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 tax amount and fine which he forced to pay even after surrender the vehicle before the opposite party and to pay cost and compensation.
2. Brief of the complaint:- The complainant was the registered owner of bajaj goods autoriksha bearing registration No. KL 12 C 9739. The same was purchased from Opposite party No.2 and there was loan transaction with opposite party No.1. While so the entire loan transaction was closed and as matter of settlement the complainant surrendered the vehicle to opposite party No.1 from the office of Opposite party No.2 on 16.06.2008. At the time of surrender the complainant had given all necessary documents for the transfer of ownership of the vehicle. At the time of above said surrender both opposite parties assured the complainant that the vehicle will be sold by them at the earliest to any intending purchaser at their risk. After the said surrender it is the duty of the opposite parties to pay the tax and other things concerned with the vehicle. While so the complainant received a show cause notice from the Nilambur Police, stating that the above said vehicle is taken custody by the said police for the theft of sand and a crime was registered as Crime No.472/2015 u/ss 379 IPC ,20 r/w 23 of KPRB &RRS Act. The complainant was compelled to appear before the Nilambur Police three times for questioning for the illegal acts done by the opposite party No.1 and its hench men. Facts being so subsequently the complainant received notices in the month of November 2015 and notice dated 05.12.2015 from the Tahsildar, Ambalavayal for non-payment of tax regarding the vehicle and the complainant was compelled to pay the amount of tax total Rs.9,000/- by two times. As a result of the above said acts the complainant suffered huge mental agony and loss due to the non-transfer of ownership of the vehicle by the opposite parties. Now the vehicle is in the custody of Nilambur police in connection with the above said crime. The cause of action was for the complaint was arose on 10.08.2015,11.08.2015,12.08.2015 when the complainant received the show cause from the Nilambur police and appeared for questioning, on 05.12.2015 when demand notice from Tahsildar is received and on 14.12.2015 when the complainant paid tax amount at Padinharathara within the jurisdiction of this Hon'ble Forum. The acts of opposite parties are deficiency in service and it further amounts to unscrupulous exploitation of a consumer and unfair trade practice. opposite parties are liable to pay compensation of Rs.50,000/- towards the loss and damage caused to the complainant . It is therefore humbly prayed that Hon'ble Forum may be pleased to pass an order directing the Opposite parties to pay all the taxes and other payments relating to vehicle No. KL-12 C 9739 from the date of surrender of the said vehicle and to pay to the complainant an amount of Rs.9,000/- paid by the complainant with interest at the rate of 12% per annum and to pay to the complainant Rs.50,000/- as compensation.
3. Notices were served to opposite parties and they entered appearance and filed version. In the version, Opposite party No.1 stated that it is admitted fact by the complainant that due to default in repayment of loan installments the subject vehicle was surrendered by the complainant with the opposite party with an undertaking that the complainant will approach back for taking back the vehicle on closure of the loan and in failure consented for sale and also agreed to remit loss on sale if any. As per Annexure A the loan vehicle was surrendered on 16.06.2008 hence cause of action if any should be framed from the date of surrender and not from the date of alleged notice received from Tahsildar, Revenue Recovery, Taluk office, Ambalavayal dated 05.12.2015 which is not part of the loan agreement No.449073409 or any agreement between the opposite party and the complainant where alleged deficiency of service or unfair trade practice can arose hence the claim of the complainant is time barred, out of limitation period and does not satisfy to be heard and also does not hold any cause of action and may be dismissed. It is an admitted fact that the complainant is defaulter to the said loan hence a defaulter should not be termed as a consumer. The Hon'ble Supreme Court itself has laid down a law “a defaulter cannot be termed as a consumer as defined under the consumer Protection Act” as such a defaulter cannot maintain a complaint alleging deficiency of service on the financier thus this complainant has not approached this Honorable Forum with clean hands against this opposite party and this complainant deserve to be dismiss on this ground itself against this opposite party. This complainant is a debtor of the opposite party Bajaj Finance Limited as per clause 15 of the agreement as Annexure B and thus does not fall under the category of consumer as the relation of Debtor and Creditor applies here in between complainant and opposite party. Hence the provisions of Consumer Protection Act does not apply. This opposite party further submits in case 2006(3) CLT page 330 titled as Ram Deshlahara Vs Magma Leasing Limited, the Hon'ble National Commission was pleased to hold in Para 3 “More over under a hire purchase transaction the financier does not render any service within the meaning of Consumer Protection Act and the petitioner is, thus, not consumer. This opposite party has acted only against the terms and conditions of the said loan agreement executed and signed by this complainant with this opposite party hence this complainant has extended its proper service. It is a binding principal of law laid down in “Bharathi Knitting Co Vs DHL Worldwide Express Courier reported in (1996) 4SCC 704), wherein it has been held that the Forums and Commission are not entitled to modify the terms of the agreement, which had been arrived at between the parties and when there is an acute dispute relating to facts, the Forum and Commission ought not have gone behind the terms of the Agreement and should have instead referred the parties to the Civil Court. The reference to this effect has also been made in a case titled Patel Roadways Ltd. Vs. Birla Yarmaha Ltd vide Appeal (Civil) 9071 of 1996 in Hon'ble Supreme Court of India. Hence prayed to dismiss the complaint.
4. In the version, opposite party No.2 stated that the above complaint is filed on experimental basis without any merit and not maintainable either in law or on facts and liable to be dismissed in limine. This Opposite party denied the entire averment in the complaint except those that are specifically admitted hereunder. The complaint has to prove the averment in paragraph No.1 and this opposite party admits that the vehicle shown in the complaint sold by Opposite party, but rest of the allegations in 2nd paragraph that are the surrendering of vehicle, settlement of the loan transaction and show cause notice of complaint, crime No.472/2015 and subsequent events averred are not known to this opposite party, hence it is denied. The averment in 4th paragraph of complainant regarding notice of Tahsildar, Ambalavalyal, payment of tax, custody of vehicle by police are not known to this opposite party and there is no cause action against this opposite party. There is no deficiency of service or unfair trade practice on the part of this Opposite Party and this opposite party is not liable for the relief sought in the complaint. The documents submitted with the complaint are not known to this opposite party and also not binding to this opposite party. This Opposite Party is an unnecessary party in the proceedings and the complaint is bad for mis-jointer of parties.
5. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A7 documents were marked. Ext.A1 is the Acknowledgment Receipt issued by the opposite party to the complainant ie the copy of surrender letter dated 16.06.2008. Ext.A2 is the Receipt for the payment of Tax, under RR proceedings for Rs.6,660/- dated 14.12.2015. Ext.A3 is the Revenue Recovery notice dated Nil for Rs.6,200 +PNF etc. Ext.A4 is the Certificate issued by the Sub Inspector of Police, Nilambur stating that the above said vehicle is under his custody under a Crime 472/2015 u/s 379 IPC, 20 r/w 23 of KPRB and RRS Ad. Ext.A5 is the Memo issued by the RTO to the complainant to pay the tax arrears from 01.07.2009 to 30.06.2011. Ext.A6 is the Receipt for Rs.2,690/- which is collected under RR proceedings. Ext.A7 is the RR Notice issued by the Tahasildar RR Vythiri Taluk.
6. Opposite party No.1 also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 and B2 documents were marked. Ext.B1 is the copy of Loan Agreement. Ext.B2 is the copy of surrender letter which shows that the disputed vehicle is surrendered before the opposite party No.1 by the complainant on 16.06.2008 and opposite party No.1 has accepted the vehicle also. Opposite party No.2 also filed proof affidavit and he is examined as OPW2 and all evidence closed.
7. On considering the complaint, version, documents and evidences, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service or unfair trade practice from the part
of opposite parties?
2. Relief and Cost.
8. Point No.1:- As per Ext.A1 and B2 the complainant surrendered the vehicle to the opposite party on 16.08.2008 and the opposite party No.1 has acknowledged also. In the version also opposite party No.1 admitted the surrender and further stated that “It is an admitted fact by the complainant that due to default in repayment of loan installments the subject vehicle was surrendered by the complainant with the opposite party No.1 with an undertaking that the complainant will approach back for taking back the vehicle on closure of the loan and in failure consented for sale and also agreed to remit loss on sale if any. This means if the complainant did not come back for taking back the vehicle the complainant agreed for the sale of the vehicle by the opposite party No.1 and also agreed to pay if any loss on sale thereafter”. OPW1 deposed before the Forum that if a vehicle is surrendered before the company, it will be in company's custody, till the customer taken back the vehicle. There is no evidence and documents prove that the vehicle is taken back by the complainant. If it is handed over to somebody there should be an agreement and some proceedings are also to be followed. In this case nothing is produced by the opposite party to show the transfer or sale of the vehicle. This means, the opposite party has consented to use the vehicle by somebody.
9. The unauthorized use of a surrendered vehicle without changing the RC from the earlier owner and not taken any steps to auction the vehicle and putting all the consequential damage and burden of paying tax etc to the earlier owner is a clear case of unfair trade practice and deficiency of service. The opposite party No.1 can very well return back the vehicle to the complainant if he clears the dues and if it is not cleared the opposite party can sell the vehicle with proper procedure and after sale if any loss, it can be realized from the complainant.
10. Here it seems that the vehicle was used by somebody without an authenticated document and without paying the road taxes and seen used for unlawful activities and it was seized by the Nilambur Police in Crime No.472/2015 u/s379 IPC, 20 r/w 23 of KPRB and RRS Act and it may cause great and unlimited losses to the RC owner.
11. So we found that an unauthorized use of a surrendered vehicle is a clear case of unfair trade practice and deficiency of service from the side of opposite party No.1 and they are responsible for all the losses and damages consequent to that. Hence the Point No.1 is found accordingly.
12. Point No.2:- Since the Point No.1 is found against the opposite party No.1 he is liable to bear all the liabilities arising out of using of the vehicle after the date of surrender. Hence the Point No.2 is found accordingly.
In the result, the complaint is partly allowed and the opposite party No.1 is directed to pay Rs.9,000/- (Rupees Nine Thousand) with 12% interest from 14.12.2015 and also directed to pay Rs.3,000/- (Rupees Three Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings to the complainant and also directed to pay arrears of tax related to the above vehicle if any thereafter, within one month from the date of receipt of this Order. Failing which which the complainant is entitled for an interest at the rate of 15% per annum for the whole amount till realization.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31st day of August 2016.
Date of Filing: 28.12.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Baiju. Complainant.
Witness for the Opposite Parties:-
OPW1. Babu Thomas. Legal Officer, Bajaj Finance, West Hill,
Kozhikode.
OPW2. Joseph. K. J. Personal Administrate Manager, KVR Motors,
Calicut and Wayanad.
Exhibits for the complainant:
A1. Copy of Acknowledgment Receipt. Dt:16.06.2008.
A2. Copy of Receipt of Tax. Dt:14.12.2015.
A3. Copy of Demand Notice.
A4. Copy of Certificate.
A5. Memo. Dt:11.09.2010.
A6. Receipt. Dt:27.10.2012.
A7. Demand Notice. Dt:10.10.2012.
Exhibits for the opposite parties:-
B1. Copy of Terms and Conditions Governing Agreement
with Bajaj Auto Finance Limited.
B2. Copy of Surrender Letter. Dt:16.06.2008.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
