IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Hon’ble Mr. Bose Augustine, President
Hon’ble Mrs. Renu P. Gopalan, Member
CC No. 304/15
Wednesday the 30th day of November, 2016
Complainant : Sachin Baiju,
S/o K.S. Baiju,
Oravanakalathil Veedu,
Kumarakom PO, Kottayam,
686563
(Adv. E.S.Rajesh)
Vs.
Opposite parties : Kotak Mahindra Prime Ltd.,
4th floor, Payyil Kohinoor
Arcade, Sankrathy Junction,
Kottayam-686 028.
(Adv.Dr.V.T.Rejimon)
O R D E R
Hon’ble Mr. Bose Augustine, President
The case of the complainant filed on 28/10/15 is as follows.
The complainant is the grandson of Mr. Somashekara Panicker, who availed vehicle loan for purchasing his car bearing Reg.No. KL-5/AF-1793, who died on 25-4-13. According to the complainant the deceased Somashekara Panicker had entrusted the Cheque leafs for the EMI’s with the opposite party. After his death there was sufficient money with the account of him to honour the EMI’s still September 2013. Accordingly the opposite party had collected the EMI’s through the cheques. After the death of the Somashekara Panicker the legal heirs executed a transfer of equity, NOC, infavour of him entrusting the ownership and authorizing to transfer the same. According to the complainant he had approached the opposite party and submitted the above NOC with the consent of Mr. Pranavu, who is the guarantor of the loan, for transferring the ownership in his name. But the opposite party had rejected the said request of the complainant. And he had remitted the EMI’s regularly till September 2015. But on 8-9-15 the opposite party initiated that Rs.14380/- is to be remitted as Cheque bonus charge. Then he had approached for closing the loan account of the deceased pertaining to the vehicle loan by remitting the balance amount of 22 EMI’s. But the opposite party demanded Rs.6000/- as additional charge with Rs.14380/-. According to the complainant the death of the Somashekara Panicker was intimated to the opposite party and after that he had regularly remitted the EMI’s. And the act of opposite party in presenting the cheques of the deceased after accepting the EMI’s and demanding amount as Cheque bonus charges and additional charge and in not issuing NOC amounts to deficiency in service. Hence the complainant filed this complaint for the order directing the opposite party to give NOC in respect of the hypothecated vehicle bearing Reg.No.KL-5/AF-1793 after collecting legally entitled amount.
Opposite party filed version contenting that the complaint is not maintainable because the complainant is not a consumer of the opposite party and he has no locus standi to file this complaint. According to the opposite party the loan was issued on the basis of an agreement and they had not collected the cheques for all EMI’s. The borrower had submitted the Cheque for every EMI’s in time to time. The complainant had approached for transferring the ownership of the vehicle. But due to non-submission of certificate and documents, which were legally necessary for transferring the same, they could not consider. And due to the death of the Somashekara Panicker the opposite party has not take amount from his account it was intimated to the guarantor and family members of the borrower. But they are not ready to remit the loan amount. After remitting the loan amount opposite party is ready to issue NOC on submission of the documents and at this stage they could not issue the NOC in the name of the complainant. The statement that the complainant had regularly remitted EMI’s till September 2015 is not correct. According to the opposite party they had not presented the Cheque of the deceased after the death of Somashekara Panicker and they had presented the cheques as per the agreement. And the death of the borrower was not intimated by the guarantor or the complainant. According to the opposite party as per the agreement they had demanded the amount and there was no deficiency in service or unfair trade practice on the part of opposite party. Opposite party prayed for dismissal of the complaint with cost.
Points for considerations are:
- Whether there is any deficiency in service or unfair trade practice on the part of opposite party?
- Relief and costs?
Evidence in this case consists of the proof affidavit of both sides Ext.A1 to A6 documents from the side of the complainant and Ext.B1 and B2 documents from the side of opposite party.
Point No.1
Complainant alleges deficiency in service on the part of opposite party in the following aspects
- The opposite party after collecting EMI amount, illegally presented Cheque of the deceased loanee, who is the grandson of the complainant and demanded Cheque bounce charges eventhough complainant remitted the EMI’s.
- Opposite party has not given the NOC evenafter the complainant submitted relevant documents as demanded by the opposite party.
- Opposite party has not allowed the complainant to close the loan amount even if he offered to pay the balance amount in lumpsum.
According to the opposite party complainant has no locus standi to file this complaint and there is no consumer relationship between the complainant and opposite party.
In our view since the complainant is a beneficiary to the service availed by the opposite party he can be treated as a consumer. Admittedly Somasehakara Panicker, person who availed the loan from the opposite party for purchase of the vehicle, was died. From Ext.A5 series documents it can be seen that 21 instalments were paid by the loanee. Furthermore it can be seen that all instalments were paid in the beginning of month. But from Ext.A6, statement of account it can be seen that on the said instalments Cheque bounce charges were accounted by the opposite party. From Ext.A6 copy of the statement of account, issued by the opposite party, it can be seen that altogether Rs.14,380/- is illegally accounted as Cheque bounces charges. In our view said act is unfair trade practice.
The other allegation of the complainant is that opposite party is not willing to issue NOC to the complainant and also they demanded Rs.6000/- as additional charges for premature closer of the loan. Opposite party has no case that they are entitled for the said amount as per hypothecation agreement. No hypothecation/hire purchase agreement is produced by the opposite party. In our view above said act of opposite party amounts to deficiency in service. Point No.1 is found accordingly.
Point No.2
In view of the findings in Point No.1 complaint is allowed.
In the result,
- The opposite party is ordered not to collect Cheque bounce charges during the period of remitted EMI’s
- The opposite party is directed to issue NOC to the complainant if remitted balance amount and submitted concerned documents for issuing the NOC pertaining to the disputed loan account in connection with vehicle bearing Reg.No.KL-5/AF-1793
- The opposite party is ordered to pay Rs.5000/- as cost of the litigation to the complainant.
The Order shall be complied with within 30 days from the date of receipt of copy of the order.
Pronounced in the Open Forum on this the 30th day of November, 2016
Hon’ble Mr. Bose Augustine, President Sd/-
Hon’ble Mrs. Renu P. Gopalan, Member Sd/-
Appendix
Documents for complainant
Ext.A1-Photocopy of certificate of registration
Ext.A2-Death Certificate
Ext.A3-Legal heir certificate
Ext.A4-Transfer of Equity
Ext.A5-Series of Payment Receipts(21Nos)
Ext.A6-Copy of Statement of account 16/9/15
Documents of opposite party
Ext.B1-Copy of statement of account
Ext.B2-Copy of Accounts by Kotak Mahindra Prime ltd car finance Kottayam.
By Order,
Senior Superintendent(I/C)
