IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> CC 121/09 DATED 09.07.2009<br /> ORDER<br /> <br /> Complainant Yogendra.B.S., S/o B.U.Sheshagiri, <br /> R/at Maragodu Village, Madikeri Taluk, Coorg District.<br /> (By Sri.S.Kumaraswamy, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Branch Manager, (Loans), ICICI Bank RAPG, Doksha Shetty Mansion, 1st Floor, 34/2, 3,4, Ramavilasa Road, <br /> Mysore-24.<br /> (By Sri.Gerald Castelino, Advcoate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.03.2009<br /> Date of appearance of O.P. : 20.04.2009<br /> Date of order : 09.07.2009<br /> Duration of Proceeding : 2 MONTHS 19 DAYS<br /> <br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant against the opposite party in brief is, that he is a customer of opposite party availed a vehicle loan of Rs.2,82,000/- under hypothecation agreement dated 07.02.2007. That he had agreed to repay the loan amount with interest in equal monthly installments of Rs.7,393/- each to be closed by 10.02.2011. He was regularly paying the monthly installments and had sent a D.D. for Rs.5,000/- on 03.12.2007 drawn on Canara Bank, Kodagu District in favour of the opposite party and was delivered to the opposite party on 04.12.2007. But, the opposite party after receipt of the said D.D. has not credited to his account and adjusted to the loan, but the opposite party on 10.12.2007 issued a notice to him to pay Rs.22,065/- with other unknown charges, which was not proper. As he could not manage smoothly with the opposite party, he decided to pre-close the loan account and thereby has repaid the entire amount due to the opposite party. But, the opposite party has recovered excess of Rs.11,196.49 towards unknown other charges and have not accounted for Rs.5,000/- received through D.D. and thereby the opposite party has recovered excess amount of Rs.16,196.49 and thereby has prayed for a direction to the opposite party to refund that amount with interest calling this service of the opposite party as deficient.<br /> <br /> 2. The opposite party has entered appearance through his advocate and filed version, admitting the loan advanced to the complainant and repayment with installments as stated by the complainant. But, has denied the receipt of the D.D. said to had been sent by the complainant and stated that the complainant has not proved the delivery of the D.D. by producing any copy of the letter etc., It is further contended that the complainant was not regular in paying the installments and therefore he became due in a sum of Rs.2,72,816.50 and they since did not receive the D.D. have recovered a sum of Rs.2,50,000/- once, Rs.20,317/- on another occasion waiving Rs.2,500/- and thus denying all other allegations of the complainant has prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant and opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced a copy of the receipt for having taken a D.D. for Rs.5,000/- in favour of the opposite party from Canara Bank on 03.12.2007, the receipt for having had sent that D.D. to the opposite party through RPAD and the acknowledgement card proving that the opposite party has taken delivery of the article sent through registered post on 04.12.2007. He has got marked the copy of the legal notice he got issued to the opposite party and demand notice that opposite party sent to the complainant with a copy of the statement of opposite party to show as if the opposite party has charged excessive interest and other unhidden charges. The opposite party has produced a copy of the hand delivery book maintained by them in their branch with a copy of the loan application that complainant had given. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the D.D. he had sent for Rs.5,000/- in favour of the opposite party was delivered to them and that the opposite party has not accounted that amount?<br /> 2. Whether he further proves that the opposite party has charged him with excessive interest and other unhidden charges?<br /> 3. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the affirmative.<br /> Point no.2 : In the negative.<br /> Point no.3 : See the final order.<br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- As evident from the brief facts, we have narrated above, there is no dispute with regard to this complainant having had availed a vehicle purchase loan from the opposite party and that the complainant later on repaid the loan amount in advance by way of pre-closure. The complainant has further contended that in order to repay the loan amount, he had sent a D.D. for Rs.5,000/- drawn in favour of the opposite party on Canara Bank, Kodagu District on 03.12.2007 and the same had been delivered to the opposite party through registered post acknowledgement due on 04.12.2007. But, the opposite party has denied the receipt of D.D. but admitted to had taken delivery of the registered post sent by the complainant on 04.12.2007. The opposite party has therefore, admitted the receipt of the said registered post, but denied the receipt of the D.D. In the course of arguments, we directed to opposite party and their counsel to place before us as to what they received from the complainant through registered post dated 04.12.2007, and to produce the inward register maintained by them and to account for the nature of instrument he had received through registered post on 04.12.2007. But, the opposite party has failed to tell before us as to what article they had received from the complainant through registered post dated 04.12.2007. The counsel for the complainant in the course of arguments submitted that the opposite party after receipt of the said D.D. has not given deduction from out of the loan amount and therefore stated that the opposite party by not taking into account Rs.5,000/- has later on recovered excess amount and therefore is liable to refund the said amount with interest. Even at the time of arguments, we directed the opposite party to find out whether the D.D. sent by the complainant has been encashed in the Canara Bank, Kodagu District to know whether the D.D. amount is paid or not, for which the opposite party did not show any interest in getting a certificate regarding payment or non-payment of the D.D. amount under question. Therefore, under these circumstances, when the complainant has proved to had taken a D.D. for Rs.5,000/- in favour of the opposite party drawn on Canara Bank, Kodagu District and delivered it to the opposite party a presumption arises in favour of the complainant for due delivery and therefore the burden is shifted on the opposite party to prove that the D.D. amount has not drawn. But, the opposite party has not bothered to get a certificate to that effect from the Canara Bank. As such, the opposite party is liable to account for Rs.5,000/- sent to him through D.D.<br /> <br /> 7. Coming to the other allegations of the complainant, that the opposite party has charged excessive interest and other unhidden charges to the extent of Rs.11,196.49 is concerned, the complainant himself has produced a statement of account given by the opposite party. The complainant neither in his complaint nor in his affidavit evidence mentioned the rate of interest at which the opposite party had lent money and at what rate interest is now charged. In the absence of any agreement or document entered into between the complainant and the opposite party regarding charging of interest at a particular rate it is not possible to say which rate of interest is agreed upon, and whether it is reasonable or excessive. What we mean to say is, if the complainant is able to prove that the opposite party had charged interest at a particular rate at the time of advancing the loan and charged excessively at later stage without authority then the complainant could have complained of charging excessive interest. But as stated above, we do not have any material before us to show the agreed rate of interest and the interest now charged. The complainant rely upon an extract of accounts given by the opposite party to him and invited our attention to Rs.11,196.49 charged as fore-closure charges and Rs.9,084.60 as interest on pending installments. The opposite party has produced a copy of the account details of the complainant, in which fore-closure charges is levied at 4% and service charges at 12.36% on that fore-closure charges which has come to Rs.11,196.49. The complainant without knowing different heads under which the opposite party has charged it on that amount of Rs.11,196.49 and believing all that component is interest has filed this complaint. Thus the complainant has failed to prove charging of interest by the opposite party is exorbitant. As such we find no merits in the said allegation of the complainant. However, the fact that the opposite party who received D.D. for Rs.5,000/- from the complainant has failed to account for the same and despite receipt of that D.D. has once again collected Rs.5,000/- towards dischargel of the entire loan and that amount of Rs.5,000/- has to be refunded to the complainant. Therefore, the complainant in our view is entitled for relief of Rs.5,000/- which has been received excessively in discharge of the loan with interest on it. With the result, we answer point no.1 in the affirmative and point no.2 in the negative and pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> <br /> 2. The opposite party is directed to refund Rs.5,000/- with interest at 9% p.a. from 04.12.2007 to the complainant within 30 days from the date of this order, failing which he shall continue to pay interest on the said amount as ordered above.<br /> <br /> 3. The opposite party shall also pay Rs.2,000/- for mental agony and hardship caused to the complainant within 30 days from the date of this order, failing which he shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> <br /> <br /> 4. The opposite party shall also pay cost of Rs.500/- to the complainant.<br /> <br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 7th July 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />