Tamil Nadu

South Chennai

34/2010

Shanmuga Sundaram - Complainant(s)

Versus

HDFC Bank Ltd., Retail Asset Division - Opp.Party(s)

V.Balaji

27 Sep 2018

ORDER

                                                                        Date of Filing  : 27.01.2010

                                                                          Date of Order : 27.09.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.34/2010

 

DATED THIS THURSDAY THE 27^TH DAY OF SEPTEMBER 2018

                                 

Shanmuga Sundaram,

S/o.  T. K. Subramaniam,

No.6/1, Dilli Babu Street,

Govindaraj Nagar,

Poonamallee,

Chennai – 600 056.                                                      .. Complainant.                                                      

 

    ..Versus..

 

HDFC Bank Limited,

Retail Asset Division,

Rep. by its Authorised Signatory,

No.72, II Floor,

86, Raja Annamalai Building,

Marshalls Road,

Egmore,

Chennai – 600 008.                                                    ..  Opposite party.

          

 

Counsel for complainant      :  M/s. V. Balaji & another

 

Counsel for opposite party   :  M/s. PASS Associates

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.75,000/- towards compensation for mental agony with cost of Rs.5,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:

The complainant submits that he purchased a two wheeler TVS 50 after availing a loan of Rs.25,000/- from the opposite party. The complainant submits that the said loan amount shall be repaid in 24 equal monthly instalments at the rate of Rs.1,038/- starting from 25.04.2006.   The amount towards EMI shall be withdrawn by the opposite party through ECS.  The complainant submits that due to the change of constitution of the bank the opposite party did not withdraw the last 3 instalments.  The complainant submits that on 15.06.2009, when he parked the vehicle in front of Hotel Saravana Bhavan at Poonamallee, the vehicle was found missing.  Immediately, the complainant lodged a police complaint before the Inspector of Police. The complainant submits that he received a telegram from the opposite party in the evening of 15.06.2009 that the opposite party repossessed the vehicle.   On the next day, the complainant received a letter dated:16.06.2009 from the opposite party stating that he is liable to pay a sum of Rs.15,794/-.  The said letter gave following break up which reads as follows:

 

Principal outstanding                            Rs.      0.00

Late payment penalty charges              Rs.1,629.00

Cheque Bouncing charges                    Rs.2,000.00

Interest till date of repayment              Rs.       0.00

Prepayment charges @ 3% on

outstanding principal                           Rs.       0.00

Pending instalments, if any                  Rs.4,164.99

Refunds if any                                    Rs.0.00

Total amount payable                         Rs.7,793.99

The complainant further submits that as per the above letter, there is no principal outstanding.  The complainant submits that on 16.07.2009, he issued Advocate notice dated:16.07.2009 to the opposite party.  The opposite party sent a letter dated: 26.08.2009, in which it is stated that the two wheeler TVS 50 was sold.  The opposite party has unlawfully sold the vehicle and unlawfully enrich themselves out of the hard earned money of the complainant.  The act of the opposite party caused great mental agony.  Hence the complaint is filed.

2.      The brief averments in the written version filed by the  opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The opposite party states that the complainant  availed the vehicle loan from the opposite party.  The complainant was a chronic defaulter in repayment of loan amount.  Several reminders including notice were issued to the complainant ended in vain.  Hence the opposite party was constrained to repossess the vehicle after due intimation and thereafter, demand was made by the opposite party to settle the dues payable to the bank.   As such, the vehicle was repossessed on 15.06.2009 to till 26.08.2009 and the complainant has not taken any steps to settle the amount due to the opposite party bank even admitting that there is a default in payment of EMI.  There is no deficiency in service or unfair trade practice on the part of the opposite party.  After due auctioning the vehicle, this opposite party has given credit to the sale proceeds to the account of the complainant and the excess amount of Rs.1,567/- is directed to be collected from the opposite party bank.   The non production of HP cancellation under Form 35 and NOC from the bank clearly proves that the complainant has not settled the entire loan dues.  It is also submitted that the entire proceeding is nothing but abuse of process of Court and the complaint is liable to be dismissed with exemplary cost. 

3.   To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B9 are filed and marked on the side of the opposite party.

 

4.      The point for consideration is:

Whether the complainant is entitled to a sum of Rs.75,000/- towards compensation for mental agony with cost of Rs.5,000/- as prayed for?

 

5.      On point:-

        Both parties filed their respective written arguments. Perused the records namely the complaint, written version, proof affidavits, documents etc.  Admittedly, the complainant purchased a two wheeler TVS 50 after availing a loan of Rs.25,000/- from the opposite party.  Further the contention of the complainant is that the said loan amount shall be repaid in 24 equal monthly instalments at the rate of Rs.1,038/- starting from 25.04.2006.   The amount towards EMI shall be withdrawn by the opposite party though ECS.   But the complainant has not filed any document to prove the loan and its recovery by way of ECS.   Further the contention of the complainant is that due to the change of constitution of the bank the opposite party did not withdraw the last 3 instalments.   The complainant also has not been given any notice by the opposite party.  But the complainant has not produced the statement of accounts to prove whether he is having sufficient bank balance to withdraw the instalment by way of ECS.  The complainant  also has not produced any document to prove that the change in constitution of the bank resulting non withdrawal of ECS amount (ie) EMI amount through ECS for 3 months. But  on a careful perusal of records, it is seen that the total EMI pending is Rs.4164.99/-.  On calculating the EMI it should come only Rs.1,038 x 3 =Rs.3,114/-.  Further the contention of the complainant is that on 15.06.2009, when he parked the vehicle in front of Hotel Saravana Bhavan at Poonamallee, the vehicle was found missing.  Immediately, the complainant logged a police complaint before the Inspector of Police but no document filed in this Forum.   Further the contention of the complainant is that he received a telegram from the opposite party in the evening of 15.06.2009 as per Ex.A1 that the opposite party repossessed the vehicle.   On the next day, the complainant received a letter as per Ex.A2 from the opposite party stating that he is liable to pay a sum of Rs.15,794/-.  The said letter gave following break up which reads as follows:

Principal outstanding                            Rs.      0.00

Late payment penalty charges              Rs.1,629.00

Cheque Bouncing charges                    Rs.2,000.00

Interest till date of repayment              Rs.       0.00

Prepayment charges @ 3% on

outstanding principal                           Rs.       0.00

Pending instalments, if any                  Rs.4,164.99

Refunds if any                                    Rs.0.00

Total amount payable                         Rs.7,793.99

proves that there is no principal outstanding.  Hence the claim of Rs.1,629/- towards late payment,  penalty charges, Rs.2,000/- towards cheque bounce charges does not arise; is not acceptable.   The total principal amount and the interest also calculated together and divided into 24 instalments termed as EMI.  The dues under various heads included the pending instalment, if any Rs.4164.99 establishes that the complainant has not paid the EMI properly and there are arrears in EMI.  Further the contention of the complainant is that on 16.07.2009, he issued Advocate notice to the opposite parties as per Ex.A3.  The opposite party sent a letter vide Ex.A4 dated: 26.08.2009, in which it is stated that the two wheeler TVS 50 was sold.  From the date of missing of the vehicle i.e. 15.06.2009 to 26.08.2008, the complainant has not taken any steps to settle the due i.e. EMI to the opposite party.   The complainant is claiming a sum of Rs.75,000/- towards compensation for mental agony and cost of Rs.5,000/-.

6.     The contention of the opposite party is that admittedly the complainant  availed the vehicle loan from the opposite party.  The complainant was a chronic defaulter in repayment of loan amount.  Several reminders including notice were issued to the complainant ended in vain.  Hence the opposite party was constrained to repossess the vehicle after due intimation and thereafter, demand was made by the opposite party to settle the dues payable to the bank as per Ex.B8.   As such, the vehicle was repossessed on 15.06.2009 to till 26.08.2009 and the complainant has not taken any steps to settle the amount due to the opposite party bank even admitting that there is a default in payment of EMI.  There is no deficiency in service or unfair trade practice on the part of the opposite party.  After due auctioning the vehicle, this opposite party has given credit to the sale proceeds to the account of the complaint and the excess amount of Rs.1,567/- is directed to be collected from the opposite party bank.   The non production of HP cancellation under Form 35 and NOC from the bank clearly proves that the complainant has not settled the entire loan dues as such the dispute regarding settlement due and the seizure of vehicle cannot be questioned.  Considering the facts and circumstances of the case this Forum is of the considered view that the complainant was in arrears of EMI resulting the seizure of the vehicle and the complainant is not entitled to any relief sought for in the complaint.  Hence this complaint has to be dismissed. 

In the result, this complaint is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 27^th day of September 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	15.06.2009	Copy of telegram issued by the opposite party
Ex.A2	16.06.2009	Copy of letter of the opposite party
Ex.A3	16.07.2009	Copy of Advocate notice
Ex.A4	26.08.2009	Copy of  letter of the opposite party

 

OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	10.04.2006	Copy of Loan Cum Hypothecation Agreement
Ex.B2	15.06.2009	Copy of Pre repossession intimation to police station
Ex.B3	15.06.2009	Copy of Authorization letter to repossession of service
Ex.B4	15.06.2009	Copy of Post repossession of intimation to police station
Ex.B5	15.06.2009	Copy of inventory of items in vehicle
Ex.B6	15.06.2009	Copy of telegram to Inspector of Police and complaint
Ex.B7	20.07.2009	Copy of indemnity for buying repossessed two wheeler
Ex.B8	16.06.2009	Copy of notice to the opposite party
Ex.B9	26.08.2009	Copy of notice to the opposite party from the complainant to pay the balance amount

 

 

 

MEMBER –I                                                                      PRESIDENT