Per Hon’ble Mr.Dhanraj Khamatkar, Member
This appeal takes an exception to an order dated 13/05/2011 passed by the District Consumer Disputes Redressal Forum, Kolhapur in consumer complaint no.CC/10/434.
Facts leading to this appeal can be summarized as under:-
The complainant had purchased Bajaj Wave Scooter bearing no.MH-09-AR-9136 by taking a loan from the respondent. The respondent had taken in their custody the R.C. book and T.C. Book of the vehicle and recorded the encumbrance of the loan taken by the appellant. Loan was to be repaid in 30 installments of `1171/- each per month. Accordingly, the appellant had given 30 post dated cheques to the respondent. The cheques were drawn on the Mahalaxmi Co-operative Bank, Tarabai Park, where there is account of the appellant. Respondent no.1 had presented 28 cheques to the bank and, accordingly, bank has made a payment to the respondent from the account of the appellant. In the month of November 2009, appellant/complainant approached to the State Bank of India for a four wheeler loan and he has completed all the formalities for sanctioning the loan. However, the loan could not be sanctioned to the complainant/appellant because there is a report from Credit Information Bureau of India Ltd. (In short ‘CBIL’) stating therein that the loan taken by the appellant for the two wheeler is outstanding and, hence, the appellant/ complainant could not get the loan from SBI. On enquiry, it has been told that the opponent/respondent has informed the CBIL that the complainant/ appellant is a defaulter. Hence, alleging deficiency on the part of the respondent/opponent, he has filed the consumer complaint praying directing the opponent /respondent to return him the papers of the vehicle, direct the opponent/respondent to inform CBIL that he is not a defaulter and, hence, his name from the list be deleted and to pay compensation of `1 lakh.
The opponent contested the complaint by filing written version stating therein that the complainant is not a ‘consumer’ and an amount of `2342/- is outstanding against the complainant/appellant along with penal interest of `6,471/- and, hence, complaint filed by the complainant be dismissed.
District Forum after going through the complaint, written version, evidence filed by both the parties on affidavits and pleadings of their advocates came to be conclusion that there is deficiency in service on the part of opponent/respondent and allowed the complaint partly directing the complainant to pay an amount of `2,342/- and penal charges amounting to `6,471/- to the opponent. On receipt of the said amount, the opponent was directed to hand over the papers to the complainant/appellant. The opponent was directed to pay an amount of `2,000/- as compensation for mental agony and `1,000/- as costs. Aggrieved by the said order, original complainant had filed present appeal.
We heard Mr.Jayant Bardeskar-Advocate for the appellant. Respondent remained absent though duly served. Admittedly, appellant had purchased Bajaj Wave Scooter bearing no.MH-09-AR-9136 from the respondent by taking a loan from the respondent. Admittedly, the loan amount was to be paid within a period of 30 months in monthly installments of `1171/- each. The appellant had handed over post dated cheques drawn on Mahalaxmi Co-operative Bank, Tarabai Park and the total cheques were 30. There is no dispute regarding the payment of 28 installments. However, the respondent has not presented the two cheques for encashment. The appellant was under impression that he has paid all the installments. However, when he approached to the State Bank of India for a four wheeler vehicle loan, he could not get the loan as the respondent had informed to the CBIL that the appellant is a defaulter.
Now the question remains when the appellant has deposited all the cheques, the respondent has presented 28 cheques to the bank for encashment and why the respondent has not presented the remaining two cheques to the bank for encashment. The respondent has not issued any notice to the appellant for the payment of remaining two installments. Had the respondent informed the appellant he could have deposited the cheques. Instead of this, the respondent has informed CBIL that the appellant is a defaulter. There is clear cut deficiency in service on the part of respondent. An amount of `2,342/- which is still to be paid to the respondent, it is because of the mistake on the part of the respondent. As it is because of the mistake of the respondent, the respondent cannot ask the appellant for penal interest. District Forum while passing the order has not taken into consideration that there is deficiency in service on the part of the respondent. Hence, the order of the District Forum needs to be set aside. We hold accordingly and pass the following order:-
ORDER
Appeal is partly allowed.
Order of the District Forum is modified and the respondent/original opponent is held to be deficient in service. Appellant is directed to pay an amount of `2,342/- to the respondent and after receipt of the said amount, respondent is directed to hand over the papers of the vehicle to the appellant and inform the CBIL that the appellant is not a defaulter.
Order directing the opponent/respondent to pay an amount of `2000/- for the mental agony and `1000/- as costs is set aside.
Pronounced on 26th September, 2013.
