KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 721/2015
JUDGMENT DATED: 16.08.2019
(Against the Order in C.C. 208/2012 of CDRF, Malappuram)
PRESENT :
SRI. T.S.P. MOOSATH : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- The Manager, Mahindra and Mahindra Financial Services Ltd., 2nd Floor-Clock Tower, Mavoor Road, Pottammal Junction, Calicut-673 016.
- The Manager, Mahindra & Mahindra Financial Services Ltd., Desabimani Building, Near MSP Camp, Malappuram represented by its power of attorney, Balu S.R.
(By Adv. Abhishek. R.V)
Vs.
RESPONDENT:
Aravindaksha Prasad, Kalathingal House, Valiyattiparambu, Mullanpara P.O, Manjeri, Ernad Taluk, Malappuram.
(By Adv. Abdul Shukkur Arakkal)
JUDGMENT
SMT. BEENA KUMARY. A : MEMBER
The appellants are the opposite parties in C.C. No. 208/2012 on the file of Consumer Disputes Redressal Forum, Malappuram. The respondent is the complainant.
2. Brief facts of the case are as follows: The complainant had purchased a Toyota Innova vehicle bearing No. KL-10 Z-9404 from the 1st opposite party as per the advice and direction of 2nd opposite party, paying an amount of Rs. 5,45,000/-. The opposite parties failed to issue No Objection Certificate in favour of the complainant and thereafter in response to repeated requests, the 1st opposite party issued No Objection Certificate to transfer the vehicle in the name of the complainant. Subsequently the Regional Transport Officer rejected the application for transferring the vehicle by stating the reason that on earlier occasion the vehicle was hypothecated with ICICI Bank and such hypothecation cancelled by the forged document and which thereafter transferred in the name of one Abdul Nasar. Criminal cases are pending and suppressing all these facts and knowing that the vehicle is not transferable and saleable the opposite parties transferred the vehicle to the complainant and thereby they have committed deficiency in service.
3. The opposite parties filed version by which all the averments in the complaint is emphatically denied. Opposite parties are strongly resisting the complaint stating that one Abdul Nazar, S/o Mohammed Paloth approached the 1st opposite party at his office at Calicut for availing re-finance loan facility for the Toyota Innova vehicle No. KL-10 Z-9404. After verifying all the records of the vehicle, the 1st opposite party executed agreement with Abdul Nasar and issued the loan for a sum of Rs. 5,00,000/- on 27.10.2009. The total amount repayable was Rs. 6,95,000/- and one Mr. Saleem was the guarantor. It is further contended by the opposite party that Mr. Abdul Nasar was a chronic defaulter in repayment and a huge amount was due to opposite parties. In spite of repeated requests, no steps were taken to clear the dues. Finally, the said vehicle was surrendered to opposite parties on 24.11.2011 with a request to adjust the same towards the outstanding dues as per the proceedings. But subsequently, the above said guarantor Mr. Saleem and the complainant approached the opposite party with necessary authorization to represent said Abdul Nasar and requested to release the vehicle to him on payment of the entire outstanding balance due to the opposite party. Thus the opposite party released the vehicle to the above said guarantor, receiving Rs. 5,45,000/- from him towards closing the entire outstanding balance in the loan account. It was on remitting the amount towards the loan the receipt was also issued to him by opposite party. Thereafter as per the request of the said guarantor Mr. Saleem the opposite party issued a letter to the complainant showing that the payment was effected by him towards the above said loan, said letter was given only for the purpose of selling the vehicle to the complainant. After closing the above said loan the opposite parties issued No Objection Certificate to cancel the hypothecation endorsement in the vehicle as per the procedure on 09.03.2012. The opposite party was vehemently contesting the case and states that apart from the above the opposite parties have no connection or transaction with the complainant and the complainant never contacted with opposite parties to purchase the vehicle. The opposite parties provided the loan to Mr. Abdul Nasar seeing that the documents submitted is genuine and not aware of the forgery and criminal case. So no deficiency is committed by the opposite parties.
4. In this case both parties filed affidavit, both of them not cross examined. Complainant has produced 7 documents which were marked as Exts. A1 to A7.
5. The finding of the forum is that there is no loan agreement between the complainant and opposite parties. As Ext. A4 registration certificate is in the name of Abdul Nasar, it reveals that the hypothecation agreement with the opposite parties is cancelled. Ext. A7 shows that the transaction was not a sale or purchase of the vehicle. It reveals that the loan account No. 1049035 was closed. It was closed on behalf of Mr. Saleem who was the guarantor of the loan. The complainant remitted the loan amount for and on behalf of the guarantor. The District Forum found that the opposite parties issued loan to Abdul Nasar and guarantor was Mr. Saleem. Abdul Nasar committed default in repayment and hence the opposite party seized the vehicle. Thereafter the complainant paid the entire arrears and closed the loan for and on behalf of the guarantor Mr. Saleem. From the above mentioned reasons the District Forum found that no sale or purchase has been taken place between the complainant and the opposite parties. Exts. A6 and A7 prove that in order to close the loan agreement complainant had paid Rs. 5,45,000/- to the opposite parties. The District Forum found that Ext. A6 produced by the complainant discloses that Abdul Nasar had committed forgery and using forged documents as genuine he had hypothecated the vehicle with the opposite party and opposite party sanctioned the loan to him. These are serious offences punishable under Sec. 465 and 471 of IPC and the Karipur police has charged the case as Crime No. 264/2012. ICICI Bank is the defacto complainant in that case. Since the police investigation will be confined about the forgery committed by Mr. Abdul Nasar in the RC endorsement and change of ownership etc. the police might have questioned the opposite parties and collected evidence from the opposite parties’ office. So the forum disagreed with the stand taken by the opposite parties in the version and counter affidavit. So the opposite parties suppressed the fact that they are aware of the criminal case regarding the said Registration Certificate against Abdul Nasar.
6. Since the offence of forgery is committed by Mr. Abdul Nasar and the criminal case is pending against him alone, there is no chance for the complainant and Mr. Saleem to be aware of it. None of the parties has produced the details of the criminal case and its present stage. It is true that Regional Transport Officer, Malappuram has rejected the application of the complainant for changing the ownership, since the vehicle could not be taken from the garage. The Registration Certificate is also in the custody of the RTO. In such circumstances, the vehicle is not saleable or transferable. The view of the Forum was that the opposite parties had issued NOC to RTO by Ext. A7 for transferring the ownership, after fully knowing well that the vehicle is not transferable or saleable, it has committed deficiency in service and thus liable to compensate the loss of the complainant. Hence the District Forum directed the opposite parties to pay Rs. 50,000/- to the complainant as compensation for the loss and mental agony of the complainant. Aggrieved by the impugned order opposite parties/appellants have filed this appeal.
7. The appellants argued that the District Forum ought to have found that ICICI Bank registered the complaint before Karipur police station during the year 2012 only and the same has been informed to the RTO on 28.04.2012 only. The opposite parties provided the loan in dispute on 27.10.2009. Hence there is no chance for knowing the pendency of criminal case by the opposite parties. The District Forum ought to have found that the complainant and the guarantor paid the entire loan amount on 21.12.2011. At that time there was no pendency of any criminal case. Hence there is no reasoning for the presumption and judgment of the Forum below. We also find that the above mentioned arguments of the appellants are correct.
8. Another contention raised by the appellants is that there is no consumer relation between the appellants and respondent. There is no transaction or agreement with the complainant and opposite parties. The respondent paid the amount to the appellants for and on behalf of the guarantor. Ext. A7 letter was given for and on behalf of the guarantor. In Ext. A6 document issued by the Regional Transport Officer it is clearly stated that the vehicle bearing Reg. No. KL-10-Z-9404 sold by Abdul Nasar to the complainant Aravindaksha Prasad and also mentioned that as per prevailing law the appellants Mahindra Ltd. has no right to transfer the vehicle to anybody else. Hence it is clear that the appellants never had sold the vehicle to the respondent. Hence there is no consumer relation between the appellants and respondent.
9. From the above mentioned discussions we find that there is no deficiency in service or unfair trade practice occurred from the side of appellants/opposite parties.
In the result, the appeal is allowed and the Order passed by the District Forum in C.C. No. 208/2012 is set aside. The appellants have the right to withdraw the amount deposited by them before this Commission and District Forum. No order of costs.
T.S.P MOOSATH : JUDICIAL MEMBER
jb BEENA KUMARY. A : MEMBER
