IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 30th day of June, 2023.
Filed on 12.01.2023
Present
1. Smt.P.R Sholy, B.A.L, LLB (President-in-charge )
2. Smt.C.K.Lekhamma, B.A, LLB (Member)
CC/No.11/2023
between
Complainant:- Opposite party:-
Sri.Shaji S Bajaj Finance Ltd.
S/o Savadkutty Alappuzha Branch, 1st floor
Thottuparambil Kizhakkethil Sree Sai buildings, Palace road
Kayamkulam P.O. Kallupalam, Alappuzha-688011
Alappuzha-690502
Bajaj Finance Ltd.
Head Office, Near Metro Station
Edappally P.O., Ernakulam-682021
(Adv.Dhanya Babu for Ops)
O R D E R
SMT. P.R SHOLY (PRESIDENT IN CHARGE)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant is an autorikshaw driver by profession. Complainant had purchased an autorikshaw bearing No.KL 29 R3341 by availing a loan of Rs.1,60,000/- (One lakh sixty thousand) from 1st opposite party as per the agreement No.L3WALPO7774600 dated 17.10.2019. The repayment term was equal monthly installment of Rs.4834/- from 07.12.2019 to 07.08.2026. The complainant had been remitted the installments promptly except the 5 installments during the period of vide spread of covid 19 pandemic throughout the country were the opposite party would not given the benefit of moratorium facility, though the same was allowed by all the financial institutions during the said period. Complainant had remitted a total amount of Rs.1,49,875/- in 31 monthly installments and 5 installments are in arrears as per the terms of agreement. When the complainant approached the opposite party for closing the loan account, the opposite party demanded Rs.1,70,000/- as balance amount. From the loan account statement it was seen that a total amount of Rs.10,500/- obtained as cheque bouncing charge for 30 times @ Rs.350/-. It is illegal since the complainant had remitted the installments promptly. While the moratorium was existed opposite party obtained Rs.1078/- as late payment penalty from the complainant illegally. The opposite party also obtained Rs.8720/- as late payment penalty on different months without any explanation. The acts stated above are amounts to deficiency in service and unfair trade practice from the part of opposite party and hence this complaint for refund of Rs.10500/- obtained from the complainant being cheque bounce charge, Rs.1078/- obtained from the complainant being late payment penalty for the arrears during the period of covid 19 moratorium, Rs.8720/- obtained from the complainant being late payment penalty on different occasions and also for directing the opposite party allowing the complainant foreclosing the loan considering the legally acceptable amount from the complainant.
2. In response to the complaint opposite parties Nos.1 and 2 filed version as follows:-
In this complaint the question of interpretation of close of policy (moratorium) is involved hence this Commission does not have jurisdiction to entertain the same. The complainant himself along with Mr.Salim S in the capacity of guarantor approached in the opposite party and requested for extending financial facility for purchase of a Bajaj 3 wheeler. Financial facility of Rs.3,61,511/- was extended which included principal of Rs.1,60,000/- + interest of Rs.2,01,511/- for 81 months with an EMI of Rs.4834/- (Loan tenure 60 months which got extended to 81 months due to extension of moratorium and restructuring of loan EMIs).
3. For remittance of EMIs the complainant opted one of the repayment mode by way of cash. Complainant understood that prompt repayment of loan installments on time without any delay or default ie, on or before 7th of respective month was the core essence of the loan agreement. The subject vehicle is a security to the said loan and is duly hypothecated to the opposite party till closure of the loan.
4. Covid 19 pandemic situation as completely shaken the entire nation as a result of which Reserve Bank of India came up with two master circulars dated 27.03.2020 and 22.05.2020 which permitted the lending institutions to grand a moratorium on payment of all installments of loan falling due between 01.03.2020 to 31.05.2020 which was extended till 31.08.2020.
5. As on 13.03.2023 the complainant has partially remitted Rs.1,46,007.31 towards loan EMIs and Rs.348/- only towards EMI default charges and is in EMI outstanding of Rs.18,348.69/-, Rs.21,888/- towards EMI default charges + late payment penalty along with future EMI payable of Rs.1,97,155/-. Further Rs.350/- for EMI bounce charges and late payment penalty charges are levied as per the agreed terms and condition of loan agreement. The opposite party have taken its best all possible efforts intimating the complainant to clear the outstanding loan dues got hand over the peaceful possession of the vehicle to the opposite party as per the agreed terms and conditions of the loan agreement in order to avoid taking legal action but the complainant had not taken any steps or clearance of outstanding due. Hence, informed complainant to close the loan account on remittance of Rs.3,17,096/- and also informed complainant that in failure to remit the net outstanding amount to surrender the subject vehicle to the opposite party. Even after the said intimation the complainant not taken any steps to close the said loan and does not objected the same.
6. Since the complainant availed the loan facility for a three-wheeler commercial vehicle for commercial purpose, the complainant is not a consumer as defined under consumer Protection Act. There is no deficiency in service from the side of opposite parties, hence the complaint may be dismissed.
7. Points for determination are:-
- Whether there is any unfair trade practice or deficiency in service from the part of opposite parties as alleged?
- Whether the complainant is entitled to get the relief as prayed for in the complaint?
- Reliefs and cost?
8. Evidence in this case consists of oral evidence of PW1 and Ext.A1 on the side of complainant and oral evidence of RW1 and Ext.B1 to B7 on the side of opposite parties. The counsel appearing for opposite parties filed notes or arguments. Heard the complainant.
9. Point No.1 and 2
PW1 is the complainant. He filed an affidavit in tune with the complaint and got marked Ext.A1.
10. RW1 is the legal manager of opposite party. He filed an affidavit in tune with the version and got marked Ext.B1 to B4, Ext.B5 to B7 marked with consent.
11. The complainant’s case is that after availed a loan from opposite party, while the repayment was going on within the period of its tenure, when the complainant approached the opposite party for foreclosure of the said loan it was being demanded excess amount from the complainant as Rs.1,70,000/- on October 2022 after repayment of 31 installments was Rs.1,49,875/- to the opposite party. Moreover the opposite party did not provide covid 19 moratorium benefits to the complainant and they besides obtained Rs.10500/- as cheque bounce charges for 30 times @ Rs.350/- and obtained Rs.1078/- from the complainant as late payment penalty during the period of moratorium. During different months the opposite party had obtained an amount of Rs.8720/- as late payment penalty from the complainant without any explanation. Alleging unfair trade practice and deficiency in service on the side of opposite parties the complainant filed this complaint for refund of the above said amount from the opposite parties and also for directing the opposite parties for allowing the complainant foreclosing the loan with them by receiving legally acceptable balance amount from the complainant.
12. The opposite parties contented that though the complainant was having knowledge regarding the date of repayment on every month, it was not complied within the said period, but repaid after due date of the EMI. According to the opposite parties the complainant agreed the tenure of loan was extended for 81 months and as per the said terms the complainant is liable to repay the principal closing balance as on 60th months EMI stood at Rs.79,901/- and by retaining the complainant cash flow maintaining to Rs.4,834/- per month the amount of Rs.79,901/- + interest was apportioned effective 61st EMI onwards which gets end on 81st EMI to zero principal because of extending moratorium for April to August 2020 EMIs and rescheduling the May 2021 EMI. The opposite parties further contented that the complainant is not a consumer as defined in Consumer Protection Act, since he has availed the loan facility for purchasing a vehicle for commercial purpose.
13. Admittedly the complainant had availed the loan of Rs.1,60,000/- from the opposite party for a period of 60 months. As contented by the opposite party it was enhanced for a period of 81 months which is evidented from Ext.B3. It is also alleged by the complainant that when he approached the opposite party for foreclosure of the loan during October 2022 ie, after repaying the said loan half of the tenure, the opposite party demanded Rs.1,70,000/- as outstanding amount. It is contented by the opposite party that the tenure of the loan extended from 60 months to 81 months due to covid 19 moratorium for the period from April 2020 to August 2020 and May 2021(for 6 months) provided to the loanees as directed by RBI which was availed by the complainant also. In this juncture it is to be noted that, as Ext.B5 loan agreement executed between complainant and opposite party the total amount to be paid as principal + interest is Rs.2,90,040/-. But as per Ext.B4 the rescheduled chart of repayment, the total repayment amount for the loan of Rs.1,60,000/- is Rs.3,61,511/-. The difference between the said amount is Rs.71,471/-. As per the extended period the amount to be paid as excess for 6 months moratorium is Rs.71,471/-. It is not logically to consider the 6 months moratorium period to an extended period of 21 months and its EMI amount along with accrued interest calculated is also not justifiable.
14. In the circumstances stated above on scrutinizing the entire documents it reveals that the account reflecting in repayment schedule considering the circular issued by RBI is not tally with the terms of the same. Accordingly we constrained to take a view that there is unfair trade practice and deficiency in service from the part of the opposite parties for rescheduling the EMIs. The contention regarding the purchase of vehicle for commercial purpose is not taking for discussion as it is mentioned in the application of loan itself that the complainant is a driver by profession and during reexamination he clarified that it is the only income for his livelihood derived from driving the vehicle. Hence the complaint is maintainable and as found deficiency in service on the side of opposite parties the complaint is liable to be allowed. Though the complainant is seeking refund of a total amount of Rs.20,298/- as cheque bouncing charge, late payment penalty etc in Ext.B4 bank statement except the amount of Rs.6537.31/- being the other receivables and Rs.348/- being cheque bouncing charge the remaining heads of amount was shown as over dues including Rs.8752/- as cheque bouncing charge. Hence the complainant is liable to refund only the said amount of Rs.6537.31/- from the opposite parties. The complainant is also entitled to preclosure of the loan account as per the tenure of loan agreement executed between the complainant and opposite party considering the extended period of moratorium for 6 months with accrued interest for the outstanding amount at the time of moratorium period. These points are found accordingly.
15. Point NO.3
In the result complaint stands allowed in part.
A. opposite parties 1 and 2 are jointly and severally directed to repay Rs.6537/- (Six thousand five hundred and thirty seven only) to the complainant within one month of receipt of this order, failing which the said amount shall carry an interest @ 8% per annum from the date of complaint ie, 12.01.23 till realization.
B. Opposite parties are directed to allow the complainant to preclosure of the loan account as per the tenure of the loan agreement shown in Ext.B5 considering the extended period of 6 months moratorium with accrued interest for the outstanding amount at the time of moratorium.
C. complainant is entitled Rs.2,000/- (Two thousand) as cost of proceedings from opposite parties.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30th day of June, 2023.
Sd/-Smt. P.R. Sholy (President in Charge)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Shaji S (Complainant)
Ext.A1 - Copy of statement of account
Evidence of the opposite parties:
RW1 - Sri.Nikhil Narendra Nath (Witness)
Ext.B1 - Lawyers notice
Ext.B2 - Letter dtd.23.05.2020
Ext.B3 - Repayment schedule
Ext.B4 - Rescheduled chart of repayment
Ext.B5 - Loan agreement
Ext.B6 - Letter dtd.26.10.2020
Ext.B7 - Loan foreclosure statement dtd.15.03.2023
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
