D.O.F. 18.10.2005

                                          D.O.O. 21.12.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :               President

                   Smt. K.P.Preethakumari    :              Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 21^st day of December, 2010.

C.C.No.264/2005

1.   Dr. Abraham Mathew,

      ‘Romas’, SPCA Road,

       Talap, Kannur -2.       (Died)

2.   Sissy Abraham,

      W/o. Late Abraham Mathew.

3.    Roshan Abraham,

       S/o. Late Abraham Mathew.

4.    Ronin Abraham,

       S/o. Late Abraham Mathew.                         :         Complainants

5.   Susan Titus,

      W/o. deceased son Titus Abraham.

6.   Abel,

      S/o. deceased son Titus Abraham,

      Aged 12 years, rep. by his mother Susan Titus.

7.        Rachel, D/o

8.        . deceased son Titus Abraham,

      Aged 10 years, rep. by her mother Susan Titus.

All are residing at ‘Romas’, Talap, Kannur-2

(Rep. by Advocate K.C. Santhoshkumar) 

1.     The Manager,

ICICI Bank,

KVR Tower, Kannur – 2.

(Rep. by Advocate Shahier Singh M.)                           

    2.   The Regional Manager,                              :         Opposite parties

ICICI Bank Ltd.,

M.G. Road, Cochin.

O R D E R

Smt. K.P.Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection

Act for an order directing the opposite parties to return the blank cheque having No.000105418 drawn on Syndicate Bank, Kannur, and to return the extra key of the car having No.KL-13/K-491 along with ` 1,00,000 as compensation with cost of the proceedings.

          The case of the complainant is that he had availed, ` 4,50,000 as loan for purchasing a car from opposite party and the entire loan amount was prepaid prior to due date and the same was endorsed on 26.03.2005.

          At the time of availing loan, the complainant issued blank signed cheques and one key of the car to the opposite party.  After closure of the account the complainant demanded for the return of 10 cheques and the duplicate key retained by the opposite parties.  But the opposite parties failed to return the key and one of the blank cheque and hence the complainant was constrained to issue a stop payment to his bank on 29.03.2005.  But the opposite party was not ready to give any kind of assurance as regards the key and the cheque leaf. But to the surprise of the complainant the above referred cheque was sent for collection on 15.04.2005 by opposite parties suppressing this information from the complainant and the cheque was returned unpaid.  The complainant was made to pay an amount of ` 55 out of his pocket solely due to the deficient and negligent service rendered by opposite parties.  Since the complainant have been residing at the heart of Kannur town, at Talap, he was not in a position to take out the car unattended since the other key was found missing, and there is every possibility of the vehicle being stolen.  Because of this he was constrained to avail the service of taxi for his daily usage spending more than ` 200 per day and the same was continuing from 26.03.2005, the date on which the key was refused to handed over to the complainant and the vehicle was kept in idle due to this reason.  Besides this the return of cheque caused severe mental agony as well as loss of reputation among the Manager and staff of bank.  The act of opposite parties is deficiency in service and hence the complainant is entitled to get compensation as well as the return of key and cheque bearing No.000105418 drawn from Syndicate bank, Kannur.  Hence the complaint.  Later on complainant was died and his legal heirs are impleaded as complainants No.2 to 7.

          Upon receiving the notices from the Forum both opposite parties appeared and filed their version.

          The opposite parties contended that the complainant is not a consumer since the complainant has neither hired the services nor has purchased any goods from the opposite parties and the complainant is the hirer as per the Higher Purchase agreement and hence there exists a bailor and bailee relationship.

          The opposite parties admits that the complainant had availed a vehicle loan for ` 4,50,000.  They further admit that the complainant has paid the entire amount of loan in full and final settlement; as premature closure.  Since the payment was made towards the end of the month, the cheque for the next installment was presented from the head office, Mumbai.  But the opposite parties specifically directed the complainant to issue stop payment letter to the complainant’s bank with respect to balance cheques, in view of the fact that the cheques are presented from the head office.  The cheque presented from the head office was dishonoured due to stop payment.  There is no deficiency of service on the part of opposite parties, since the complainant had violated the terms and conditions of the agreement and hence he is not entitled for any claim.  The allegation that the opposite party had failed to return back the key is utter false.  The keys of the complainant’s vehicle was never accepted or retained by opposite party as alleged in the complaint. The allegations that, the complainant was made to pay an amount of ` 55 and that he is hiring tax for his daily usage for spending more than 200 per day etc are false.  The further allegation that the complainant is entitled for an amount of 1,00,000 as damages for mental agony, caused because of the failure to return the duplicate key and cheque leaf etc are false and hence the complaint is liable to be dismissed.

          Upon the above contentions the following issues have been raised for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency of service on the part of the opposite parties?

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost?

The evidence in the above case consists of the oral testimony of PW1, PW2, DW1 and Exhibits A1 to A7 and Ext.B1.

Issue No.1 :

          The opposite party contended that the complaint is not maintainable and the complainant is not a consumer as there exists a bailer and bailee relationship between the complainant and opposite party.  But as admitted by opposite party it is seen that the complainant had entered into a hire purchase agreement for an amount of ` 4,50,000 as vehicle loan and the same account was closed by the complainant as Fore Closure on 26.03.2005 by paying ` 10,471.26 as Fore closure charge and terminated the Higher Purchase Agreement.  But the allegations against the opposite party is that he has not returned the cheque leaf to the complainant and the same was presented for collection after closure of account.  So the complainant is not for specific performance of any conditions in the agreement, more over the Higher Purchase agreement was terminated and hence the bailer and bailee relationship is exhausted.  Moreover the National Commission in Ashok Leyland Finance Ltd., Vs Smt. Krishna Yadav held that, refusal to issue no dues certificate after full payment received is deficiency in service and that was reported in 2004 NCJ 594 (N.C.)  But the case in hand, the opposite party himself admits that the complainant had closed the entire dues.  So we hold the view that the complainant is a consumer and this Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.

          The further case of the complainant is that the opposite party was failed to return one cheque leaf and they had presented the same before the syndicate bank, eventhough the entire loan was closed by the complainant and also failed to handed over one of the key of the vehicle which was surrendered before the opposite party at the time of releasing the loan amount.  In order to prove the case the PW1 and PW2 were examined and produced as Exts. A1 to A7 such as delivery chalan along with vehicle delivery card pre-closure statement, payment chart, copy of lawyer notice, acknowledgment and statement of account of the complainant’s bank.  To disprove the case opposite party was also examined as DW1 and Ext.B1 agreement was produced.

          The opposite party admits that the complainant has entered into an Hire Purchase Agreement and already closed the account as foreclosure on 26.03.2005.  The opposite party further admits that the Mumbai Head Office of opposite party presented the cheque for collection without the knowledge of opposite party after the fore closure of the account.  But they contended that the complainant had closed his bank account as per their instruction and the cheque was dishonoured due to this and has not suffered any loss or hardship.  Ext.A3 shows that the complainant had closed the account on 26.03.2005 as fore closure by paying ` 10,471.26 as fore closure change.  So the above contention of the opposite party itself shows that there is some negligence on the part of opposite party for intimating to the Bombay office the fact that the complainant had closed the account.  The opposite parties are the branch offices and they are duty bound to inform to the concerned office that the account of the complainant is closed as full and final settlement.  So we are of the opinion that there is deficiency on the part of the opposite parties.

          Yet another case of the complainant is that the opposite parties had retained the key.  But the opposite party denied the allegation by saying that the keys of the complainant’s vehicle was never accepted or retained by them.  But it is a well-known procedure of opposite party that retaining one key of the vehicle, if a loan is availed for vehicle.  The PW1 deposed that “h­n Cd¡p-t¼mÄ Rm³ t]mbn-cp-¶p. tjmdq-an-ep-f-f-hÀ ]dªp Hcp Xmt¡m _m¦n sh¡p-sa¶v.  Hcp Xmt¡m am{Xta X¶n-«p-ffq F¶v `À¯mhv ]d-ªp.  The PW2 also deposed to the effect that the duplicate key was retained before the opposite parties.  So we are of the opinion that there is deficiency of service on the part of opposite party, by retaining the key even after closing the loan account.  The complainants contended that they have suffered so much of hardship and mental pain due to the act of opposite party.  But no evidence is before us to quantify the inconvenience caused to them.  So we assess ` 5,000 as compensation and ` 1000 as cost of the proceedings and the opposite parties are liable to compensate the complainant by paying that amount to the complainant and order passed accordingly.

In the result the complaint is allowed partly directing the opposite parties to pay ` 5,000 (Rupees Five Thousand only) as compensation and  ` 1,000 (Rupees One Thousand only) as cost of the proceedings to the complainants within one month from the date of receipt of this order. otherwise the complainant is at liberty to execute the order as per the  provisions of Consumer Protection Act.

                          Sd/-                   Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.   Invoice dated 08.08.2003.

A2.   Bank receipt dated 26.03.2005.

A3.   Letter dated 26.03.2005

A4.   Bank statement dated 07.09.2005.

A5.   Notice dated 20.08.2005.

A6.   Acknowledgement dated 25.08.2005(2 Nos)

A7.   Statement of Account from 01.01.2005 to 30.03.2007.

Exhibits for the opposite party

B1.  Vehicle loan cum hypothecation agreement.

Witness examined for the complainant

PW1.  Complainant No.2

PW2.  Complainant No.1

Witness examined for opposite party

DW1.  Sandeep Nair

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT