Date of filing : 30-03-2012
Date of order : 22 -02-2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.93/2012
Dated this, the 22nd day of February 2013
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT. K.G.BEENA : MEMBER
Haneefa Alias Muhammed Haneefa.A.M, : Complainant
S/o.Moideen Kunhi, H.No.2/472,
Oduthadukkam House, Kundamkuzhy.Po,
Bedakam Village, Kasaragod Taluk,
Rep. by his Power of Attorney Holder
Sri.Abdul Azeez. B.M, S/o.Moidu.B.M,
Anjam Mail House, Kolathur.Po. Kasaragod Taluk
(Adv.Babu Chandran.K, Kasaragod)
1. H.Mahaveer Chand, No.07, : Opposite parties
General Muthaiah Street, Ist floor,
Sowcarpet, Chennai.79.
(Adv.A.Balakrishnan Nair, Kasaragod)
2. Radhakrishnan, M.N.Financial Agencies,
Nullipady, Kasaragod Taluk.
(Exparte)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
Case of the complainant in brief is as follows:
Complainant is the RC owner of LMV Autorkishaw bearing Reg.No.KL-14/E 1162. He entered HP agreement with opposite party No.1 on 22-05-2007 through opposite party No.2. As per the stipulation in the agreement complainant ought to have paid 12 monthly instalments of Rs. 4298/-and the remaining 12 monthly instalments @ Rs.4050/- each. The opposite party No.1 retained the original RC book and one key of vehicle at the time of executing the loan agreement. Complainant has paid 20 monthly instalments through opposite party No.2 and the remaining were paid directly to opposite party No.1 as per the telephonic instruction of opposite party No.1. After paying the amount complainant asked the RC Book, key and HP clearance certificate. But Both opposite parties failed to met his demand. Hence this complaint is filed alleging deficiency in service on the part of opposite parties.
2. On receipt of notice opposite party No.1 filed version. Opposite party No.2 remained absent. Hence opposite party N o.2 had to be set exparte.
3. According to opposite partyNo.1 complaint is not maintainable before the Forum for want of territorial jurisdiction since the agreement in dispute had been executed at Chennai and as per clause 26 of the agreement Chennai Courts alone have jurisdiction to try any case arising out of the agreement.
4. On merits it is contended by opposite party No.1 that the complainant remitted 19 full instalments only and a part of 20th instalments that too in an irregular manner. As on 22-03-2012 the principal amount due is Rs.16,520/- and default charges due is Rs. 24,907/- thus the total due is Rs. 41,427/- together with compensation charges and expenses to the opposite parties. Hence the complainant is not entitled for the relief claimed and it is to be dismissed.
5. Both sides did not adduce any oral evidence. On the side of complainant Exts A1 to A7 and on the part of opposite party No.1. Exts B1 & B2 are marked. Both sides heard. Documents perused.
6. Whether the complainant is entitled for the relief claimed is the issue to be settled in this case.
7. The case of the complainant is that he has remitted all the 20 monthly instalments. But according to opposite parties 4 monthly instalments of Rs.4050/- is due from the complainant and he has remitted the instalments irregularly attracting late payment charges.
8. The contention of the opposite parties that the complaint is not maintainable before the Forum for want of jurisdiction is not acceptable. The 2nd opposite party carries on his business within the territorial jurisdiction of this Forum. Further the vehicle to which the loan is given by 1st opposite party is also registered in Kasaragod District. Hence this Forum has got ample jurisdiction to try the matter.
9. The further contention of the opposite parties is that as per the agreement executed between the complainant with them, they are the real owner of the vehicle and the complainant is only a hirer and as per the clauses in the agreement and therefore complainant is not entitled for the relief claimed. This contention is also not legally sustainable.
10. Ext.B1 is the copy of the so called hire purchase agreement. But on going through the recitals in the agreement it is seen that it is actually not a hire purchase agreement but only a loan agreement.
11. In case of hire purchase, the financier shall be the RC owner and the ownership passes to the hirer only after completing the repayment of hire nonies coupled with option to purchase the same by paying the option money. Further it is seen that hire purchase agreement executed is pertaining to a used vehicle of the which the complainant himself is the RC owner. When the complainant himself is the RC owner there is no question of executing a hire purchase agreement with respect to old, used vehicle. Therefore it is clear that the agreement executed between the complainant and opposite party is only loan agreement and not a hire purchase agreement. Hence none of the clauses applicable to a hire-purchase agreement is applicable to the instant case.
12. According to opposite parties a sum of Rs.24807/- is due from the complainant as on 31-3-2012 towards the default penal charges alone, in addition to 4 monthly instalments amounting to 4050 x 4= Rs.16200/-. But on going through the calculation statement it is seen that the opposite parties has not followed the law of appropriation of interest in computing the penal interest.
13. As per law of appropriation of interest, where the law allows interest on interest a payment should be applied first to discharge overdue interest and second to discharge interest and third to discharge principal. On going through the statement of account made in version, it is seen that a sum of Rs.24,807/- as on 31-03-2012 is calculated towards additional finance charges. As per the agreement 1st opposite party calculated the interest for the whole period of 24 months in flat rate of interest. It is seen from the statement of account made in the version that the opposite parties have collected the monthly instalments not according to the law of appropriation of interest. It is seen that they have collected only the monthly instalments eventhough the complainant is not paid the instalments on the dates specified for paying the monthly instalment as per the schedule of payment. Had they been entitled for any additional amount by way of penal interest or additional finance charges or overdue charges then such additional charges ought to have appropriated at first when the subsequent monthly instalments were paid That is the law of appropriation of interest. If so, a customer would be more vigilant in making the monthly payment punctually, so as to avoid payment of additional finance charges. Ignoring the over due charges if the opposite parties are collecting the subsequent instalments, the presumption is that they have waived or abandoned their right to collect additional finance charges or overdue charges and the demand for such charges at a later stage on a higher rate is nothing but an unscrupulous exploitation of the consumer.
14. In the instant case on hand the case of the complainant is that he had remitted all instalments. But according to opposite party 4 monthly instalments are pending due from him. The complainant did not produce any documents to prove that he has remitted all the monthly instalments. Hence we accept the contention of opposite party that 4 monthly instalments of Rs.4050/- is pending due from complainant. As per the calculation statement the said amount is due from 23-07-2009 onwards. In addition to that a sum of Rs.320/- is also due towards 20th instalment. The opposite parties are entitled for the said amount.
15. However, the calculation of penal interest @ 36% is unconscionable. We fix the interest @ 18% towards additional or penal finance charges.
Hence the complaint is allowed to that extent. Complainant is directed to pay Rs. 4050 x 4 = 16200 + 320 = Rs. 16520 with interest @ 18% from 23-08-2009 onwards to till date of payment within two months from the date of receipt of copy of order. On receipt of the said opposite party No.1 shall return the RC, original key of the vehicle and No Objection Certificate (HP Termination Letter) of the vehicle bearing No.KL-14 E 1162 to the complainant. Failing which on the request of the applicant with the evidence of the payment of the aforesaid amount necessary direction will be issued to the concerned Registering Authority. In that case opposite parties shall be further liable to pay a cost of Rs.4000/- also to the complainant.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1. 12-08-2011 Copy of Lawyer notice.
A2. Postal acknowledgement card
A3. 05-08-2004 Registration Particulars.
A4. Chart
A5.series Receipts
A6 Series Receipts.
A7. Special Power of Attorney
B1. Hire Purchase Agreement
B2. 30-10-2011.Reply notice.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
