Kerala

StateCommission

A/15/416

THE BRANCH MANAGER SHRIRAM TRANSPORT FINANCE C OLTD - Complainant(s)

Versus

UMMER B - Opp.Party(s)

NARAYAN R

24 Jul 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 416/15

JUDGMENT DATED : 24.07.2019

 

(Appeal filed against the order in CC.No.269/2008

of the Consumer Disputes Redressal Forum, Kasaragod)

PRESENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

SRI.RANJIT.R                          : MEMBER

SMT.BEENA KUMARI.A           : MEMBER

 

APPELLANT/OPPOSITE PARTY

        The Branch Manager, Shriram Transport Finance Co.Ltd,

        Nullipady, Kasargod

                          

                           (BY Adv.Sri.Narayan.R)

                                                                        VS

RESPONDENT / COMPLAINANT

Ummer.B, S/o.Late Muhammed, Charkkadavu House, Berka, Cherkala, Chengala.P.O, Kasargod – 671 541

               

JUDGMENT

SRI.T.S.P.MOOSATH                :JUDICIAL MEMBER

The opposite party in CC.No.269/2008  of the Consumer Disputes Redressal Forum, Kasaragod, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to refund insurance premium of               Rs 12,000/- and compensation of Rs 2,50,000/ with cost of Rs 10,000/- to the complainant. They were also directed to return the cheque leaves obtained by them from the complainant.

                 2.    The averments contained in the complaint are in brief as follows. The complainant availed a loan of Rs 2,00,000/- from the opposite party who purchased the vehicle bearing Reg.No.KL 14/D 9842 Bajaj Tempo Three Wheeler pick up. At the time of availing of the loan the opposite party promised to hand over the RC and other documents of the vehicle within 7 days from the date of agreement executed in furtherance loan transaction. But on the 7^th day the complainant was asked to wait for one month. After one month when the complainant approached the opposite party they told that the hypothecation is to be endorsed in the R.C through Registering Authority. Again when the complainant approached the opposite party he was sent back stating that was financed by some other bank which is in tie up with the opposite party and the RC and other documents are in possession of that company. Since the complainant submitted signed blank cheque leaves drawn on South Indian Bank Limited, Kasaragod branch towards the security of the loan, as demanded by the opposite party, fearing criminal prosecution proceedings, he paid the loan instalments, though he could not ply the vehicle without vehicular documents.  The Motor Vehicles Department penalized the complainant for non possession of vehicular documents. Hence the complainant was not using the vehicle and it was lying idle. The opposite party has obtained          Rs 12,000/- towards the insurance premium deposit but they never paid any amount towards the insurance premium. The complainant has paid more than    Rs 1,85,000/- towards the discharge of the loan and he is having receipts for the payments evidencing Rs 1,74,700/-. The remaining receipts are misplaced somewhere. The complainant purchased the vehicle to eke out his livelihood. Since the opposite party had not handed over the RC and other documents of the vehicle, he could not use the vehicle. Since the opposite party committed deficiency in service complainant sustained loss of         Rs 2,50,000/-. Hence the complainant has filed the complaint with the prayer to direct the opposite party to pay Rs 2,50,000/- as compensation, Rs 12,000/- obtained by him towards insurance premium and to direct them to issue the loan termination letter and to return the cheques obtained from him. In the version filed by the opposite parties they admitted the execution of loan cum hypothecation agreement by the complainant in their favour on 30.06.2004 for extending financial facility to the complainant for the purchase of a vehicle. But the complainant is not a consumer and the complaint is not maintainable before the forum. The opposite party denied the allegation of the complainant that they have retained RC book and other documents of the vehicle by them and even after repeated demands made by the complainant they have not handed over those documents to the complainant. The complainant had committed default in payment of the instalments and they had issued a notice to the complainant for remitting the balance amount. The complainant has filed the complaint suppressing material facts and the complainant is not entitled to get any reliefs against the opposite parties.

                 3.    Complainant was examined as PW1 and Exts.A1 to A4 were marked on his side and Exts.B1 to B3 were marked on the side of the opposite party. The report filed by the commissioner was marked as Ext.C1. Considering the evidence adduced by the parties and hearing both sides the district forum, on 07.02.2011 passed the order directing the opposite party to refund the amount of Rs 1,74,700/- with compensation of Rs 25,000/- and Rs 5000/- as cost to the complainant. Aggrieved by the order passed by the district forum the opposite party has preferred the appeal before this commission as A.392/11. By judgment dated 26.11.2011, this commission set aside the order of the district forum and the matter was remanded to the district forum for fresh disposal. Thereafter on 30.04.2015 the district forum has passed the impugned order. Aggrieved by that order the opposite party has preferred the present appeal.

                 4.    Heard both sides. Perused the records.

                 5.    The complainant availed a loan of Rs 2,00,000/- from the opposite party for purchasing a three wheeler pick up vehicle. According to the complainant at the time of availing the loan the opposite party promised to hand over the RC and other documents of the vehicle within a week. But when the complainant approached the opposite party after a week he was asked to wait for one month. When the complainant again approached the opposite party after one month he was told that hypothecation is to be endorsed in the RC through Registering authority. After one month when the complainant approached the opposite party they stated that the vehicle was financed by some other bank which has tie up with them and RC and other documents of the vehicle are in possession of that company. It is the case of the complainant that since he had given signed blank cheque as required by the opposite party, as security for the loan transaction, fearing criminal prosecution, he had been regularly paying the instalments and he had paid more than            Rs 1,85,000/-. He is having receipts for the payment evidencing     Rs 1,74,700/- and the remaining receipts were misplaced somewhere. Opposite party obtained Rs 12,000/- from him towards insurance premium deposit, but they never paid any amount towards the insurance premium. It is the case of the complainant that since the opposite party has not handed over the RC and other documents of the vehicle he could not ply the vehicle. He had purchased the vehicle to eke out his livelihood and because of the act of the opposite party he could not ply the vehicle and earn money for his livelihood. Motor Vehicle Department had penalized him several times for non the opposite party admitted that on 30.06.2004 the complainant has executed the loan cum hypothecation agreement with them for the purchase of the vehicle and the amount was sanctioned to him. The opposite party denied the allegations of the complainant that they had kept the RC and other documents of the vehicle they denied the statement of the complainant that he had paid Rs 1,85,000/- and they obtained Rs 12,000/- from him towards insurance premium. It is the case of the opposite party that the complainant committed default in payment of instalments and they had issued notice to him to pay the balance amount. The complainant has filed a false complaint against them. Ext.C1 is the report submitted by the commissioner who inspected the vehicle on 31.07.2009. It is reported by the commissioner that the vehicle is unfit to use and it can only have scrap value. It is stated by the commissioner that the vehicle is not in running condition. The platform of the vehicle was completely damaged and it is beyond repair. Due to rainfall, small plants, shrubs and herbs were growing inside the loading platform of the vehicle. The chasis and the supporting iron road were seen rusted beyond service. From the commission report it can be seen that the vehicle was lying idle for several months, prior to the visit of the commissioner.

 

                 6.    The counsel for the appellant submitted that the district forum ought to have considered the fact that once an award is passed by the Arbitrator the consumer dispute forum, has no jurisdiction to entertain the compliant and complaint perse become not maintainable before the forum. It is to be noted that in the version filed by the opposite party they have not raised such a contention. Ext.A1 notice by the opposite party to the complainant intimating that the matter will be referred to the arbitration is dated 20.06.2009. In Ext.B1, the copy of the arbitration award it is stated that the petition was received by them on 21.08.2009. The complaint was filed on 03.12.2008. So it can be seen that the opposite party moved for arbitration and the Arbitrator passed the award subsequent to the filing of the present complaint by the complainant before the district forum. So the contention of the appellant / opposite party that the complaint is not maintainable before the district forum since there was an arbitration award is not sustainable.

 

                 7.    The definite case of the complainant is that the opposite party failed to give the RC book and other vehicle related documents stating that they arranged refinance from KTFDC and hence RC book and other documents are with them. Hence he was constrained to keep the vehicle off the road in the premises of his house. Therefore he sent a lawyer notice dated 05.09.2008 to the opposite party demanding the RC and other cheque leaves and the documents obtained from him at the time of entering into the loan agreement. The case of the opposite party is that the RC and other documents of the vehicle were not with them. However, in cross examination DW1 admitted that they have received a lawyer notice issued by the complainant demanding the RC book and other documents and they have not sent any reply to that notice. DW1 deposed that they have made financial arrangements with KTDFC. But it is not clear as to what are the terms and conditions of the opposite party with the KTDFC with respect to the loan transaction of the complainant and whether the RC of the vehicle is given as a security for the loan to them. As observed by the district forum, in order to prove the endorsement of the financer both parties did not make any attempt to produce the duplicate or certified copy of the RC obtained from the concerned Registering authority. As found by the district forum therefore the only inference possible is that the opposite party might have obtained the RC of the complainant and it is not returned to him. The retention of RC of the vehicle is quite an unwarranted one, since the financiers interest is protected by the endorsement of the HP agreement in the RC of the vehicle. That being so the retention of the RC of the vehicle by the opposite party is unwarranted and it amounts to deficiency in service. We consider that there is no reason/ ground to interfere with the said finding of the district forum. Even though it is stated by the complainant that he is penalized by the Motor Vehicle Department for want of vehicular documents, he has not produced any documents to prove that allegation, though there may be probability for such penalization. The commissioner in Ext.C1 report has reported that the vehicle he inspected was an unfit to use and it can only have scrap value. In these circumstances it can be seen that the finding of the district forum that the complainant is entitled to get compensation from the opposite party is correct and justified.

                 8.    Ext.B1 is the loan cum hypothecation agreement entered into by the complainant and the opposite party on 30.06.2004. As per Ext.B1 the total amount is Rs 2,11,368/- which has to be repaid by 47 instalments of Rs 4400/- each and the 48 instalment of Rs 4568/-. The first instalment has to be paid on 30.07.20014 and the last instalment has to be paid on 30.06.2008. According to the complainant he paid an amount of Rs 1,85,000/- to the opposite party, but he has receipts with him regarding payment of Rs 1,74,700/-. According to the complainant the opposite party obtained an amount of Rs 12,000/- from him towards the payment of insurance premium. But they have not paid any amount towards insurance premium. Ext.B2 shows that the complainant paid an amount of Rs 1,77,000/- including the insurance premium of         Rs 10,177/-and the balance amount of Rs 69,155/- was due to the opposite party from the complainant. The opposite party had issued Ext.A4 notice to the complainant demanding payment of the balance amount. From Ext.B3 it can be seen that the Arbitrator has passed the award against the opposite party directing him to pay an amount of Rs 75,109/- with interest at the rate of 12% per annum from 21.06.2009 till realization to the complainant. It is the case of the complainant that on the basis of the arbitration award passed by the Arbitrator the opposite party filed petition for executing the award before the district forum, Kasaragod and he was arrested by the court officer with the help of the opposite party and he was constrained to pay Rs 25,000/-. Again he was arrested and he was constrained to pay Rs 43,000/-. But the complainant has not produced any document to show that he had paid Rs 68,000/- in execution proceedings of the arbitration award obtained by the opposite party against him. It is the case of the complainant that since the opposite party has not given the RC and other documents of the vehicle, he could not ply the vehicle and it was kept idle. According to the complainant the vehicle has run 5000, 6000 kms. But in Ext.C1 report it is stated that the Odo meter of the vehicle shows 32, 133 kms. According to the complainant when the vehicle was taken for service it was showing 3036 km and after the service of the vehicle the odo meter was stopped functioning and as requested by him the vehicle was fitted with used odo meter which had already run about 30,000 kms. The staff of the service center promised to replace the same with a new odo meter as and when it is reached. According to the complainant he had stated those matters to his counsel, but he omitted to state those matters in the complaint. Anyway in the complaint the complainant has not stated anything regarding the change of the odo meter of his vehicle. In these circumstances the case of the complainant and the vehicle has run only 5000, 6000 kms cannot be believed. According to the complainant the vehicle was not used for about two years. But he filed the complaint only on 04.12.2008 and he was not given any sufficient explanation for the delay or latches on his part in filing the complaint. It is an admitted fact that the complainant had paid        Rs 1,77,000/- to the opposite party. Regarding the payment of           Rs 25,000/- Rs 43,000/- in execution proceedings of the arbitration award obtained by the opposite party against the complainant, the complainant has not produced any document Ext.B3 shows that the opposite party has obtained an award against the complainant. So may can execute the award against the complainant. Considering all these facts, we consider that the compensation ordered by the district forum is to be reduced to Rs 2,00,000/- and the direction of the district forum to the opposite party to refund of Rs 12,000/- to the complainant is to be set aside. So the order passed b the district forum is to be modified to that effect. Regarding the direction of the District forum to the opposite party to return the cheque leaves to the complainant, no interference is called for.

                 In the result, the appeal is partly allowed. The Order passed by the district forum is modified as follows. The opposite party is directed to pay Rs 2,00,000/- as compensation and            Rs 10,000/- as cost to the complainant within 30 days from the receipt of copy of the order, failing which they are liable to pay interest at the rate of 10% per annum from the date of this order. On payment of the amount as ordered above, the opposite party is permitted to take back the vehicle from the place where it was kept, in the same condition. The opposite party is directed to return the cheque leaves drawn on South Indian Bank Limited, Kasaragod Branch bearing Nos.342671, 342672, 342673 to the complainant.

 

                 Parties are directed to suffer their respective costs.

 

                 At the time of filing of the appeals the appellant has deposited Rs 25,000/-. The respondent / complainant is permitted to obtain release of the said amounts on proper application, to be adjusted / credited towards the amount ordered as above.

 

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

 

RANJIT.R                         : MEMBER

 

 

BEENA KUMARI.A           : MEMBER

 

 

 

 

 

 

 

 

 

Be/

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NUMBER 416/15

JUDGMENT DATED :24.07.2019