KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.65/2011
JUDGMENT DATED :18.06.2013
(Appeal filed against the order in CC.No.107/2007 on the file of
ConsumerDisputes Redressal Forum, Pathanamthitta, dated:
29.11.2010)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
S. Mohanakumar,
S/o. T.N. Sreedharan,
Thayyil House, Konni-PO, APPELLANT
Mangaram Muri,
Konni Village.
(By Adv. Sri. S.V. Premakumaran Nair
& C.S. Rajmohan)
V.s.
1. ICICI Bank Ltd., represented
By its Manager,
Pathanamthitta.
2. The Collection Manager,
(Car Loans) ICICI Bank Ltd., RESPONDENTS
Kollam.
3. Suresh.G. Nair,
Officer (Car Loans)
ICICI Bank Ltd.,
Kollam.
4. The Branch Manager,
ICICI Bank Ltd.,
Pathanamthitta.
(By Adv. R.Suja & Othrs.)
JUDGMENT
SRI.K.CHANDRADAS NADAR: JUDICIAL MEMBER
The appellant was the complainant in CC.No.107/07 in the Consumer Disputes Redressal Forum, Pathanamthitta. The complainant had availed a vehicle loan of Rs.1,30,000/- from the Kollam branch of ICICI bank for purchasing a Maruthi ALTO Car. The loan was repayable in 60 equal monthly instalments at the rate of Rs.2710/-. The complainant had executed various documents as security for the loan. The opposite parties have collected 5 signed blank cheque leaves of ICICI bank for a sum of Rs.31,978/- each. The first opposite party paid the loan amount to the Popular Automobiles after deducting the first EMI and the complainant purchased the car in June 2003. The first EMI was deducted from the loan amount against the terms of the agreement. On 01.07.2003 the complainant contacted the second and third opposite parties and enquired about the mode of repayment of the loan. As advised by them the complainant sent a registered letter to the Chief Manager of the bank requesting him to communicate the mode of repayment. A cheque dated 03.07.03 for a sum of Rs.2710/- drawn on the Indian bank, Pathanamthitta was enclosed along with the letter. But the cheque was not encashed nor did the opposite parties respond. On 04.08.03 the complainant again sent a letter to the Branch Manager of Kollam along with two cheques for Rs.2715/- each towards the third and 4th EMI. However, there was no response. Aggrieved by this the complainant sent a letter to the Collection Manager, Thiruvananthapuram along with Demand Draft dated: 30.08.03 for an amount of Rs.8130/- drawn on the Indian Bank, Pathanamthitta along with copies of correspondence with the opposite parties till that date. Again there was no response. The cheque was not encashed or returned to the complainant. The complainant was forced to remit the amount with his bank fearing penal consequences. In the meanwhile, the opposite party bank opened branch at Pathanamthitta and the complainant transferred his account there for making payment. The complainant was charged with a sum of Rs.99/- towards ATM charges. The complainant was forced to operate his ATM facility for the sole reason that the opposite parties had no pass book facility. The complainant requested the 4th opposite party to withdraw the ATM facility provided to him and informed them that he was ready to pay the amount through Pathanamthitta branch. The opposite parties have closed his account by penalizing him Rs.210/- towards closure charges. As per letter dated:01.10.2004 the complainant requested the third opposite party to permit him to remit the entire loan amount. But there was no response. After that the complainant remitted the instalments through the collection agent of the bank at Pathanamthitta. Aggrieved by the inaction of the opposite parties the complainant remitted the entire amount due to them as per two demand drafts dated:12.11.2005 for Rs.45,600/- and Rs.45,000/- drawn on the Indian bank, Pathanamthitta. As on 01.02.2005 the complainant had remitted Rs.90,600/- as per the Amortization Schedule provided to him. The complainant also made request to close the car loan and return the five cheques received from him as collateral security for the loan. Stamp papers and promissory notes obtained from him were also sought to be returned. But the opposite parties did not respond. The complainant is also entitled to refund of Rs.469/- unauthorizedly deducted from his account. Due to the failure of the opposite parties to return the documents, the complainant suffered mental agony. Hence the complaint to direct the opposite parties to return the cheques and other security documents obtained from the complainant at the time of availing the loan, for refund of Rs.459/- unauthorisedly collected from him and to give clearance letter releasing the hypothecation of the car.
On behalf of the first opposite party the power of attorney holder of the ICICI bank filed version and contended that opposite parties were not necessary parties to the proceedings. Opposite parties 1 & 4 are having only banking transaction and they do not give vehicle loans. The vehicle finance was done by the Kollam and Kottayam branches alone. From the description in the complaint the customer can not be identified even to verify the accounts. As per the available details complainant is having an account with the ICICI bank limited; branch Kollam and not with the branch at Pathanamthitta. The complainant has put up a false and fabricated case to illegally extract money and make illegal gains. The complaint is bad for mis-joinder of necessary parties and non-joinder of necessary parties. The entire transaction and communications were with Mumbai, Kollam and Thiruvananthapuram branches only. Only one registered notice alleged to have been addressed to the first opposite party is barred by limitation. The complainant has suppressed material facts and has approached the Forum with unclean hands. The complainant was not entitled to any relief. Other opposite parties preferred not to appear before the Forum and remained exparte.
Before the Forum the complainant gave oral evidence as PW1. Exts.A1 to A18 were marked on his side. No oral evidence was adduced on the side of the first opposite party. Two documents were marked on their side as Exts.B1 & B2. The Forum dismissed the complaint holding that he has not cleared the entire amount due to the opposite parties. Hence the appeal by the aggrieved complainant.
The questions that arise for decision in this appeal are: whether deficiency in service can be attributed to the opposite parties and if so whether complainant/appellant is entitled to any relief.
We have narrated the facts alleged in the complaint in detail. Really the first opposite party on whose behalf version is filed does not dispute the facts alleged by the complainant. The first opposite party is the Branch Manager of the Pathanamthitta branch of ICICI bank limited. The contention is that complainant had transactions with the Kollam branch of the ICICI bank. It is pertinent to notice that opposite parties 2 & 3 are the collection manager car loans ICICI bank Kollam and another officer car loan attached to the same branch. It is surprising that opposite parties 2 & 3 did not appear or contest the case. The grievance of the complainant is that though he was willing to repay the car loan as per the amortization schedule furnished by the opposite parties when contacted by him for the purpose, there was no response. In order to prove this the complainant relies on Exts.A5 to A9. Ext.A5 is the copy of the letter sent by the complainant dated 04.08.03 addressed to the Manager of the Kollam branch, ICICI bank. It is mentioned that towards 3rd and 4th EMI of the car loan he was sending cheques bearing nos.146205 & 146206 for Rs.2710/- each dated:01.09.03 drawn on the Indian Bank, Pathanamthitta branch.Ext.A6 is the letter dated:30.08.03 in reply by the complainant to the Collection Manager, ICICI Bank, Thiruvananthapuram complaining of failure to intimate the details of repayment and informing him that earlier cheques were sent towards the 2nd, 3rd & 4th EMI. Ext.A7 is the postal receipt showing despatch of the said letter. Ext.A8 is another letter dated:01.10.04 complaining of unauthorized deduction from his account. Ext.A9 is the postal receipt evidencing dispatch of the said letter. Ext.A1 sent by the 3rd opposite party shows that 5 cheque leaves were collected from the complainant as security for the car loan amount. The Forum was of the view that in the absence of production of acknowledgment cards, the case of the complainant that he had sent cheques towards the payment of EMIs cannot be accepted. But at least in the case of Exts.A6 & A8 there is evidence to show that letters were dispatched through post office. Then it is for the opposite parties to show that the letters were not received by them.
It is the further case of the complainant that dissatisfied by the non response of the opposite parties he wanted to close the loan account and accordingly sent DDs, copies of which are produced as Exts.A14 & A14 (a). As per these DDs Rs.46,600/- and Rs.45,000/- were sent to the opposite parties. The complainant has also produced Exts.A10 to A13 as evidence of payment of certain EMIs. As per Ext.A10 Rs.5, 420/- is paid in the Kottayam branch of ICICI bank on 15.11.04. As per Ext.A11 dated:11.05.05 it is seen that the complainant had remitted Rs.2710/- at the Kottayam branch of ICICI bank. As per Ext.A12 dated:18.02.05 the complainant had remitted Rs.5420/- at the Kollam branch of the ICICI bank. As per Ext.A13 the complainant had remitted Rs.45,727/- on 12.11.05 at the Pathanamthitta branch of the ICICI bank. The complainant also sent Ext.A16 letter dated:12.11.05 complaining of inaction on the part of the opposite parties and offering settlement of the accounts. Ext.A17 is the postal receipt evidencing of despatch of the said letter.
Based on above evidence the complainant contends that in fact the entire amount due under his account was paid to the opposite parties. Really they have collected amounts from him which they were not entitled to do. In the above background Exts.B1 & B2 loan accounts produced by the first opposite party become relevant. It also contains adjustment entries from 31.05.2003 to 01.04.2012. It is seen that initially several adjustments of amounts were made towards over due charges. The evidence available really indicates that the complainant was attempting to repay the initial EMIs on due dates. But the opposite parties failed to cash the cheque and credit the amount in his account. The last entry by way of adjustments shows that the 50th EMI was adjusted on 24.08.07. It is pertinent to note that Exts.B1 & B2 cannot be relied on as are not certified to be true copies under the Banker’s Book Evidence Act. At the same time there is evidence to indicate that the opposite parties were totally ignoring transactions with the complainant or even refusing to accept the EMIs offered by him. So really there is deficiency in service on the part of the opposite parties. The contentions raised are rather legal and not factual. Under the above circumstances there is no basis for the conclusion of the Forum that amounts are still due from the complainant to the opposite parties. The available evidence and circumstance show otherwise. Hence the complaint is liable to be allowed.
In the result, the appeal is allowed. The order of the Consumer Disputes Redressal Forum, Pathanamthitta in CC.No.107/07 dated: 29.11.2010 is set aside and the complaint is allowed as follows. The opposite parties are directed to return the cheque leaves and other security documents obtained from the complainant as security for the loan availed by him from the Kollam branch of the opposite parties on 30.05.03. They are also directed to release the hypothecation of the vehicle. Considering the facts and circumstances of the case the parties are directed to bear their respective costs.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
A.RADHA : MEMBER
be/
