IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 14th day of August, 2020.
Filed on 23-11-2017
Present
- Sri.S.Santhosh Kumar BSc., LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.312/2017
between
Complainant:- Opposite party:-
Sri.Shaiju V P The Manager
S/o Ponnappan Cholamandalam Investment and
Veliyil Finance Co. Ltd.
Arthunkal P.O. 1st Floor Rathna Arcade
Cherthala, Alappuzha Ammankovil Street, Mullackal
(Party in person) Alappuzha
(By Adv.A.Supriya)
O R D E R
SMT.SHOLY P.R (MEMBER)
The complainant is a driver by profession and he had purchased a vehicle of model EICHER 1095 bearing Reg. No.KL-14-G-7432 by availing financial assistance from the opposite party by executing hypothecation agreement. The complainant surrendered the said vehicle before the opposite party on 23.11.2015 as he was not able to repay the loan instalments regularly. At the time of surrendering the vehicle he handed over all the available records to the opposite party and the same was with an undertaking that after conducting sale, the amount obtained will be credited to the loan account of the complainant. Thereafter it was intimated by the opposite party that an amount of Rs.55,000/- (Rupees fifty five thousand only) is due from the complainant to clear off the debt as well as for remitting tax due and clearing records. The complainant paid the said amount in two instalments and as far as he is concerned all the liabilities with respect to the vehicle came to an end. All the government transactions including the payment of tax regarding the vehicle is vested with the opposite party from the date of surrender. But there happened some deficiency on the part of opposite party by making arrears in payment of tax and not changing the ownership from the complainant regarding the vehicle. Thereafter the complainant received R.R notice from the revenue authorities. The tax arrears upto the date of surrender of the vehicle had already been cleared by the complainant. When the complainant received R.R. notice from the authorities, on 31.05.2017 a lawyer notice was issued at the instance of the complainant to the opposite party directing him to pay off the tax due and change the ownership of the vehicle from the complainant. But the opposite party did not heed to the notice or replied. Hence this complaint for releasing the complainant from R.R proceeding taken against him by directing the opposite party to calculate the arrears of tax of the vehicle surrendered to the opposite party and the said amount is to be paid to the govt., and also directing the opposite party to change the ownership of the vehicle from the complainant and for compensation for mental agony and cost of the proceedings.
2. The opposite party filed a detailed version stating the following averments:-
The complaint is not maintainable either in law or on facts. As per clause 29 of the loan cum hypothecation agreement No.XSHUAPY000001324116 dated 11.12.2014 executed between the complainant and the H.O of the opposite party, any dispute arise has to be referred to arbitration. The complainant approached this Forum with unclean hands. The complainant is not a consumer under the Consumer Protection Act since the vehicle financed by the opposite party is used for commercial purpose. Since the opposite party is only a branch office of the company, the complaint is bad for non-joinder of necessary party. The averment in paragraph 3,5, and 6 of the complaint is not fully correct. The complainant entered into hypothecation agreement with the head office of the opposite party for purchasing the Eicher vehicle and availed a vehicle loan of Rs.2.5 lakhs repaying it with interest in 36 equal monthly instalments of Rs.9,774/- from 01.01.2015 to 10.02.2017. The complainant became a chronic defaulter and expressed his inability for repayment and willingness to surrender the vehicle. Thus the complainant on 23.11.2015, voluntarily surrendered the vehicle to the opposite party. Thus complainant never turned up to take delivery of vehicle and never surrendered the original RC book after paying the pending tax on the vehicle with other vehicle documents. There was no other option to the H.O of the opposite party and proceeded with sale of the vehicle. As the opposite party filed an Arbitration case No.SD 1349/16 for the balance loan amount after adjusting the sale amount to complainant’s vehicle loan account the complainant approached for payment of account and the amount of Rs.55,000/- paid by him partly towards the payment of the balance loan amount, the same is credited to his vehicle loan account and the counter allegations are false and hence denied. The opposite party sold the vehicle in auction to one Mr.Basheer, S/o Ummer, Nedumpurath House, Market P.O., Muvattupuzha, Ernakulam on 30.11.2015 after completing necessary formalities for an amount of Rs.1,00,000/-. The complainant was informed the same and the vehicle is in possession of said Basheer. On 01.12.2015 said Basheer had executed a letter of indemnity undertaking to take all necessary steps to change the ownership and pay all taxes including motor vehicle taxes. But the complainant never co-operated with the RTO proceedings for change of ownership and pay the pending tax upto the date of surrender of vehicle. It was informed to the complainant about the sale of vehicle, the name of purchaser and amount received immediately after the sale. But the complainant had intentionally omitted to make the purchaser a party to the complaint, hence the complaint is bad for non-joinder of necessary party and hence liable to be dismissed. The complainant has already defaulted payment of tax at the time of surrendering the vehicle and the same was concealed from the opposite party. The opposite party is in no way answerable for any default committed by the complainant when the vehicle was in his possession. On 23.11.2015 the complainant has surrendered the vehicle with a surrender letter which was received by the opposite party on condition that he will pay the pending tax on the vehicle and will surrender the R.C book after updation of tax amount. The opposite party never received any amount from the complainant to pay the tax dues or any dues to be paid by the complainant. All the averments to the contrary are denied being false and full and final settlement was never arrived at the time of surrender of the vehicle. The opposite party is in no way answerable for the acts of the complainant and there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed. It is filed being an experimental one to escape from paying the balance loan amount due to the opposite party.
3. In the light of the above pleadings the points that arise for consideration are:-1. Whether the opposite party is liable for remitting the amount payable in Revenue Recovery proceedings initiated against the complainant for dues of vehicle tax?
- Whether the opposite party is liable to make change the R.C ownership regarding the vehicle?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party as alleged in the complaint?
- Whether the complainant is entitled to get compensation as claimed in the complaint?
- Reliefs and costs?
4. Evidence on the side of the complainant consists of oral evidence of Pw1 and
Ext.A1 to A3 documents. All are in series. Evidence on the side of opposite party consists of oral evidence of RW1 and Ext.B1 to B5 documents.
- The learned counsel for the complainant filed notes of arguments. Heard both sides.
- Point No. 1 to 4
For avoiding repetition of discussion of materials these 4 points are considered together. Admittedly the complainant availed a vehicle loan from the opposite party for purchasing Eicher 1095 bearing Reg.No.KL-14 G 7432. Ext.B2, the hypothecation agreement between the complainant and opposite party reveals the date of agreement is 11.12.2014. It also shows the due date for first instalment is 10.01.2015. Then the complainant surrendered the said vehicle to the opposite party due to his inability to pay the loan amount regularly. Thereafter the opposite party sold the vehicle by auction sale and obtained some amount towards the loan account. The balance amount collected by the opposite party in a settlement and thereby the complainant has paid a total amount of Rs.55,000/- by two instalments for closing the loan account with the opposite party as agreed by the opposite party which would show in Ext.A3 series. From the available document it is evident that the loan account regarding the vehicle was satisfied by both the parties. The only question has to be decided is regarding payment of vehicle tax and changing of ownership of the vehicle. In Ext.A1 series the date on which arrears fell due shown is 01.01.2015 ie, after the purchase of the vehicle. More over the said vehicle has been driving on road till 23.11.2015, the date of surrender. On this point we have a doubt that during these period whether the complainant was driving the vehicle on road without paying vehicle tax? The complainant admitted that the vehicle was a second hand one and if it is, he has a bounden duty to clear all the legal formalities regarding the vehicle including the vehicle tax etc. regarding the custody of original document of the vehicle both sides have created a smoke screen without dealing the real fact in the pleadings as well as on arguments. In Ext.A2 it is not specifically disclosed the entrustment of the document to the opposite party. The words in 7th line of that document started “R.C book .................\ÂIn-bn-«pv/ CÔ. But in cross examination of PW1 he categorically stated that the said documents are in the custody of opposite party from the date of loan onwards. The vehicle which was surrendered by the complainant on 23.11.2015, was in possession of the opposite party. Therefore, it is agreed that all the formalities regarding that vehicle should be cleared by the opposite party. At any circumstance the original documents were not given to the opposite party, then it is the bounden duty of the opposite party to clear the mistakes before selling the vehicle. Since the opposite party has sold the vehicle through auction without acquiring the original document of the said vehicle the complainant is not liable for the consequences regarding transfer of the vehicle. At the same time the complainant is liable for the liabilities regarding the vehicle before surrendering the same. In this circumstance we are of the opinion that the liability of the payment of vehicle tax is vested with the complainant till the date of surrendering the vehicle and that of after the surrender of vehicle is upon the opposite party.
As early stated since the custody of original documents are doubtful, the testimony of RW1 also could not rectify the same. On the same time it cannot be believed that a stranger purchasing vehicle without receiving the original documents will keep silent for the last 5 years from 30.11.2015. At this juncture the complainant is entitled to change the ownership of the said vehicle. An overall observation, even though there is deficiency in service on the part of opposite party the complainant is not entitled to claim compensation since the material before us is to show that complainant was required to pay as per Ext.A1 series, demand notice issued in relation to R.R proceedings initiated against him by the authority concerned. These points are answered accordingly.
Point No.5
In the result the complaint is partly allowed directing the opposite party to change the ownership regarding the vehicle having Reg.No. KL-14-G-7432. Considering the facts and circumstances of this complaint compensation and cost are disallowed as sought for in the complaint.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 14th day of August, 2020.
Sd/-Smt. Sholy P.R (Member) :
Sd/-Sri.S.Santhosh Kumar (President)
Appendix:-
Evidence of the complainant:-
PW1 - Shaiju V.P (Witness)
Ext.A1 Series - Demand notice dtd 22.02.2017
Ext.A2 Series - Surrender Letter dtd 23.11.2015
Ext.A3 Series - Letter dtd 17.05.2016
Evidence of the opposite parties:-
RW1 - Ajayan (Witness)
Ext.B1 - Power of attorney
Ext.B2 - Hypothecation agreement
Ext.B3 - Surrender letter
Ext.B4 - Letter of indemnity
Ext.B5 - Notice dtd 29.12.2015
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
