KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. FA No. 658/2009 JUDGMENT DATED: 23-02-2010 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS1. Divisional Manager, Manappuram General Finance and Leasing Ltd., Kalpetta, Kalpetta P.O., Wayanad. 2. Managing Director, Manappuram General Finance and Leasing Ltd., Manappuram House, Valappad P.O., Thrissur. (Rep. by Adv. Sri. J.S. Asok Kumar) Vs RESPONDENT Gopalakrishnan Nair, S/o Krishnan Nair, Puthiyapadikkal Veedu, Pulpalli P.O., Thazheyangadi, Batheri. (Rep. by Adv. Sri. A. Abdulla Sait) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The appellants were the opposite parties in CC No. 06/2009 on the file of CDRF, Wayanad, Kalpetta. The complaint therein was filed by the respondent as complainant alleging deficiency of service on the part of the opposite parties in collecting excess amount by way of interest and service charge. The complainant also alleged that the opposite parties filed false complaint against the complainant before the Judicial First Class Magistrate Court, Kalpetta as CC 188/08. Thus, the complainant claimed a total of Rs. 25,000/-by way of compensation. The opposite parties entered appearance before the Forum below and filed written version denying the alleged deficiency of service. They contended that the complainant defaulted payment of the loan amount and that the criminal case was filed against the complainant for the default on the part of the complainant in remitting the monthly instalments due under the loan transaction. Thus, the opposite parties prayed for dismissal of the complaint in CC 06/2009. 2. Before the Forum below, Exts. A1 to A3 series and A4 documents were produced and marked on the side of the complainant. No evidence was adduced from the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th July 2009 directing the opposite parties to refund a sum of Rs. 10,462/- which the opposite parties collected by way of excess amount from the complainant and to pay compensation of Rs.5,000/- with cost of Rs. 1,000/-. They were also made liable to pay interest at the rate of 12% per annum on the excess amount of Rs. 10,462/- from 22-04-2005 till the date of payment. Aggrieved by the said order, the present appeal is preferred by the opposite parties therein. 3. We heard the Counsel for the appellants and the respondent. The learned Counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was default on the part of the respondent in making the monthly instalments due to the opposite parties under the hire purchase agreement entered into between the complainant and opposite parties. It is further submitted that the order passed by the Forum below directing refund of Rs. 10,462/- with compensation of Rs. 5,000/- cannot be justified as the complainant was a defaulter in paying the monthly instalments due under the hire purchase agreement. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the respondents/complainant supported the impugned order passed by the Forum below. He much relied on the payments effected by the respondent/complainant on various dates covered by Ext.A3 series of receipts and further submitted that the entire amount due under the loan transaction was paid by the complainant by 22-04-2005 and that the opposite parties collected excess amount by way of interest and service charge. Thus, the respondent prayed for dismissal of the present appeal. 4. The points that arise for consideration are: 1. Whether there was any deficiency of service on the part of the appellants/opposite parties in their failure to close the loan transaction on 22-04-2005? 2. Whether the appellants/opposite parties can be justified in filing the criminal complaint as CC 188/08 on the file of Judicial First Class Magistrate Court, Kalpetta? 3. Is there any sustainable ground to interfere with the impugned order dated 30-07-2009 passed by CDRF, Wayanad, Kalpetta in CC No. 06/09? 5. Point Nos.1 to 3: Admittedly,the respondent/complainant availed loan from the appellants/opposite parties on 22-07-2004 on the security of the Motorcycle bearing Regn. No. KL 12 B 8392. A loan agreement was also entered into between the appellants and the respondent. But, the said loan agreement has not been produced by the appellants/opposite parties who were having the said loan agreement in their possession. According to the respondent/complainant he availed loan of Rs. 29,800/-. But, the appellants/opposite parties would contend that sum of Rs. 34,000/- was availed as loan. But, the appellants/opposite parties have not adduced any acceptable evidence to substantiate their case that the respondent/complainant availed Rs. 34,000/- by way of loan. The Forum below considered the documents produced from the side of the complainant and came to the conclusion that the complainant had only availed a loan of Rs.29,800/-. The Forum below had also perused A4 deposition of the opposite party who filed criminal complaint as CC 188/08 before the Judicial First Class Magistrate Court, Kalpetta. In the said complaint, the opposite party was cross examined and in his cross examination it was revealed that the respondent/complainant therein had only availed loan of Rs. 29,800/-. It is also to be noted that the complainant has categorically averred that the first opposite party issued a DD for Rs. 29,800/- for the loan availed on 22-07-2004. The case of the appellants/opposite parties that they granted a loan of Rs.34,000/- to the respondent/complainant cannot be believed or accepted. So, the finding of the Forum below that the respondent/complainant availed a loan of Rs. 29,800/- from the appellants/opposite parties on 22-07-2004 is to be upheld. 6. The definite case of the respondent/complainant is that he availed the loan of Rs. 29,800/- agreeing to pay interest at the rate of 12% per annum. The appellants/opposite parties have got a case that the rate of interest was 13% per annum. But, there is nothing on record to support the case of the appellants/opposite parities that the rate of interest was 13% per annum. The appellants/opposite parties were having documents with them evidencing the agreed rate of interest on the loan amount. But, the appellants/opposite parties miserably failed in producing those documents. It is to be noted that the opposite parties were given sufficient opportunity to adduce evidence before the Forum below in CC 06/09. But, they did not opt to avail those opportunities. Thus, the Forum below can be justified in holding that the agreed rate of interest was 12% per annum. The said finding made by the Forum below is accepted. 7. Ext.A1 is the HP/lease instalment payment book issued by the opposite parties to the complaint. A1 document would show that the loan amount ought to have been remitted by way of monthly instalments. The first 24 instalments had to be paid at the rate of Rs.1,405/- and the next 12 instalments at the rate of Rs. 1,326/-. The total instalments were fixed at 36. The appellants/opposite parties have also agreed that the loan transaction could be closed at any time by remitting the amount due to the opposite parties. The case of the appellants/opposite parties that the respondent/complainant is bound to remit the entire amounts covered by 36 instalments cannot be accepted. The payment of the monthly instalments would arise only if the lonee preferred to make payments towards the loan amount by way of instalments. There can be no doubt about the fact that the respondent/complainant being the lonee is at liberty to close the loan transaction by remitting the entire loan amount with the interest accrued thereon as on the date of closure. 8. Admittedly the loan was availed on 22-07-2004. The respondent/complainant who availed the said loan remitted Rs.1,985/- on 21-07-2004 by way of advance. It is to be noted that the first instalment of Rs. 1,405/- was due only on 22-08-2004. But, the complainant/lonee paid Rs. 1,985/- by way of advance payment. The complainant had also remitted a sum of Rs. 2,810/- on 29-09-2004 and a further sum of Rs. 2,500/- on 07-02-2005. The next payment was on 03-03-2005. The amount remitted on 03-03-2005 was Rs. 5,000/-. Subsequently, on 16-03-2005 the respondent/ complainant remitted another sum of Rs. 3,000/- and on 22-04-2005 the complainant remitted a sum of Rs. 25,832/- as per Ext.A3(5) cash receipt. Thus, the total amount paid by the respondent/complainant (lonee) as on 22-04-2005 was Rs. 41,127/-. 9. The entire 36 instalments would come to Rs. 49,632/-. The 36th instalment (last instalment) need only pay on 22-06-2007. But, without waiting up to 2007 the complainant/lonee remitted the entire amount with interest thereon by making total payment of Rs. 41,127/-. It is to be noted that by the said payment of Rs. 41,127/-, the lonee discharged the entire loan amount with interest accrued thereon. He also paid excess amount. The calculation of the interest on the loan amount has been correctly made by the Forum below. The finding of the Forum below that a sum of Rs. 10,462/- was collected by the appellants/opposite parties by way of excess amount is to be upheld. We do not find any mistake in the calculation made by the Forum below. Thus, the finding of the Forum below that the appellants/opposite parties collected an excess amount of Rs. 10,462/- from the respondent/complainant is to be upheld. Hence we do so. 10. There is no dispute that the appellant/opposite parties preferred a criminal complainant as CC 188/08 before the Judicial First Class Magistrate Court, Kalpetta. It is pertinent to note at this juncture that the said criminal complaint was initiated by the appellants/opposite parties at a time when the appellants had collected excess amount of Rs. 10,462/- from the respondent/complainant. There can be no doubt about the fact that the respondent/complainant had to face the criminal prosecution. He had to suffer inconvenience and mental agony on account of the unnecessary criminal litigation initiated by the appellants/opposite parties. There can be no doubt about the fact that the aforesaid actions of the appellants/opposite parties would amount to deficiency of service. Thus, the Forum below has rightly directed the appellants/opposite parties to pay a compensation of Rs. 5,000/- to the respondent/complainant. The Forum below is also perfectly justified in directing the appellants/opposite parties to refund the excess amount of Rs. 10,462/-. The cost of Rs. 1,000/- ordered by the Forum below is also just and reasonable. Thus, in all respects the impugned order passed by the Forum below is to be confirmed. The Forum below has considered all the relevant aspects of the case. In effect the Forum below had taken a lenient view in limiting the compensation at Rs. 5,000/-. The present appeal lacks bonafides and the same deserves dismissal. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order dated 30-07-2009 passed by CDRF, Wayanad, Kalpetta in CC 06/09 is confirmed. As far as the present appeal is considered, the parties are directed to suffer their respective costs. M.V. VISWANATHAN :JUDICIAL MEMBER VALSALA SARANGADHARAN: MEMBER Sr. |
