D.o.F:5/6/2010

D.o.O:25/7/2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                         CC.NO. 135/10

                         Dated this, the 25th   day of July 2011

PRESENT:

SRI.K.T.SIDHIQ                                        : PRESIDENT

SMT.P.RAMADEVI                                 : MEMBER

SMT.BEENA.K.G                                   : MEMBER

Abdulla Kunhi.T.M,

S/o Late Mohammed Haji,

Thaivalappu, Neerchal House,                             : Complainant

Alampady PO, Kasaragod.

(Adv.K.Abdul Nasir,Kasaragod)

Branch Manager,

Shriram City Union Finance Ltd,                           :  Opposite party

Kasaragod

(Adv.Srijith.K,Kasaragod)

                                                                ORDER

 SMT.P.RAMADEVI      : MEMBER

    The  facts  of the  complainant in brief are as follows:

   That the complainant purchased a Hero Honda Passion plus Motor cycle bearing reg.No.KL.14-G/1869 under the consumer loan purchase scheme from the opposite party on 17/1/2007.  The complainant paid `12500/- as margin money to the opposite party and the opposite party has granted a loan of `37000/-.  At the time of loan transaction the opposite party obtained 36 cheque leaves for  `1430/- each from the complainant towards the repayment of loan amount.  The opposite party promised that they will handover the vehicular documents within one month. But the opposite party did not do so.  After repeated demands the opposite party gave the complainant notary attested copy of the RC.  After completing instalments on 12/12/2009 the complainant approached the opposite party for his vehicular documents and  the opposite party told that two cheques out of the 36 cheques were dishonoured and demanded 3860/- as the principle and interest of said 2 instalments.  The complainant paid the amount of `3860/- and the opposite party promised that the vehicular documents will be handed over to the complainant within one week after endorsing the  cancellation of hypothecation.  But the opposite party did not keep their promise.   On 23/1/2010 the complainant approached opposite party.   Again they demanded ` 2860/- for loan termination and hypothecation cancellation charges.  The complainant was constrained to pay the amount.  But after receiving the amount also the opposite party did not give the vehicular documents so far.  The opposite party collected ` 2860- from the complainant and illegally and unlawfully retained the vehicular documents and spare key of the  vehicle  even after payment of the entire amount.  Hence this complaint  is filed for necessary relief.

2.  After due service of the notice the opposite party appeared and filed  version through their  counsel.   In the  version  opposite party admitted the availing the loan of `37000/- by the complainant . But the date of granting of  loan  is 18/1/07 instead of 17/1/07 as pleaded by the complainant.  The opposite party also admitted the  giving of 36 cheque leaves and for an amount of `1430/- each.  The opposite party had denied all the allegations made against them by the complainant in the complaint .  The opposite party denied that they have never given the notarized copy of the RC.    The opposite party submits that they are not in possession of the vehicular documents and also submitted that as per motor vehicles Act the owner of the vehicle has to produce the vehicle before the registering authority and they will issue the   RC to the registered owner of the vehicle, subject to section 51 lien endorsement of the financier in registration certificate at the time of registration.  The opposite party further submitted that  out of 36 cheques issued by the  complainant  two of them  bounced and  on repeated demands the complainant paid  `3860/-.  On payment of the same  opposite party had demanded the bounce  charge and ODC.  The opposite party also admits the  payment of `2860/-.  According to opposite party it is towards pending instalments and not towards loan termination and hypothecation cancellation charges.  Hence there is no  merit in  the  complaint and the same is liable to be dismissed.

3.  In this case the complainant and opposite party filed proof affidavit and documents Exts.A1&A2 and ExtsB1&B2 were marked.  On going through the evidence on record and perusal of documents the following points are raised for consideration.

4.  Whether there is any deficiency in service on the part of the opposite party  and if  so what is the relief?

5.   The  dispute is with regard to the payment of over due charges.  Both parties admits that out of 36 cheques  2 of  them were bounced, and for that the complainant has paid `3860/-.  For the  two  cheques bounced  the complainant has to pay `2860/-( ie 1430x2) as instalment charges.  He paid `3860/-.  That means the complainant had  paid the entire loan  amount with over due charges.  After that the opposite party collected ` `2860/-.  According to the complainant the above said amount was collected  by opposite party for loan termination  and hypothecation cancellation charges.  But according to opposite party the amount of `2860/- was collected towards ODC and cheque bounce charges.  Here the opposite party already received the cheque  bouncing charges and ODC for 2 cheques.  The opposite party has no case  that more than 2 cheques were bounced.  According to opposite party overdue charges were calculated from the date of bouncing the cheques.  But they have to collect the overdue charges when it was  due.  The opposite party has not adjusted the overdue charges to the next instalment  when that instalment is paid.  That means they have waived their  right to claim additional finance charges.  The calculation of additional finance charges for the whole period without  claiming the same whenever it is fell due is against the law of appropriation  of interest and it is legally impermissible  Moreover the opposite party is bound to cancel the hypothecation and termination of loan after receiving the amount of loan and  also bound to  handover the vehicular documents and to cancel without collecting any hypothecation charge from the complainant.  Hence it is clear that the amount of `2860/- collected by the opposite party from the complainant is not towards the overdue charges but towards the cancellation of hypothecation.    It is illegal.  Hence the opposite party is  liable  to return  back the said amount of ` 2860/- to the complainant.  Here the complainant failed to handover the documents and also failed to cancel the loan hypothecation.  That itself shows that there is deficiency in  service on the part of opposite party.  

6.  Another thing is that  the complainant is entitled to get the vehicular documents after paying the entire loan amount.  Here the complainant received only the notarized  copy of RC from the  opposite party.  According to the complainant the RC  is in custody of the opposite party.  But  opposite party is not admitting the same.  The forum cannot insist the opposite party to handover the RC to the complainant since the opposite party is denying the custody of RC.

   Therefore the complainant is allowed and the opposite party is  directed to return back the amount of `2860/- to the complainant which the opposite party  illegally collected from the complainant and also to  handover the  loan termination letter and spare key to the complainant with a cost of  ` 3000/-( Rupees three thousand only).  The time for compliance is 30 days from the date of receipt of copy of order failing which opposite party shall further liable to pay interest @12% per annum for ` 2860/-  from  the date of complaint till payment.  Further on application by the complainant necessary directions will be  issued to the  concerned  registering  authority to issue a duplicate RC after cancelling the endorsement of HP favoring the opposite party  .

Exts:

A1-& A2- Cash receipts

B1-copy of statement of account

B2-loan cum hypothecation agreement

MEMBER                                         MEMBER                                                      PRESIDENT

eva