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 18th day of February 2010 CC.58/2008 V.Haridas, Thundiyil House, P.O.Muringeri, Anjarakandy, Kannur 670 612. Complainant (Rep. by Adv.P.N.Nambiar) 1.Managing Director, Mahindra & Mahindra Financial Services Ltd. Gateway Building, Apollo Bender, Mumbai 29. 2. Branch Manager, Mahindra & Mahindra Financial Opposite parties Services Ltd. Kakkad Road, South Bazar, Kannur. (Rep. by Adv. P.K.Naushad) O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay Rs.9990/- including cost and compensation. The brief facts of the case of the complainant are as follows: Complainant approached the opposite party to purchase a vehicle and thus entered in to a hire purchase agreement dated 7.10.03 by which she got the vehicle KL.13.K.3562 Mahindra Cab king 576 D1 cabin agreeing to pay Rs.472730/- by 41 equal monthly instalments @ Rs.11530/-. Opposite parties demanded to open an account and to pay the instalments before 7th of every month and also demanded 41 cheques. The instalment started from 7.10.2003 since the complainant was having the account in Syndicate Bank, Chakkarakkal he has issued 6 cheques of that account to opposite party. When he went to deposit the first instalment he could understand that it was not possible to deposit the amount since it was an NRI account. Then he applied for a new account and the first instalment paid directly in the office of the opposite party with ready cash and obtained receipt for the same so as to avoid delay. New account opened and its 40 cheques signed transferred to opposite party for the payment of instalment. So also demanded for return of 6 NRI cheque leafs. But even after repeated request they did not return the cheque leafs but assured that the same will not be presented before the bank. But contrary to this assurance 2nd opposite party presented three NRI cheques and naturally it was returned since there was no sufficient account. Opposite party presented then the cheuqe from among the cheuqes of SB account 16040 which was given by the complainant second time and collected the amount. Complainant deposited instalment amount regularly before 7th of every month. If the cheuqe that of SB account No.16040 has been produced no question of dishonour would have been occurred. It was not possible to remit the amount in NRI account and that was the reason why a new account happened to be opened and the amount regularly started depositing in the new account. It is only due to the negligence of 2nd opposite party that they presented NRI cheque before the bank. There is no fault on his side. When all the balance monthly instalments paid correctly he was asked to pay an amount of Rs.3990/- more by 2nd opposite party for reasons of cheque return charges and default charges. But when explained that he was not responsible for the return of cheque they insisted him to remit the amount telling him that, without which clearance certificate will not be issued. Thus he was compelled to remit the amount and also insulted in front of others. The amount Rs.3990/- was remitted by the complainant; for fear of denying the clearance certificate. Certificate was issued after the payment. Complainant sent lawyer notice demanding to repay the amount Rs.3990/- paid by the complainant by the pressurization of 2nd opposite party and Rs.5000/- as compensation. After receiving the lawyer notice he was called by 2nd opposite party to their office and told that the dispute can be settled for which they want 2 months time. Complainant approached after 2 months and this time 2nd opposite party asked him to come after one month. Accordingly when complainant approached opposite party after one month repeated the same and asked to come again. It was repeated several time and at last when he went to meet 2nd opposite party in his office on 7th February 2008. Opposite party behaved rudely and irresponsibly and told the complainant that an amount once remitted to company, would not by any reason be refunded and not to come to his office thereafter with this question. Since there is no other go this complaint for the redressal. Pursuant to the notice opposite parties entered appearance and 2nd opposite party filed version for and on behalf of himself and on behalf of 1st opposite party also. The main contentions of the opposite parties in brief are as follows: The allegation that the complainant presented the NRI cheques in the bank without the consent and knowledge of the complainant is also absolutely false. The complainant never asked the complainant not to present the NRI cheque. He has not also asked to return the NRI cheques. The cheque was presented as per the instruction of the complainant. When it was dishonored they collect the cheque return charge and default charges as usually. They were constrained to collect the said amount only due to the fault of the complainant. As conceeded in the complaint itself after so many reminders they presented the cheque in the bank. Hence there is no deficiency in service of unfair trade practice on the side of the opposite parties hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of the opposite parties? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1, DW1, and Exts.A1 to A10. No documents marked on the side of the opposite parties. Issue Nos. 1 to 3 Admittedly the complainant purchased a vehicle upon a hire purchase agreement on condition of payment of an amount of Rs.472730/- by 41 equal monthly instalments @ Rs.11530/- before 7th of every month. Complainant’s case is that opposite party charged Rs.3990/- over and above the stipulated amount out of compulsion. Opposite party on the other hand contended that this was an amount which was collected as the cheque return charge and default charges. Complainant pleaded that he had first entrusted 6 NRI cheque leafs for the purpose of payment of instalments. But when he went to bank for depositing the amount he came to understand it is not possible to deposit the amount since the account is NRI and he made arrangement to open a new account. To avoid the delay in payment of 1st instalment he immediately approaches the office of the opposite party and paid the amount there with ready cash and obtained receipt. Ext.A1 statement of account shows that he has paid an amount of Rs.11530/- on 7.10.2003. This was not denied by the opposite party. Since it was not denied the allegation of the complainant that he has entrusted 6 NRI cheque to 2nd opposite party can be believed. Complainant further pleaded that he had opened new S.B account 16040 and 40 cheques signed of this account entrusted with opposite party for the purpose of payment of instalments. Opposite party did not deny the fact of entrustment of 40 cheques. Thus it can also believe that 40 signed cheques of SB account 16040 have also been entrusted with the opposite party. Complainant specifically alleged that he demanded to return the 6 NRI cheques while the other 40 cheques of SB account 16040 had been entrusted with opposite parties. Complainant also alleges that even after several attempts to get the NRI cheques opposite party did not returned it but assured him that the said NRI cheque will not be presented before the Bank. But opposite parties in their version denied it and specifically contended that the complainant never asked the opposite party not to present the NRI cheque and never asked to return the same. It can be seen that there are 6 NRI cheques and 40 other cheques are entrusted with the opposite parties. There are only 40 instalments to be paid by way of cheqes. The complainant’s case is that it is the 40 cheque of SB account 16040 entrusted with the opposite party for payment of instalments. Complainant has explained the circumstances under which these cheques were happened to entrust. Here arose certain questions. What is the reason for not returning the 6 NRI cheques while receiving 40 new cheques which cover the entire instalment amount? It is the cheque that belongs to complainant. There is no need to retain these cheques with opposite party when they had received new sufficient cheque covering the entire instalment amount. In the usual course of dealings the complainant being a man of ordinary prudence might have asked to return the cheques which he had entrusted earlier unknowingly. It is crystal clear that the entrustment of 40 cheques of SB account 16040 is specifically meant for the payment of entire instalments. If any other cheques other than the above said 40 new cheques had been kept by the opposite party the legal and moral obligation lies upon the opposite party not to mis utilise any one of those other cheque. The opposite parties are bound to understand the purpose for which the second set of 40 cheques was entrusted. Even without any instruction a man of ordinary prudence can understand the entrustment of cheques 40 in number is also for the purpose of not using the cheques entrusted earlier. Opposite parties filed version but has not explained the necessity of presenting the NRI cheque instead of other cheques. Opposite parties had not attempted to explain the circumstances under which they presented the NRI cheque before the bank for collection when they are having sufficient other valid cheques in their hands. In the light of the above discussion we have no hesitation to hold that this is unfair trade practice on the part of opposite parties and opposite parties are liable to refund the amount of Rs.3990/- together with Rs.3500/- as compensation with Rs.1000/- as cost. If the amount is not paid in time they are also liable to pay 10% interest for the entire amount due from the date of pronouncement of the order. Hence issues 1 to 3 are answered in favour of complainant. In the result, the complaint is allowed directing the opposite parties to refund Rs.3990/-(Rupees Three Thousand Nine Hundred and Ninety only) together with Rs.3500/-(Rupees Three Thousand Five hundred only) as compensation and an amount of Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the opposite parties are also liable to pay interest @10% p.a from the date of pronouncement of this order for the entire amount due. The complainant is entitled to execute the order after the expiry of one month as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Statement of accounts A2.Copy of the SB account pass book issued from Syndicate Bank A3.Cash receipt dt.7.11.03 issued by OP A4.Copy of the memo issued from Syndicate Bank dt. 19.12.03 A5.Copy of the return memo issued from syndicate Bank dt.17.2.04 A6. .Copy of the memo issued from Syndicate Bank dt. 16.12.03 A7.Copy of the finance scheme statement issued by OP A8.Copy of the lawyer notice sent to OP A9.Postal Acknowledgement A10.Copy of the receipt issued by OP Exhibits for the opposite parties: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties DW1.Sunilkumar /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur | 
