DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 31^st day of May, 2023

Present : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                

             : Sri.Krishnankutty N.K., Member           Date of filing: 10/12/2021                             

     CC/226/2021

Vijayan.R

9/28, Vakkinichalla

Kuttipallam, Thekkedesam

Palakkad – 678 553                                                        -    Complainant

(By Adv. K.Sivaprasad)

V/s

1. The Manager

   Sakthi Finance Ltd.

   12/872, 1^st Floor, Kay Central

   Chandra Nagar, Palakkad

2. The Managing Director

   Sakthi Finance Ltd.

Regd. 62, Dr. Nanjappa Road

   P.B.3745, Coimbatore - 641 018                                      -  Opposite parties

   (1^st & 2^nd opposite parties by Adv. Viju.K.Raphel)

O R D E R 

By Sri.Krishnankutty.N.K., Member

1.  Pleadings of the complainant in brief.        

      The complainant purchased a 2^nd hand All India permit lorry availing finance to the tune of Rs. 5,50,000/- from the opposite party company (herein after referred as opposite party).  The allegation of the complainant is that since the opposite party failed to transfer the RC book and other related documents in the name of the complainant, he could not ply the vehicle for his business related activities resulting in financial loss.  Hence he filed this complaint seeking a total relief of Rs. 10,00,000/- towards loss of income and other related sufferings.

2.   Notices were issued to the opposite parties.  They entered appearance and filed their joint version.  Their contentions are as follows

1. Though the opposite parties have financed the complainant for the purchase of vehicle, the responsibility of getting the RC book and other records transferred in the name of the complainant lies with the complainant as per the agreement executed by the complainant while availing the finance.
2. The complainant had transferred the possession of the vehicle to a third party without the knowledge of opposite party financier.
3. The vehicle involved in the complaint is a goods career used for Commercial activities of the complainant and hence this complaint will not come under the purview of Consumer Protection Act 2019.  Further, as per the arbitration clause in the loan agreement, this Commission has no jurisdiction to entertain this case.
4. The complainant has not repaid the loan as per the agreed terms and hence the opposite party is going to nominate a sole arbitrator for recovery of the dues as provided in the agreement executed by the complainant.

3.   Base on the pleadings of the complainant and opposite party, following are the issues involved

1. Whether this Commission has jurisdiction to entertain the complaint in view of the clause in Hire Purchase Agreement?
2. Whether the complainant is a “Consumer” as the subject vehicle is used for commercial purpose as alleged by opposite parties?
3. Whether the opposite parties are responsible for effecting transfer of ownership and completion of RTO formalities in the name of the complainant?
4. Whether there is any deficiency in service/unfair trade practice on the part of opposite parties?
5. Whether the complainant is entitled to the reliefs claimed?
6. Reliefs as to cost and compensation.

4.   Since the complainant failed to file proof affidavit inspite of several opportunities given by this Commission, the evidence of the complainant was closed.  The proof affidavit filed subsequently by the complainant was rejected as it was filed after closing the evidence.  The complainant filed IA 101/23 for reopening of evidence, which was allowed on cost.  As cost was not paid as ordered, the evidence of complainant was closed.  The opposite party filed proof affidavit and marked Ext. B1 to B9 as evidence.  All these were objected on the ground that they were photocopies.  However there was no allegation that they are forged/fabricated.  Since this Commission is not bound to follow Indian Evidence Act, the said documents are taken in evidence.          

5.  Issue 1

      Though the loan agreement contain the arbitration clause stating that all the disputes are to be referred to Arbitration Tribunal, Coimbatore, this Commission is in Order in examining any deficiency in service/unfair trade practice on the part of opposite parties as provided in Section 100 of Consumer Protection Act 2019, which clearly say “The provision of this Act shall be in addition to and not in derogation of the provision of any other Law for the time being in force”.  Hence the decision in this issue goes in favour of the complainant.             

6.  Issue 2 

      The kind of transport activity undertaken by the complainant is for eking out a livelihood.  Opposite party has also failed to prove that the activity is of such a huge proportion that the ambit of Consumer Protection Act will not extent to the facts and circumstances of this case.  Therefore the activities of the complainant will not come under the purview of “Commercial Activity” as defined in the Consumer Protection Act, 2019.  Hence this Commission is having jurisdiction to decide this complaint.

7.  Issues 3, 4 & 5

      The main allegation of the complainant is about delay in the transfer of the Registration Certificate and other documents in the name of the complainant by the opposite party.  Ext. B3 is the financing agreement entered into between the complainant and the opposite party.  Para 7 of the Ext. B3 adduced as evidence by the opposite parties read as follows

      “The seller and intending hirer agree to arrange for the transfer of ownership in the name of the intending hirer with Hire purchase endorsement of the “Company” made by the concerned registering authority in the original Registration Certificate pertaining to the schedule mentioned vehicle on the execution of this document.  Both seller and intending hirer shall produce the vehicle for inspection by the company within 3 days from the date of transfer of ownership”.

          As per Para 9 “In case if the transfer of ownership in respect of the schedule mentioned vehicle is not completed within 15 clear days from the date of dismissal of sale consideration referred supra, then the company is having absolute right to rescind the contract…..”.

          From the above, it is amply clear that the responsibility of transferring the Registration Certificate and other documents is cast on the complainant and not on the opposite parties.  Hence there is no deficiency in service on the part of opposite parties.   

8.   In the result, the complaint is dismissed and the complainant is not entitled for any reliefs.   

9.   In the facts and circumstances in the case the parties are directed to suffer their respective costs.

      Pronounced in open court on this the 31^st day of May, 2023.

Sd/-

                                                                                      Vinay Menon V

                                          President

Sd/-

     Vidya.A

                   Member   

                                                                                      Sd/-

                                                                         Krishnankutty N.K.

                                                                                 Member

APPENDIX

Exhibits marked on the side of the complainant: Nil

Exhibits marked on the side of the opposite party:

Ext. B1: Sale agreement dated 22/09/2018.

Ext. B2: Hire purchase agreement dated 31/10/2018.

Ext. B3: Financing agreement dated 31/10/2018.

Ext. B4: Notice dated 10/04/2021 addressed to the complainant and

             guarantors to the loan.

Ext. B5: Post Acknowledgement signed by the complainant.

Ext. B6: Notice dated 21/12/2021 addressed to the complainant and

              guarantors.

Ext. B7: Postal Acknowledgement signed by the complainant.

Ext. B8: Notice dated 28/12/2021 issued to the complainant and guarantors

              by the opposite parties.

Ext. B9: Loan A/c statement of the complainant from 31/10/2018 to

              21/12/2021.

Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party: Nil

Court Witness: Nil

Cost:  Nil

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.