2008 is to be paid by the opposite party No.2 ie 17x30850=5,24,450/-. The receipts produced by the opposite party No.2 shows that the opposite party No.2 has remitted Rs.5,57,250/- to the opposite party No.1. Hence we are in the opinion that there is no deficiency of service from the side of opposite party No.2 and we found that opposite party No.2 has remitted all the installments to the opposite party No.1 till 01.08.2008 as per the Ext.A1 Agreement, The Point No.1 is found accordingly.

17. Point No.2:- Since the Point No.1 is found in favour of opposite party No.2 there is no deficiency of service from the side of opposite parties. Hence the Point No.2 is found accordingly.

18. Point No.3:- Since the Point No.1 and 2 are found in favour of opposite party No.1 and 2, No Order as to cost and compensation.

In the result, the complaint is dismissed.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31^st day of July 2015.

Date of Filing:10.07.2012.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

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PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Joseph Pinto. Complainant.

Witness for the Opposite Parties:-

OPW1. Benny Philip. Agriculture.

Exhibits for the complainant:

A1. Copy of Agreement.

A2. Account Register.

A3. Copy of Order of CJM, Kalpetta.

A4. Proceedings of RTO. Dt:15.03.2013.

A5. Proceedings of RTO. Dt:15.03.2013.

X1 Series (1) to (12). Office File produced by RTO, Wayanad.

Exhibits for the opposite parties:-

B1. Copy of Petition in CJM Kalpetta.

B2. Copy of Order of CJM Kalpetta. Dt:28.11.2011.

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PRESIDENT, CDRF, WAYANAD.

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