By. Smt. Renimol Mathew, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an Order directing the opposite parties to return the vehicle No. KL 12 H 7191 Tata Nano to the complainant by receiving the due amount.

2. Brief of the complaint:- Complainant booked a Tata Nano CX 2012 BS car from Marina Motors India Private Limited, Kalpetta, as part of the expansion of his catering service for earning his livelihood. The finance for the purchase of the vehicle was availed from opposite party No.1. The sanctioned amount was Rs.1,62,000/- and as per the agreement it has to be remitted as 58 equal installments of Rs.3,650/- each an interest of Rs.47,550/- was added, the outstanding amount to be paid including the principle amount and interest is Rs.2,09,550/-. Complainant alleged that at the time of loan agreement several number of blank forms were got signed from the complainant and his wife Pushpakumari, apart from the complainant no one had signed in it as witness or from the part of the opposite party No.1. After purchasing the vehicle complainant had remitted many monthly installments, thereafter some loss occurred to his business and repayment of few installments become due, then all of a sudden opposite party No.1 repossessed the vehicle. While so an intimation dated 31.07.2014 was received from the 1^st opposite party stating that they have disposed off the vehicle on 17.06.2014. But the 1^st opposite party has not issued any prior notice of sale. Moreover, the complainant had received a Form 37 notice dated 14.10.2014 from the 2^nd opposite party intimating that the 1^st opposite party has requested to cancel the certificate of registration of the vehicle and also directed the complainant to surrender the certificate of registration of the vehicle. The complainant had made reply for both of the said intimations through letters stating his objection regarding the matter. But no response was received for the above mentioned letters. While so a demand notice dated 04.05.2015 was received from the 1^st opposite party stating that they have sold out the vehicle and the complainant and the guarantor have to pay a balance amount of Rs.86,312/- towards due. The said amount is not at all the liability of the complainant and the guarantor. Moreover a hearing notice dated 04.07.2015 was received from the 2^nd opposite party to hear the complainant and the 1^st opposite party for surrendering the certificate of registration for cancellation and issue of fresh registration certificate. The said hearing is posted to 15.07.2015 at 11.00 am. Hence filed this complaint alleging deficiency of service on the part of the opposite parties that last date of completion of loan installments is 25.12.2017 and the opposite parties committed unfair trade practice that they were illegally seized and sold out the vehicle before the expiry of the stipulated time as per the agreement. Hence filed this complaint.

3. On receipt of notice, opposite parties entered and version filed. In the version opposite party No.1 admits that the complainant has availed loan from them on 26.03.2013 the complainant and this opposite party entered in to an agreement with No.2523883 and the same was reduced in to writing. The vehicle involved in the above case and subject matter of the loan was purchased by the complainant solely for commercial purpose and hence the complainant is not a person coming under the category of 'consumer' as stipulated by the enactment and therefore the complainant prima facie is not allowable. This opposite party submits that the complainant has availed a loan from the 1^st opposite party for an amount of Rs.1,62,000/-. The repayment of this loan were fixed at 58 installments of which the first installment was for Rs.1,500/- and the remaining installments were fixed at Rs.3,650/- each As per loan agreement, the installments were to be paid on or before the 25^th day of every month commencing from 26.03.2013 onwards. The last date of installment was fixed at 25.12.2015. As per the stipulations of the loan agreement, if the loan repayment installment is not paid in time, same attracts additional finance charges for the delayed period and also provision is there for cheque return charges, in case of dishonor of cheques issued by the complainant to the first opposite party towards the due. Opposite party No.1 further submitted that it is totally incorrect to say that the installments of the repayment of loan were paid continuously by the complainant. The allegation to the effect that the first opposite party had repossessed the vehicle against the will of the complainant is totally false. It is the complainant who voluntarily surrendered the vehicle to the first opposite party stating that he was in financial stringency and with a request to sell the vehicle and to adjust the sale proceeds towards the vehicle loan debt. The complainant also ensured the first opposite party that he is ready to discharge the balance amount of debt after adjusting the sale proceeds of the vehicle. The allegation in complaint that the first opposite party had not given prior intimation of sale of the vehicle is emphatically wrong. The complainant were already given prior and post sale intimations of the vehicle by the first opposite party in writing and in time. More than this the first opposite party were following the correct prescribed procedure with regard to the entire loan transaction. The complainant is a chronic defaulter of the installments of repayment of the loan from the very beginning and there is no deficiency of service from the part of opposite party. Hence prayed to dismiss the complaint.

4. In the version, opposite party No.2 stated that an application has received in their office for the issue of fresh RC in respect of M/car KL 12 H 7191 from the Opposite Party No.1, financier, M/S Mahindra Finance & Mahindra Financiers Ltd, which is registered in the name of the complainant, Sri. Sasidharan PiIlai. S/o. Neelakanda Pillal, Puthanparambil house, Munderi, Kalpetta, Wayanad wef 26.03.2013 as the vehicle under hypothecation agreement. As per MV Act 88 under section 51/(5), if an application is submitted for fresh RC they have to follow the procedure for the issue of fresh RC. They have no connection with the HP company or not colluded with HP company with a bad intention and further stated that they are unnecessary party and prayed to dismiss the complaint.

5. Complainant filed proof affidavit and examined as PW1 and Ext.A1 to A14 documents were marked. Opposite party No.1 and 2 examined as OPW1 and OPW2 and Ext.B1 to B6 documents were marked to resist opposite party's case.

6. Heard the learned counsel for the complainant and opposite parties and perused the records.

6. On perusal of complaint, version and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

7. Point No.1:- Case in the complaint is that he availed a loan of Rs.2,09,550/- including interest for his Nano car from the opposite party No.1. The car was hypothecated with opposite party No.1 and as per the agreement the amount was to be repaid in 58 monthly installments of Rs.3,650/- each. When monthly installments become due opposite party seized the vehicle and sold out in auction without due notice. Now the opposite parties started legal action to change the ownership of the vehicle from the name of complainant. Opposite party admitted grant of loan and denied the forceful seizure of the vehicle. They stated that the complainant himself surrendered the vehicle due to financial stringency. Admittedly there was default in payment of installments. In the witness box complainant deposed that he had paid only 6 installments. As per Ext.B1 Account statement opposite party is entitled to get Rs.1,92,724/- as on 30.01.2016. On verification of Ext.B4(1) it is found that in consequence of default complainant surrendered the vehicle to opposite party and they duly informed the complainant to discharge the liability within 7 days on receipt of this notice, Otherwise they were constrained to sell the vehicle and appropriate the sale proceeds towards loan due. A returned postal cover and postal receipts were also produced and marked by opposite party No.1 to prove the service of notice along with Ext.B4(2), (3) and (4). Admittedly opposite party No.1 received the possession of the vehicle on 15.02.2014 then as per Ext.B2 pre-sale notice dated 18.03.2014 opposite party No.1 once again informed the complainant that they are decided to dispose off the vehicle in its “as is where is” condition. Thereafter as per Ext.B3 post-sale notice dated 31.07.2014, opposite party No.1 informed the complainant that the alleged vehicle was disposed off on 17.06.2014 and after adjusting the sale proceeds a sum of Rs.1,14,367/- is still due and payable by the complainant.

8. Opposite party No.1's counsel further argued that, where vehicle had been possesed on account of default in payment of installments and has been sold after due notice. Hence there is no deficiency of service on the part of financier. But complainant argued that they have not received pre-sale and post-sale notices. They have only received Ext.A12 final notice dated 04.05.2015 demanding Rs.82,312/-. Prior to that complainant send a letter dated 02.07.2014 informing his willingness to pay the complete loan dues as per Ext.A14. But perusal of Ext.B4(1) to (4) shows that on 30.03.2014 opposite party send registered notices to the complainant and guarantor requesting to repay the overdue amount and late charges accrued thereon within 7 days, Otherwise they were constrained to sell the vehicle and appropriate the sale proceeds towards the loan dues. But this Ext.B4 letter returned as “unclaimed” the registered cover produced by opposite party No.1 is marked as Ext.B4(4) and Postal Receipts were marked as Ext.B4(2) and (3). Complainant produced document Ext.A6 series payment receipts but in the witness box he admitted that he had paid only 6 installments. Admittedly opposite party No.1 repossessed the vehicle on 15.02.2014 complainant send notice to opposite party informing his willingness to clear the loan dues but prior to this on 07.06.2014 opposite party No.1 sold out the vehicle after complying the formalities. Then as per the request of opposite party No.1, opposite party No.2 send Form 37 notice dated 14.10.2014 (Ext.A8) to the complainant intimating that 1^st opposite party has requested to cancel the certificate of registration of the vehicle and directed the complainant to surrender the certificate of registration of the vehicle. Complainant objected this letter through Ext.A9 and filed this complaint.

9. On an overall evaluation of the pleadings and records we found that the disputed vehicle had been possessed on account of default in payment of installments and sold after due notices. In RP No.114 of 2015 M/s. Mahindra & Mahindra Financial Services V/s Aslam Sheikh and others reported in 2016 CPR 227 NC, Honorable National Commission decided that under HP agreement Financier is the real owner of vehicle and there cannot be any allegation against him for having possession of vehicle. In this case through Ext.B2, B3 and B4 series documents opposite party No.1 duly intimated the complainant about the sale proceedings. Admittedly opposite party No.1 got possession of the vehicle on 15.02.2014 thereafter send Ext.B4(5) notice on 03.03.2014, then send pre-sale notice on 18.03.2014 and post sale notice on 31.07.2014. But on 02.07.2014 only complainant send Ext.A14 letter to opposite party showing his willingness to remit the balance installments, within that period opposite party had sold out the vehicle on 07.06.2014 after complying all the formalities. From the evidences and records this Forum found that from the date of surrender/seizure of this vehicle and till the date of sale the complainant has not taken any steps to clear the dues. Regarding the challenge of contents of Ext.B6 loan agreement admittedly complainant and the guarantor signed in this Ext.B6. If the complainant has any dispute relating to the contents this is not the appropriate forum to decide such matters.

10. When HP company applies for a fresh RC in Form 36 u/s 51(5) of Motor Vehicles Act as per law opposite party No.2 send Form 37 notice to the registered owner. In response to that RC owner filed objection that not to transfer the RC from his name. Opposite party No.2 called upon the RC owner for hearing, the hearing was not materialized so far but filed this complaint. Hence there is no deficiency of service on the part of the opposite party No.2. What they have done is as per law as apart of their duty.

11. On going through the evidences and records we found that the disputed vehicle has already sold in auction hence the 1^st prayer in the complaint is infructous. Regarding the second prayer that opposite party No.1 demanded Rs.86,312/- as balance due amount after adjusting sale proceeds towards loan due through Ext.A12. Opposite party No.1 failed to give a clear the picture of accounts. In the post sale notice dated 31.07.2014 opposite party demanded Rs.1,14,367/-. Complainant filed this complainant against the notice dated 04.05.2015 received from the opposite party No.1 stating that they have sold out the vehicle and the complainant and guarantor have to pay a balance amount of Rs.86,312/- towards due. but we could not get a clear picture that how they arrived on that amount of Rs.86,312/- Hence in our view complainant is entitled to get waiver of a part of amount shown in the demand notice. The Point No.1 is found accordingly.

12. Point No.2:- Since the complainant is admittedly a defaulter, he is not entitled for cost and compensation.

In the result, the complaint is partly allowed and the opposite party No.1 is directed to waive half of the amount as per Ext.A12 (Rs.43,156/-) and Complainant is directed to pay balance amount of Rs.43,156/- to opposite party No.1 and give his consent to transfer the RC to the financier. No Order as to cost and compensation. This Order must be complied by both parties within 30 days from the date of receipt of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30^th day of May 2016.

Date of Filing:13.07.2015.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Sasidharan Pillai. Complainant.

Witness for the Opposite Parties:-

OPW1. Robin. T. S. Branch Manager, Mahindra Finance,

Sulthan Bathery, Wayanad.

OPW2. Sathyan. P. A. RTO, Wayanad.

Exhibits for the complainant:

A1. Copy of Sales Receipt. Dt:11.03.2013.

A2. Copy of Sales Receipt. Dt:18.03.2013.

A3. Copy of Finance Scheme.

A4. Copy of Registration Certificate.

A5. Copy of Certificate cum Policy Schedule.

A6(1). Copy of Receipt.

A6(2). Copy of Receipt.

A6(3). Copy of Receipt.

A6(4). Copy of Bank Pass book.

A7. Copy of Letter. Dt:31.07.2014.

A8. Copy of Form 37.

A9. Copy of Letter to RTO Wayanad. Dt:27.10.2014.

A10(Series). Postal Receipts(2 Nos).

A11. Copy of Acknowledgment Card.

A12. Copy of Letter. Dt:04.05.2015.

A13. Copy of Hearing Notice. Dt:04.07.2015.

A14. Copy of Letter. Dt:02.07.2014.

Exhibits for the opposite parties:-

B1. Copy of Statement of Account.

B2(1). Copy of Pre-sale Notice. Dt:18.03.2014.

B2(2). Postal Receipt.

B2(3). Postal Receipt.

B3(1). Copy of Pre-sale Notice. Dt:31.07.2014.

B3(2). Postal Receipt.

B3(3). Postal Receipt.

B4(1). Copy of Notice. Dt:03.01.2014.

B4(2). Postal Receipt.

B4(3). Postal Receipt.

B4(4). Returned Postal Cover.

B5. Authorization Letter. Dt:01.02.2016.

B6. Loan Agreement. Dt:26.03.2013.

Sd/-

PRESIDENT, CDRF, WAYANAD.

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