SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint seeking compensation and a direction to the opp.party to handover the RC book of the vehicle bearing Reg.No.02 –z 9714 to the complainant

          The averments in the complaint can be briefly summarized as follows:

          The complainant has purchased the vehicle Mahindra Champion three wheeler goods vehicle on 30.12.2007 through the approved dealer the second opp.party, who has also arranged loan to the vehicle through Centurian Bank of Punjab Ltd.  The registration formalities of the vehicle was also arranged by the 2^nd opp.party.   The 2nsd opp.party fraudulently handed over the RC book of the vehicle to the first opp.party bank.   The Centurion Bank of Punjab Ltd was subsequently  amalgamated with HDFC Bank.   The complainant is a consumer of the opp.parties.  Out of the loan amount the  complainant had remitted 13 instalment since the opp.parties are illegally detaining the RC Book of the vehicle, the complainant could not remit the road tax in respect of the vehicle.    The  vehicle tax  was paid only up to 31.12.2007.  In spite of several attempts the opp.party did not hand over the RC Book  with the result that the complainant could not operate the vehicle  from 1.1.2008.   The complainant is sustaining a loss of Rs. 4,500/- per month because of it.   Since the vehicle was not operated there is no income and the complainant could not remit the monthly instalments towards loan.  Even though there is loan arrangement  with the 1^st opp.party, the 1^st opp.party has no  manner of right to detain the RC book since the vehicle is hypothecated with them and the complainant has issued  cheques for the entire loan amount.   The opp.parties  have jointly colluded in detaining the RC book of the vehicle which is deficiency in service and unfair trade practice.  Hence the complaint.

          The first opp.party filed a version contending, interalia that the complaint is not maintainable either in law or on facts.   The complainant has availed a commercial vehicle loan from the Centurion Bank of Punjab Ltd on 30.12.2006.   The loan was availed for developing his  husk business and for  the purchase of a commercial vehicle for business purpose.     He is operating the vehicle using a hired driver.  Hence this Forum has no jurisdiction to entertain this complaint  The loan was availed by the complainant on accepting the above terms and conditions.    It is the duty of the complainant to pay the road tax in time  From March 1999 onwards the Kerala State Road Transport Department is collecting one time road tax for every vehicle at the time of registration itself, for a period of 15 years..  Hence the story narrated in para No.3 of the complaint is a  cooked up story,  and hence denied by this opp.party.   The complainant is a  chronic defaulter.  The averment that the complainant could not operate the vehicle  from 1.1.2008  is not correct.     The averment in the complaint  that the complainant is a driver and he has purchased the vehicle for his own purpose is false and hence denied.   The complainant is  a proprietor of a firm M/s. Sree Guru De-Fibaring Industries and has entered into a hypothecation agreement  in his capacity  as the proprietor of this firm is   dealing with coir industry and having a registration and having good turn over  of lakhs of rupees per year.   The averments in para 4 are false and hence denied.   The complainant has not sustained any loss as alleged.  The 1^st opp.party has every right to demand and collect the entire amount due towards the vehicle loan.  There is no deficiency in service on the part of the 1^st opp.party.  Hence the first opp.party prays to dismiss the complaint.

          The 2^nd opp.party filed a separate version also contending  that the complaint is not maintainable.   The complainant has purchased a  Mahindra Champion three wheeler goods vehicle worth Rs.1,75,990/-  from the 2^nd opp.party who is the dealer.   At the time of  purchase of the vehicle the complainant enquired  about the loan facility and the 2^nd opp.party has suggested the names of certain banks including Centurion Bank.   The complainant  has selected the Centurion bank.  The 2^nd opp.party has never arranged  any loan.  The 2^nd opp.party has no  connection  or tieup  with the first opp.party bank  for  arranging the loan as per the terms and conditions of the loan amount.     The RC book of the said vehicle was collected from the first opp.party’s institution by the officials of  the Centurion Bank at the instance of the complainant.   As per the terms of the loan agreement the original RC book was retained  by the bank till the  loan liabilities are  discharged.   The complainant has also not raised any objection for entrusting the RC book with the bank.   The 2^nd opp.party  is totally a stranger to the loan transaction  between the complainant and the first opp.party.   The 1^st opp.party is having the first charge over the vehicle as the same  is under  hypothecation with the first opp.party.  This opp.party has no knowledge about the payments of the instalments made by the complainant.   This opp.party believe that the complainant is a defaulter of the loan .  The complaint is bad for mis jointer of parties.  The averments in para 3 that  the 2^nd opp.party has fraudulently hand over the RC book of the vehicle to the bank is false.   This opp.party is also not aware of non remittance or otherwise of the road tax.   The complainant never approached this opp.party.  Unless the complainant has discharged his loan liability he is not  entitled to file this complaint .   This opp.party  is unable to hand over the RC book  as the same is not  his custody.   The averments that the complainant has sustained a loss and damages to the tune of Rs.4500/- per month towards income  from the vehicle is not correct.  The complainant himself has admitted that he is a defaulter of a loan.  There is no deficiency in service or unfair trade practice on the part of this opp.party.This opp.party  is not liable to pay any amount as compensation  to the complainant.  Hence this opp.party also prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1 is examined.  Ext. P1 to P4 are marked.

For the opp.party DW.1 is examined.   Ext. D1 is marked.

POINTS:

Admittedly the complainant has bought the vehicle bearing Reg.No.KL 2Z 9714 from the 2^nd opp.party who is the dealer.  The complainant has no case that the vehicle had any defect whatsoever.  But the case of the complainant is that the 2^nd opp.party who arranged loan to the vehicle handed over the RC book of the vehicle after registration  to the 1^st opp.party instead of handing over the same to the complainant which is deficiency in service and unfair trade practice.

          The contention of the 2^nd opp.party is that the dispute herein is not with regard to any defect to the vehicle but with regard to the registration of the vehicle and handing over of the RC book which will not constitute  a consumer dispute.  It is further argued that when a vehicle is purchased the dealer on behalf of the RC owner get the vehicle registered with the RTO concerned and the RTO after registration formalities forward the RC book to the registered owner directly under registered post and so  if at all there is any relationship between the complainant and opp.party 2 it is only an   agent- principal relationship which will not attract the provisions of Consumer Protection Act.  It is further argued by opp.party 2 that no charges are collected  by the  dealer from the RC owner for this purpose and so it will not attract Sec. 2 [1] [o] of Consumer Protection Act 1986.

          In para 3 page 2 of the chief affidavit of opp.party 2 it is  stated “ ÷ûcent;´È¢ð¤« 1­¡«  …Ä¢û ˆÈ¢ð¤¨Ð Ì¡œ›·¢¨ò ƒ©™¬¡ŠÌñ¤« ©ucirc;¼¡Ã¤ 2­¡«  …Ä¢û ˆÈ¢ð¢‎ ý ›¢¼¤« RC book      ó¡¹¢¨´¡Ù¤©œ¡ðĤ  from which it is obvious that the RC book after registration of the vehicle was in the possession of opp.party2 and  the same was handed over to opp.party 1 by opp.party 2.  If that be  so,  the burden is on opp.party 2 to establish  as to how  the R.C Book happened to be  in their possession which they failed to discharge DW.1 in cross examination would say that the statement in the affidavit that the RC book was handed over to the officials of opp.party 1 by them is not correct.   It is to be noted that in the version of opp.party 2  also such a statement is there [see para 4 page 2]  It is well settled that admitted facts need not be proved when opp.party 2 has admitted in the chief affidavit that opp.party 2 has handed over the R.C book to opp.party 1 the denial of DW.1 is of no significance as he has admitted that  he was not with opp.party 2 at the relevant period.  Such conduct of keeping the RC book by the dealer after  registration and handing over the same to strangers even if in the presence of the RC owner is unfair trade practice.

          The  hypothecation of the vehicle with opp.party 1 is admitted.   The contention of the complainant is that opp.party 1 is not  returning the RC book of the vehicle to him  with the result that  he is unable to remit the tax of the vehicle and operate the vehicle and earn income.   Though the complainant would claim that he has remitted 13 instalments towards the loan amount no material was produced to establish such payment.   The definite contention of the 1^st opp.party is that the complainant is a chronic defaulter and the non - production of materials evidencing repayment of loan  lent support to that contention.  It is to be noted that the payment of road tax is in arrears from 1.1.08 and the complainant became suddenly enthusiastic in making payment of road tax only when Ext.P1 notice demanding arrears of loan amount was received from opp.party 1.  There is no material to

show that the complainant demanded the RC book prior to Ext.P1 which shows the lacks of bonafides on his part.  Even at the time of evidence he has no case that he had made any further payment towards the loan amount.   So long as the vehicle is hypothecated to opp.party 1  and repayment is defaulted opp.party 1 has every right to deal with the hypothecated property and this Forum has no jurisdiction to interfere with the same and such action cannot be termal as deficiency in service.  For all that has been discussed above we hold that though there is no deficiency in service on the part of the opp.parties  the conduct of opp.party 2  in keeping the RC book after registration of vehicle and handing over the same to opp.party 1 who is the financier is unfair trade practice.  Point found accordingly.

          In the result the complaint is allowed in part, directing the 2^nd opp.party to pay the complainant Rs.3000/- as compensation for unfair trade practice.  In all other respects the complaint is dismissed.

Dated this the  17^th     day of September, 2010.

I N D E X

List of witnesses for the  complainant

PW.1. – D. Divakaran

List of documents for the complainant

P1. – Letter dt. 8.7.2008

P2. – Tax receipt

P3. – Notice dt. 14.10.2008

P4. – Reply notice dt. 27.10.2008

List of witnesses for the opp.parties

DW.1. – Kanakaraj

List of documents for the opp.parties

D1. – Authorization lett