KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

FIRST APPEAL 392/2011

JUDGMENT DATED: 26..11..2011

PRESENT

JUSTICE SRI.K.R.UDAYABHANU            : PRESIDENT

The Branch Manager,                                   : APPELLANT

Shriram Transport Finance Co.Ltd.,

Nullipady, Kasargod.

(By Adv.Narayan.R)

          Vs.

Ummer.B.,                                                   : RESPONDENT

S/o Late Mohammed,

Charkkadavu House,Berka,

Cherkala, Chengala.P.O.,

Kasargod.

(By Adv.C.Mohanan)

JUDGMENT

JUSTICE SRI.K.R.UDAYABHANU  : PRESIDENT

          The appellants are the opposite parties/Financier in CC.269/08 in the file of CDRF, Kasargode.  The appellants are under orders to refund a sum of Rs.1,74,700/- to the complainant together with a compensation of Rs.25000/- and cost of Rs.5000/- and at liberty to take back the vehicle as is where is condition.

          2. It is the case of the complainant that he availed a loan of Rs.1,42,000/- for the purchase of a Bajaj tempo three wheeler pickup. According to him the RC and other vehicular documents were taken by the opposite parties at the time of availing loan.  Signed blank cheque leaves, blank signed stamp paper and blank signed promissory note was also obtained.  RC book was not returned inspite of repeated requests.  It was told that the RC and the other vehicular documents are with the  refinancing bank..  As the motor vehicle department penalized the complainant for non possession of the vehicular documents he could not ply the vehicle.  The vehicle has been totally ruined as it is kept idle for the last 2 years.  The complainant has repaid a sum of Rs.1,85,000/-.  The complainant has sought for a sum of Rs.2,50,000/- towards financial loss and mental agony and for return of blank signed documents and for a loan termination letter and Rs.12000/- allegedly collected towards insurance deposit.

          3. The opposite party has filed version denying the allegations altogether.  It is pointed out that as per the loan agreement the matter has been referred to Arbitration.  Opposite party has also specifically denied the allegations that the RC book and the blank signed documents were obtained. It is also denied that any amount was collected for insurance premium.  It is alleged that the  complainant had defaulted in payment of the amount due as per the said agreement.

          4. The evidence adduced consisted of the testimony of  PW1, DW1 Exts.A1 to A4 and Exts.B1 to B3 and C1.

          5. It is pointed out by the counsel for the appellant that loan amount as per the agreement  is to be repaid in 48 installments  at the rate of Rs.4400/- and the last  installment at Rs.4568/-.  The complainant has not remitted the amounts in time.  A sum of Rs.33926/- is due towards over due charges and the same has been intimated vide Ext.A4 notice issued by the opposite parties.  The complainant himself has produced Ext.A4. It is pointed out that the opposite parties have produced Ext.B2 statement of accounts which would show  the dates on which the amounts were remitted by the complainant and that the same will substantiate the case of the opposite parties.  It is also pointed out that the complaint has been filed only on 4.12.08 although even according to the complainant vehicle has lying stationary for more than 2 years.  There is no explanation as to why the complainant did not proceed early.  It is also pointed out that as per Ext.C1 report of the Commissioner the odometer reading is 32133.  The direction of the Forum to refund the entire amount paid by the complainant towards loan cannot be justified under any circumstances.  It is also pointed out Ext.B1 to B3 produced by the opposite parties were not  considered at all.

          6. We find that Ext.A1 notice intimating that the matter will be referred to Arbitration is dated 20.6.09 which is subsequent to filing of the present complaint.  Hence Ext.B3 award of the arbitrator in which proceedings the complainant herein was ex-parte has no legal validity as such as it has been obtained during the pendency of the present proceedings.

          7. As pointed out by the counsel for the appellant there is no finding as to the claim of the opposite parties that the complainant has not remitted the amounts due as per the Ext.B1 loan agreement as per which a total sum of Rs.2,11,268/- has to be repaid.  The fact that the vehicle has run atleast 32133KMs is noted in Ext.C1 commission report was also not considered.  The delay to file the complaint has not been explained.  Ext.B2 statement of accounts was also not considered. Even according to the complainant he has repaid only Rs.1,85,000/-  In the circumstances the order of the Fourm is set aside.  The matter is remitted back to the Forum for fresh consideration and disposal vide a reasoned order.  Forum will hear both sides afresh and permit to adduce further evidence if necessary and dispose of the case on merits.  The appeal is allowed as above.  The matter is remitted back to the Forum.

          8. The matter stands posted before the Forum on 12.1.2012.

          Office will forward the LCR along with the copy of this order to the Forum urgently.

          JUSTICE K.R.UDAYABHANU         : PRESIDENT

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