Complainant Bhuvnesh Sharma through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite party be directed to continue previous loan on same terms and conditions by giving death benefits or waive excess rate of interest, excess installments charged in new loan, document charges and pay Rs.20,000/- as mental pain and suffering and Rs.10,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that his father late Sh.Parshotam Kumar has taken loan of Rs.7,00,000/- on hire purchase basis for purchasing Typper Tata LPT 2515 from opposite party @ 16% per annum vide customer No.2809898. The loan amount was repayable in 47 installments of equal amount of Rs.20,142/- each. His mother Smt.Sunita Devi was co-borrower/Guarantor. His father was paying installments regularly, but unfortunately his father died on 1.4.2015. His father being loanee was consumer of opposite party as loan was taken for purchasing Tipper for earning livelihood. The loan was sanctioned in November 2013 and installment was started from 01.01.2014. After the death of his father, he and his mother Sunita Devi paid installments in time in April 2015 but it was not decreased from loan amount and after that Rs.61,000/- was paid as cash but amount credited only Rs.55,402/- and Rs.5598/- was deducted as OD charges. The payment was of 16th to 18th installment. He and his mother informed the death of Parshotam Kumar to the opposite party and at that time the amount standing was Rs.5,08,679/- and after 18th installment payment, it was Rs.4,81,875/- as per installment schedule. He came to know after his father’s death that loan amount was not secured by insurance policy. The opposite party failed to provide insurance cover of the loan amount. It is deficiency in service. He has next pleaded that the opposite party misrepresented him that some document are required to transfer the loan amount in his name and his mother who is already mentioned as co-borrower and said that other conditions of loan will remain the same but surprisingly it came to know that loan was not transferred, but fresh loan agreement was executed and loan amount was increased to Rs.4,99,169/- instead of Rs.4,81,783/-. The amount is payable in 32 installments and rate of interest was also increased to 18% P.A. The opposite party fraudulently, illegally, by concealing facts regarding increasing of rate of interest, number of installments also increased from remaining 29 to 32. However installment is decreased from Rs.20,142/- to Rs.19,755/- i.e. Rs.387 less than earlier only to cover the frauds. He and his mother were already in shock due to death of earning member of family. The opposite party committed fraud, breach of good faith, running unlawful activities opposed to Public Policy. If it multiply remaining installments with the amount, the difference will be clearly visible i.e. 20142 x 29 = 584118 and 19755 x 32 = 6,32,160/-, meaning thereby that the complainant has to pay Rs.49002/- more on the excuse of processing charges etc. The opposite party is cheating the consumer in a big way. He is student and does not know the illegalities, fraud being committed by opposite party. He has next pleaded that the opposite party has illegally sanctioned fresh loan when there was co-borrower living and paying the due amount. The opposite party has also changed rate of interest, installment amount, number of installments, increased charged again process and documents charges, no-recognizing of installments paid, non-payment of rebate, uninsured loan thus deceived him. The opposite party is guilty of cheating, deficiency in service, guilty of monopolistic practice. He requested the opposite party not to change the previous loan terms and conditions and refund or adjust the installments and excess amount charged but the opposite party has not paid any heed to his request and his mother. Hence this complaint.
3. Upon notice, the opposite party appeared and filed their written reply through their counsel by taking the preliminary objections that the complaint is not maintainable; this Hon’ble Forum has no jurisdiction to entertain, try and decide the present complaint. Actually the complainant himself alongwith Co-borrower namely Smt.Sunita Devi approached to the opposite party and requested for grant of loan/financial assistance with regard to the Vehicle Make Tata LPT 2515 Model TC EX BS II. The complainant and Co-borrower also gave assurance to the opposite party that they will abide by all the terms and conditions, on which loan may be granted to complainant by the opposite party. Pursuant to the said request of the complainant and Smt.Sunita Devi, the opposite party has granted a loan of Rs.4,99,169/- and a loan agreement bearing no.XVFPPVF00001430999 dated 17.6.2015 was entered into between the opposite party as “the Lender” and the complainant as borrower and Smt.Sunita Devi as Co-Borrower with their mutual consent. That as per the terms and conditions envisaged in the loan agreement, the petitioner agreed to repay the amount financed alongwith up-to-date interest and finance charges and the same was payable by the complainant in 32 monthly installments, commencing from 10.7.2015 and ending on 18.02.2018 as per the schedule of payment mutually agreed between the parties with their free will at the time of execution of loan agreement. The loan amount amounting to Rs.4,99,169/- has already bee disbursed on 17.6.2015 and the complainant has been paying the monthly installment to the opposite party as per its schedule from the last one and half year back and he never objected for the same except from the filing this false complaint. The complainant cannot be allowed to blow hot and cold in the same breath and to discard the terms of the agreement entered in between him and opposite parties. Hence the present complaint is misuse of process of law and is liable to be dismissed; the complaint is bad for non-joinder and misjoinder of necessary parties and no cause of action accrued to the complainant against the opposite party, at any stage. On merits, the same averments have been re pleaded while denying and refuting the other allegations made in the complaint and lastly praying for its dismissal with costs.
4. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1 alongwith other documents Ex.C2 to Ex.C12 and closed the evidence.
5. Counsel for the opposite party tendered into evidence affidavit of Vikal Sharma attorney of M/s.Cholamandalam Investments and Finance Co. Ltd. Ex.OP1 alongwith other documents Ex.OP2 to Ex.OP7 and closed the evidence.
6. We have thoroughly examined the available documentary evidence as produced on records so as to statutorily interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants in the back-drop of arguments duly put forth by the respective learned counsels for the present contestants. We find that the present dispute has arisen on account of the OP financers’ cancelling the continuing Truck Loan and instead sanctioning an enhanced loan with varying but stringent terms and conditions at the death of the principal borrower (father of the complainant) at the face of the fact that his mother Sunita Devi, the other co-borrower was very much alive and paying the repayment loan instalments. Further, the OP financers had failed to cover the loan amount by providing life cover to the deceased borrower and also provided no ex-gracia rebate etc to his surviving legal heirs so as to facilitate them to stay continued with the Truck Loan repayment and instead created hindrances by putting forth its arbitrary demands of arbitrarily enhanced balance outstanding amount resulting into the instant dispute under adjudication.
7. The OP financers have instead alleged the instant dispute to be the one pertaining to settlement of accounts (and not a consumer dispute) that bars the forum’s jurisdiction. We however find that that the matter of account-settlement has been collateral to the prime consumer-dispute of unscrupulous exploitation of the consumer’s subservient position and as such we are inclined to set-aside the OP’s first objection of lack of jurisdiction along with the second objection of presence of the ‘arbitration-settlement’ clause in the loan agreement since the instant consumer-adjudication has been an alternative remedy preferred ahead of the additionally available remedy of initiation of arbitration proceedings.
8. The complainant’s case stand sufficiently and satisfactorily proved through the documentary evidence produced by him by way of his affidavit Ex.C1 deposing the contents of the complaint; Ex.C2 - copy of the borrower’s death certificate; Ex.C3 to Ex.C7 – copies of the loan a/c statement for different periods of time duly exhibiting levying of penalty and other arbitrary charges etc.; and lastly, Ex.C8 to Ex.C12 – copies of the legal loan documents proving the sanction and alleged alteration of loan along with its terms etc.
9. On the other hand, the OP financers have produced its affidavit Ex.OP1 by Vikal Sharma Attorney duly deposing the allegations and other contents of the written statement etc; Ex.OP2 to Ex.OP4 – the copies of authority & incorporation i.e., the pre-requisites to prosecute its defense etc; Ex.OP5 to Ex.OP7 – copies of the fresh loan agreement and the a/c statements of the two respective loans in succession proving that the fresh loan was sanctioned during the pendency of the first continuing loan along with levying of arbitrary penalty and other charges etc amounting to deficiency in service, unfair trade practice resulting into exploitation of the subservient position of the legal heirs of the deceased borrower including the present complainant borrower and that lines them up to an adverse statutory award under the applicable Act. The necessity and gaping variances between the terms of the successive term-loans unnecessarily financing the same vehicle twice have been somehow ignored to be explained vides additional documents. We can understand the non-availability of loan and other security documents etc with the subserviently positioned complainant but its non-production on complaint-proceedings (by the OP financers) does raise scope of an adverse discretional judicial view and subsequent award. However, it be reduced to writing that the OP financers have failed to produce some cogent evidence to prove its ‘bald’ claims of non-compliance and default and piles of arrears outstanding in the complainant’s loan a/c and also its other ‘bald’ allegations of jurisdiction, arbitration and commercial purpose etc. Further, the present remedy as availed under the CP Act, 1986 being an alternative/additional remedy by virtue of its section ‘3’ shall be duly available even at the face of an otherwise accepted ‘arbitration’ agreement.
10. Lastly, in the light of the all above, and the litigants’ exhibited display of non-rebuttal of the un-pressed mutual/inter-se allegations lead to a somewhat acquiesced situation, and thus we are of the considered opinion that the present complaint shall be best disposed of by directing the OP financers to set-aside the sanction of the second successive loan and hypothetically transfer all its repayment deposits into the first closed loan on the documented terms & conditions by re-continuing and re-fabricating the same and also by reversing all its arbitrarily levied penalty/charges etc in the loan accounts within 30 days of the receipt of the copy of the present orders otherwise the so payable amount shall attract interest @ 9% PA from the date of orders till actual payment. The parties shall however bear their own expenses, here.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
April 24, 2017 Member.
*MK*
