IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 2nd day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 112/2012 (Filed on 20.06.2012)
Between:
Santhamma,
W/o. Surendran,
Saigal Bhavanam,
Paranthal P.O.,
Mithrapuram,
Adoor – 689 585.
(By Adv. T. Harikrishnan) … Complainant.
And:
1. Magma Fincorp Ltd.,
First Floor, Jain Tower,
Power House Junction,
Vyttila, NH Bypass,
Cochin-682 019 represented by its
Managing Director.
2. The Manager,
Magma Fincorp Ltd.,
Near KSRTC Bus Stand,
Pathanamthitta.
(By Adv. Philip. T. Varghese)
3. M/s. Nippon Toyota,
168/8/1, M.C. Road,
Nattakam P.O.,Kottayam,
on behalf of Cholamandalam
MS General Insurance Ltd. … Opposite parties.
(By Adv. Sajan. A. Varghese)
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he is the owner of an Innova Car bearing registration No. KL-26B-9747 and the said car was purchased on 01.09.2011 by availing hypothecation facilities from the first and second opposite parties for ` 7,89,000 for a period for 48 months with EMI of ` 22,360 per month. The said vehicle was also insured with Cholamandalam MS General Insurance Company Ltd. through the third opposite party. The complainant also had been remitted the monthly EMI’s without any default till December, 2011. While so on 31.12.2011, the complainant’s vehicle met with an accident at Kazhakkoottam – Venjarammood by-pass road near Velavoor junction within Nedumangadu Police Station limits by collusion with another vehicle. In the said accident, the passengers in the complainant’s vehicle sustained injuries and the vehicle also sustained heavy damages. The case was registered for the said accident by Nedumangadu Police as Crime No. 3/2012 against the driver of the other vehicle. The matter was intimated to the third opposite party who had conducted the survey.
3. Thereafter, the insurance company settled the complainant’s claim on total loss basis due to the extensive damages of the vehicle. The insurance company has till date paid an amount of ` 6,98,532 to the complainant and the complainant in turn remitted the same towers the hypothecation dues with the first and second opposite parties. The last payment was made on 20.04.2012 and the complainant had arranged and was ready to pay the entire balance due to the first and second opposite parties for closing the hypothecation and asked the first and second opposite parties to furnish the details of the outstanding dues. At that time, opposite parties 1 and 2 demanded an amount which was much above the actual dues. Thereafter, the complainant obtained the statement of account from the first and second opposite parties regarding the hypothecation account. As per the statement of account, the complainant has to pay pre-payment interest, OD interest, CPB etc. over and above the actual dues. The complainant also noticed that the amount paid by the complainant on 17.02.2012 have not been deducted in the hypothecation account and interest and other charges was also demanded for the paid amount as if it is not paid. Opposite parties 1 and 2 are not entitled to collect any pre-closure charges as the circumstances lead to the request for pre-closure was due to the total loss of the vehicle and he could not continue with the hypothecation agreement for the said reasons. In the circumstances, the demand for pre-closure charges cannot be justified. Further, the demand for other extra charges by the opposite parties is also not legal as the complainant is not a defaulter for the EMI’s.
4. All the above said acts of the opposite parties is a deficiency in service and unfair trade practice which caused financial loss and mental agony to the complainant and the opposite parties are liable to the complainant for the same. Hence this complaint for an order directing the first and second opposite parties for closing the complainant’s loan account without collecting any illegal amount by receiving the actual dues outstanding as on 20.04.2012 along with compensation of ` 1,00,000 and cost of this proceedings.
5. Opposite parties 1 and 3 entered appearance and filed separate versions. Second opposite party is exparte.
6. The main contentions in the version of the first opposite party is as follows: The first opposite party challenged the territorial jurisdiction of this Forum on the ground that they have no business or agents within the jurisdiction of this Forum. The transaction between the complainant and the first opposite party is a commercial transaction and hence they contended that this complaint is bad for mis-joinder of parties. According to the first opposite party, the reliefs sought for by the complainant is for settling the accounts in connection with the loan transaction. Hence this Forum has no jurisdiction with regard to the settlement of accounts.
7. In connection with the hypothecation between the parties, there is an agreement wherein an arbitration clause is incorporated and hence the complainant had the remedy for settling the disputes under the said arbitration clause. As per the agreement between the parties, the complainant is not entitled to approach this Forum for restraining the first opposite party from collecting any amounts as envisaged in the said agreement. Hence this Forum is not entitled to vary the terms and conditions of the agreement executed between the parties. The allegation that the second opposite party is a branch of the first opposite party is incorrect as the first opposite party does not have any branch at Pathanamthitta. The claim of the complainant that he is not a defaulter of the monthly instalments is incorrect. From 27.09.2011 onwards, the cheques issued by the complainant to the first opposite party have bounced due to insufficient funds in the accounts of the complainant. The first opposite party is not aware of the alleged accident of the vehicle and his claim that the insurance company had settled the claim of the complainant on total loss basis. The complainant never informed or approached the first opposite party for closing the loan account by making payment in lumpsum. The statement of accounts submitted by the complainant are issued by the first opposite party and the details therein are true and genuine and the complainant is liable to remit the dues shown therein as per the terms and conditions of the hypothecation agreement. The remittances made by the complainant are adjusted in the loan account as per the terms and conditions of the loan and the statement of the complainant that the remittances are not properly accounted is false. All charges including pre-payment charges are legal and the first opposite party is entitled to collect the same as per the hypothecation agreement. The allegation of the complainant that she was precluded and obstructed from closing her loan account by the first opposite party is false. The claim of the complainant for compensation of ` 1,00,000 is baseless and exorbitant. With the above contentions, the first opposite party prays for the dismissal of the complaint as the complainant has no cause of action and there is no laches or deficiency of service from the first opposite party.
8. The main contentions in the version of the third opposite party is that the third opposite party is an unnecessary party in this proceedings as the insurance related transactions are made by the complainant with Cholamandalam MS General Insurance Company Ltd. Third opposite party has not committed any unfair trade practice or deficiency of service to the complainant. The third opposite party is made in the party array without any reasons. Since no relief is sought against the third opposite party, this complaint is not maintainable against the third opposite party. With the above contentions, third opposite party also prays for the dismissal of the complaint.
9. On the basis of the pleadings of the parties, the following points were raised for consideration:
(1) Whether this complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complainant are allowable?
(3) Reliefs and Costs?
10. The evidence of this complaint consists of the oral deposition of PW1 and Exts. A1 to A10. For the opposite parties, there is no oral or documentary evidence or they have not even cross examined PW1. After closure of evidence, matter was taken as heard as there was no representation from either side on the hearing date.
11. Points 1 to 3: The complainant’s allegation is that he had purchased an Innova Car on 01.09.2011 under an hypothecation with the first opposite party. The complainant also had availed a comprehensive insurance policy of the Cholamandalam General Insurance Ltd for the said vehicle. The second opposite party is the local branch of the first opposite party and the third opposite party is the agent of Cholamandalam MS General Insurance Company Ltd. As per the hypothecation agreement, the complainant has to pay 48 monthly instalments of ` 22,360 per instalment. The complainant had been remitting the EMI’s regularly. While so on 31.12.2011, the vehicle of the complainant met with an accident resulting total damage to the vehicle. On the basis of the comprehensive insurance policy issued by the insurance company, they have settled the claim of the complainant on total loss basis and the insurance company had paid an amount of ` 6,98,532 to the complainant till date. The said amount was given to the first opposite party towards the loan account. Thereafter on 20.04.2012, the complainant arranged the balance amount to be paid to the first opposite party for closing the loan account and informed the complainant’s intention to close the loan account. But the first opposite party demanded exorbitant amounts illegally as repayment charges, OD interest, CPB etc. without any basis.
12. According to the complainant, he is not a defaulter to any EMI’s and the earlier closing of the loan account is due to the total loss of the vehicle and it so happened not due to any of the acts of the complainant. Since the vehicle was totally damaged, the complainant could not continue the agreement executed in connection with the hypothecation. So the demand of pre-closure charges and other charges are illegal and he is not liable to pay the same and he is entitled to close the loan account and the opposite parties are not entitled to claim any illegal amounts for closing the loan account. The above said illegal demands of the first opposite party and the attitude of the first opposite party in not allowing the complainant to close the loan account by paying the actual and legal dues are unfair trade practice and deficiency of service and hence opposite parties are liable to the complainant.
13. In order to prove the case of the complainant, the complainant’s authorized agent filed a proof affidavit in lieu of his chief examination along with 10 documents. On the basis of the proof affidavit, the authorized agent of the complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A10. Ext. A1 is the authorization dated 8.10.2012 executed by the complainant in favour of PW1. Ext. A2 is the copy of the certificate of registration of the vehicle in question. Ext. A3 is the copy of the comprehensive insurance policy of the vehicle in question issued by Cholamandalam MS General Insurance Company Ltd. in the name of the complainant. Ext. A4 is the copy of the FIR in respect of the accident of the vehicle. Exts. A5 to A8 are the receipts issued by the first opposite party in the name of the complainant for the payment of ` 6,98,532. Exts. A9 and A10 are the pre-closure termination reports dated 17.02.2012 and 08.05.2012 respectively issued by the first opposite party in the name of the complainant.
14. On the other hand, the opposite parties have not adduced any oral or documentary evidence or even cross examined PW1 in favour of the opposite parties though they have raised certain contentions in their written versions.
15. In view of the contentions and arguments of the complainant and the contentions raised by the opposite parties in their versions, we have perused the available materials on record and found that the complainant had purchased an Innova Car by availing loan of ` 7,89,000 from the first opposite party and the complainant took a comprehensive policy for the said vehicle from Cholamandalam MS General Insurance Company Ltd. And the said vehicle was totally damaged in an accident and the insurance company settled the complainant’s claim on total loss basis. As per Ext. A9, the outstanding liability of the complainant to the first opposite party as on 17.02.2012 is ` 7,82,579-83. It is also found from Exts. A5 to A8 receipts, the complainant had paid an amount of 6,98,532 to the first opposite party. As per Ext. A10, the outstanding liability of the complainant to the first opposite party as on 08.05.2012 is ` 1,15,175-42 i.e. after the remittances made by the complainant by Exts. A5 to A8 receipts. Thus it is found that the complainant’s liability to the first opposite party as on 08.05.2012 according to the first opposite party’s statement of account is ` 1,15,175-42 which is inclusive of pre-payment interest of ` 32,482-60, OD interest of ` 5,458 and CPB of ` 4,000. The complainant’s allegation is that the first opposite party is not entitled to demand the above amount as the complainant is not a defaulter to any EMI’s and the pre-closure of the loan account is due to circumstances beyond the control of the complainant as the vehicle is totally damaged. Though the complainant had raised a contention that he is not a defaulter for EMI’s, he had not adduced any evidence to substantiate the said contention. At the same time, the first opposite party has not adduced any evidence justifying the demand for pre-closure interest from the complainant in the particular circumstances of this case. So the demand for pre-closure charges by the first opposite party cannot be justified and the said demand can be treated as an unfair trade practice.
16. Further, in the absence of any cogent evidence supporting the first opposite party’s contention regarding the maintainability of the complaint on the ground of territorial jurisdiction, arbitration clause etc. are not considered and on the basis of the finding of unfair trade practice against first opposite party, this complaint is found maintainable and allowable against the first opposite party. In the absence of any allegations or reliefs sought against third opposite party, we find no deficiency of service against the third opposite party.
17. In the result, this complaint is allowed; thereby the first opposite party is directed to close the loan account of the complainant without charging any pre-closure charges from the complainant. However, the first opposite party is at liberty to collect delayed payment charges, if any, from the complainant. The first opposite party is also directed not to collect any interest to the dues from the date of filing of this complaint. The parties are directed to comply this order within 30 days from the date of receipt of this order. Since interest for the dues, if any, is waived from the date of filing of this complaint, no orders for separate compensation and cost. In the event of non-compliance of this order by the first opposite party, the loan transaction can be treated as closed with effect from today.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 2nd day of November, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Saigal. M.S.
Exhibits marked on the side of the complainant:
A1 : Authorization dated 8.10.2012 executed by the
complainant in favour of Sri. Saigal. M.S.
A2 : Copy of the certificate of registration of the vehicle
bearing registration No.KL-26B-9747.
A3 : Comprehensive insurance policy of the vehicle issued by
Cholamandalam MS General Insurance Company Ltd. to
the complainant.
A4 : Copy of the FIR in respect of the accident of the vehicle. A5 to A8 : Receipts issued by the first opposite party in the name of
the complainant for the payment of ` 6,98,532.
A9 and A10 : Pre-closure termination reports dated 17.02.2012 and
08.05.2012 respectively issued by the first opposite
party in the name of the complainant.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Santhamma, Saigal Bhavanam, Paranthal P.O.,
Mithrapuram, Adoor – 689 585.
(2) Managing Director, Magma Fincorp Ltd., First Floor,
Jain Tower, Power House Junction, Vyttila, NH Bypass,
Cochin-682 019.
(3) The Manager, Magma Fincorp Ltd., Near KSRTC Bus
Stand, Pathanamthitta.
(4) M/s. Nippon Toyota, 168/8/1, M.C. Road,
Nattakam P.O.,Kottayam.
(5) The Stock File.
