BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 12th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.268/2015
(Admitted on 6.8.2015)
Mr. Shekar Kulal,
S/o Narayana,
Aged 32 years,
R/at D.No.3.83.4, Kengarady House,
Banangady Post, Kallamundkur,
Mangalore 574227.
……… Complainant
(Complainant by: In person)
VERSUS
- The Manager,
Shriram Transport Finance co. ltd,
First floor, Prabhu Complex,
Near Bus Stand, Moodbidri 574227.
- The Managing Director,
Shriram Transport Finance Co.ltd,
3rd floor, Mookambika Complex No.4,
Lady Desika Road, Mylapore, Chennai 600004.
……. Opposite Parties
(Advocate for opposite party No.1 and 2 by: Sri. KPR)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant submits that upon hypothecation of his TATA Sumo Victa passenger vehicle bearing Registration No. KA.41.6969, he had availed a vehicle loan of Rs.2,73,056/ from the Opposite Party on 14.8.2010 at the rate of 13% interest p.a. The said loan was to be repaid in 54 monthly instalments. The complainant is an undereducated person and a coolie by profession hence not in a position to understand the various other terms and conditions put forward by the Opposite Party at the time of availing the said loan. The Opposite Party has made complainant to put his signatures on various blank papers which was later on filled. The Opposite Party has also taken several blank cheques from this complainant. At the time of availing the aforesaid loan the Opposite Party had informed that the monthly instalment amount would gradually go on decreasing as the time elapses. As per the instructions from the Opposite Party, the complainant has promptly paid the loan amount in monthly instalments without fail. In this way the complainant has paid all the 54 monthly instalments and has successfully repaid the entire loan amount borrowed from the Opposite Party. Upon payment of the 54 monthly instalment, the complainant approached the Opposite Party for obtaining No Due Certificate/Hypothecation Cancellation letter, the Opposite Party informed the complainant that still pay more number of instalments than agreed at the time of availing the loan. The Opposite Party informed the complainant that a sum of Rs.29,500/ is due and the payment of the same it would amount to full and final settlement of the aforesaid vehicle loan thereafter the No Due Certificate/ Hypothecation Cancellation letter would be issued to the complainant. Being an under educated and innocent person the complainant believed and did what all the Opposite Party directed him to do. Hence this complainant has paid the said amount of Rs.29,500/ on 14.3.2015. The Opposite Party has handed over the statement of the aforesaid loan account to this complainant. On Perusal of the same, the complainant was shocked to acknowledge that the said statement of loan account showed that the complainant still owed money to the Opposite Party. When the complainant enquired the same, the Opposite Party has informed this complainant still owes Rs.1,47,105/ to the company till toady the complainant paid Rs.6,52,082/ as against Rs.4,32,793.76/ along with 13% interest p.a. for 54 months. Thereafter complainant issued legal notice absence of the response from the Opposite Party side the complainant filed the present complaint before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction to pay to refund a sum of Rs.2,19,288/ to this complainant, the same being the excess amount received by the Opposite Party along with 15% interest p.a. from the date of payment, to issue no due certificate/hypothecation cancellation letter with respect to the aforesaid vehicle loan, to return to this complainant all his blank cheques being in Opposite Parties custody and such other relief.
II. Version Notice served to the opposite parties by RPAD, the Opposite Party filed version stating that the Tata sumo victa passenger vehicle bearing no. KA.41. 6969 is a commercial vehicle hence the above complainant does not come under the definition of consumer as provided under the Consumers Protection Act. The complainant on 14.8.2010 obtained loan of Rs.2,73,056/ as per loan cum hypothecation Agreement. The rate of interest agreed under the said agreement is at 20.30% p.a. to be computed with monthly rests on the outstanding balance. The schedule III attached to the loan cum hypothecation agreement gives the details of 54 EMIs . the complainant having full knowledge of the terms of the agreement has given his consent to the terms by singing it along with a guarantor Mr. Ashok K. Opposite Party informed the complainant that Rs.29,500/ is the amount for full and final settlement, is false. The complainant further availed loans from the Opposite Party on 24.8.2011 and 12.3.2013 by entering into separate loan cum hypothecation agreement in respect of the above said vehicle. The complainant also obtained financial assistance for paying insurance premium from 2011 to 2015 and the said amounts towards the premium was paid by the Opposite Party and that amount is also due from the complainant. The complainant also availed another credit facility of Rs.10,021/ from the Opposite Party. Hence the total amount due from the complainant is calculated by considering the due amount in respect of the above said borrowings. The averment that the complainant has paid a sum of Rs.6,52,082/ is totally false. The total amount so far paid by the complainant in respect of the above said borrowings and other charges is Rs.5,15,956/. The allegation that the Opposite Party has collected excess amount from the complainant is totally false hence prays for dismissal.
III. In support of the above complaint, the complainant Mr. Shekar Kulal, filed affidavit evidence as CW1 and interrogatories not answered and produced documents got marked at Ex.C1 to C4. On behalf of the opposite party Vasudeva, (RW1) Officer, M/s Shriram Transport finance co. ltd, of opposite party filed affidavit evidence and produced documents got marked at Ex.R1 to R9.
IV. In view of the above said facts, the points for arise for our consideration in the case are:
- Whether the Complainant proved that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that, placed before the Fora and answered the points are as follows:
Point No. (i) : Affirmative
Point No. (ii) : Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (i) and (ii): It is the case of the complainant that on 14.8.2010 availed vehicle loan from Opposite Party for Rs.2,73,056/ at the rate of 13% interest p.a. with 54 instalment. As per Ex.C4 the entire loan paid by the complainant for Rs.6,52,082/ as against Rs.4,32,793.76/ as agreed between the parties. The allegation that the Opposite Party received a sum of Rs.2,19,288.24/ as excess amount from the complainant hence issued Ex.C1. On the other hand Opposite Party submits that the vehicle is used in the business of the complainant and he is not a consumer. After filing the complaint not answered the interrogatories which shows that the complainant supress the facts and on 10.8.2015 the complainant was due an amount of Rs.1,51,518/ to the Opposite Party in respect of the above said transactions the statement of account produced by the complainant shows the same as arrears. As per the Ex.R8 the Opposite Party admits 10.8.2015 that the complainant paid Rs.5,15,956/ and the complainant is liable to pay Rs.1,51,518/ to the Opposite Party. The allegation of the Opposite Party is that the vehicle bearing no. KA.41.6969 is a commercial vehicle but the Opposite Party not establish the case that the complainant using the vehicle for commercial purpose. Even though the complainant not stated in the complaint that the vehicle purchased for his livelihood considering the natural justice this fora not strictly binding upon the above aspect because of the absence of objection from the Opposite Party side. Now points for consideration is as per Ex.R1 the payable amount of the complainant is Rs.4,37,463/ and Ex.R2 payable amount along with interest is for Rs.93,713/ and as per Ex.R3 total amount payable Rs.1,09,789/, altogether the complainant has to pay Rs.6,40,965/ but herein the Ex.C4 shows that the complainant paid Rs.6,52,082/. The Opposite Party company issued Ex.C4 the summary of the loan for vehicle no. KA.41.6969 with Opposite Parties seal and signature, hence the contention of the Opposite Party does not arise. The contention of the Opposite Party that the insurance premium of the complainant from 2011 to 2015 was paid by the Opposite Party. As per Ex.R5 to Ex.R7 but the Ex.R1 not reveals that the policy premium is paid by the Opposite Party and the dispute between the parties are only to refund of the excess amount. After verifying the Ex.C4 the complainant already paid the excess amount of Rs.11,117/ to the Opposite Party company hence the contention of the above aspect does not arise. Even though the complainant avoiding cross examination by the Opposite Party, the Ex.C4 clearly reveals the excess payment made by the complainant towards the loan. After paying excess amount to the Opposite Party in not issuing no due certificate amounts to deficiency in service. In view of the above discussion we are of the opinion that Opposite Party shall refund of amount for Rs.11,117/ and issue no due certificate/Hypothecation letter with respect of Ex.R1, R2 and R3 along with all the blank cheques belongs to the complainant and Rs.10,000/ as compensation and Rs.5,000/ as litigation expenses as such point No.1 and 2 Affiramative.
In the result, accordingly we pass the following Order.
ORDER
The complaint is allowed. Opposite Party shall refund of amount for Rs.11,117/ and issue no due certificate/Hypothecation cancellation letter with respect of the vehicle bearing registration No.KA.41.6969 with respect of Ex.R1, R2 and R3 along with all the blank cheques belongs to the complainant and Rs.10,000/ as compensation and Rs.5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 9% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 12th May 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Shekar Kulal,
Documents marked on behalf of the Complainant:
Ex.C1: Legal notice dated 29.7.2015.
Ex.C2: Postal receipt and acknowledgement.
Ex.C3: 14.3.2015: Receipt for payment of Rs.29,500/.
Ex.C4: Statement of the loan account and repayment schedule issued by the Opposite Party to the complainant.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Vasudeva, Officer, M/s Shriram Transport finance co. ltd
Documents marked on behalf of the Opposite Parties:
Ex.R1: 14.8.2010: Loan cum hypothecation agreement entered into by Mr. Shekar Kulal and Ashok with Shriram transport fincance co.ltd.
Ex.R2: 12.3.2013: Loan cum hypothecation agreement entered into by Mr. Shekar Kulal with Shriram transport finance co.ltd.
Ex.R3: 24.8.2011: Loan cum hypothecation agreement entered into by Mr. Shekar Kulal with Shriram transport finance co. ltd.
Ex.R4: 11.8.2011: Certificate cum policy schedule issued by shriram general insurance.
Ex.R5: 11.8.2012: Certificate cum policy schedule issued by shriram general insurance.
Ex.R6: 11.8.2013: Certificate cum policy schedule issued by shriram general insurance.
Ex.R7: 11.8.2014: Certificate cum policy schedule issued by shriram general insurance.
Ex.R8: 10.8.2015: Reply addressed to Deepraj S. Ambat by branch manager.
Ex.R9: 13.8.2015: Postal acknowledgment signed by deepraj S. Ambat.
Dated: 12.05.2017 MEMBER
