Andhra Pradesh

Nellore

CC/81/2015

Yeddula Venkata Sesha Reddy, S/o Srinivasulu Reddy - Complainant(s)

Versus

Mahindra and Mahindra Financial Services Ltd, Rep. by Its Branch Manager - Opp.Party(s)

MD.Rahim Khan

12 Feb 2016

ORDER

                                          Date of filing       : 07-09-2015

                                          Date of disposal  : 12-02-2016 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Friday, this the 12th day of FEBRUARY, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                              

         

                                 C.C.No.81/2015

Yeddula Venkata Sesha Reddy,

S/o.Srinivasulu Reddy, aged about 63 years,

D.No.24-2-505, Saraswathi Nagar,

Dargamitta, A.K.Nagar Post,

Nellore – 524 004.                                                 …         Complainant

 

                      Vs.

                                                                            

1. Mahindra & Mahindra Financial Services Ltd.,

Rep. by its Branch Manager,

D.No.16/1433, 1^st Floor,

Sunshine Plaza, Ramalingapuram,

Nellore-524003.   

 

2. Mahindra & Mahindra Financial Services Ltd.,

Rep. by its Managing Director,

Regd. Office – Gateway Building,

Apollo Bunder,

Mumbai-400001.                                      …            Opposite parties

 

This matter coming on 01-02-2016  before us for final hearing in the presence of Sri  Md.Rahimkhan, Advocate for the complainant and  Sri S.Sreeramulu, Advocate for the  opposite parties and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

      This complaint is filed by the complainant against the opposite parties         1 and 2 directing them jointly and severally liable to him to issue no due certificate; and also clearance certificates and all other required documents to him immediately; to pay him of Rs.50,000/- towards compensation for his mental agony, distress and financial loss caused to him because of deficiency in service, negligence and unfair trade practice committed by them and also to grant him of Rs.5,000/- towards costs of this complaint and pass such other relief or reliefs as Hon’ble Consumer Forum may deemed it fit and proper in the circumstances of the case in the interests of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a)It is the case of the complainant that the opposite parties 1 and 2 canvassed their business and around Nellore and 1^st opposite party had approached him and canvassed their loan schemes for vehicles.  He had attracted by their promises and assurances of opposite parties 1 and 2, obtained a loan of Rs.3,50,000/- and purchased chaverlet Tavera Vehicle on 27-12-2010 under hypothecation agreement with the opposite parties and its which bearing no:1420131 for the said vehicle registration no:AP26R4977.  As per the terms of the said agreement, the complainant had to pay monthly installment amount of Rs.13,450/- from 25-01-2011.  The 1^st opposite party had already collected initial amount from him on the date of invoice along with signed blank papers also from him by saying that they are required for releasing the said amount.  It is also further submitted that he had paid all the installments regularly without fail.  After paying his loan installments, he had requested the 1^st opposite party to issue loan clearance certificate and all other papers which were collected from him at the time of releasing the said loan amount.  But the 1^st opposite party had issued an account statement stating that an amount of Rs.25,450/- is still due and requested the complainant to pay the same.  So, he had paid the said amount of Rs.25,450/- by way of D.D.which bearing no:717918 dt.04-03-2014 which was drawn on Corporation Bank, Nellore.  But, inspite of the said payment made by him the entire loan amount still the opposite parties 1 and 2 did not choose to issue clearance certificate and other papers to him.

(b)  It is also further submitted by the complainant in para-2 at page no.2 of his complaint that it is legal and bounden duty of opposite parties 1 and 2 to issue clearance certificate and other papers immediately as and when the entire due amount is paid but they are issuing several demand notices inspite of receipt of entire amount and final due amount of Rs.25,450/-.  The opposite parties 1 and 2 postponing the same on some pretext or other and due to that the complainant had suffered a lot of financial loss and mental agony.  The complainant intended to exchange the above said vehicle with a new one after payment of the entire loan.  But, due to delay in issuing clearance certificate, the value of the said vehicle come down from Rs.6,00,000/- to Rs.4,00,000/-.  The monitory loss is caused only due to deficiency in service and negligence of opposite parties 1 and 2 in not releasing the loan clearance certificate and other papers.  So, the complainant had approached the Hon’ble Consumer Forum for his redressal.

 

 ( c ) There are causes of action to file this Consumer case is described by the complainant at page no.3 of his complaint in detail.  Hence, the complaint.

 

 

II.  DEFENCE:

     This complaint was resisted by the 1^st opposite party denying the allegations of the complainant made in the complaint.  The complainant is not just and maintainable at law.  So, also denied the allegations of the complainant made in the complaint, denied at 3^rd para of its written version.  The 2^nd opposite party had also filed a memo of adoption of the written version/counter filed by 1^st opposite party.

 (i)According to the opposite parties 1 and 2, it is also submitted by them at paras 6 and 7 at page no.2 of their written version/counter that the complainant has to clear all the dues which are pending to the 1^st opposite party and then only the NOC and other related papers will be released and without clearing the delayed charges, the NOC cannot be released.  The 1^st opposite party is a non-banking service registered under the Companies Act, 1956 providing/extending loans, lease, hire purchase to the customers who are intended to purchase the vehicles. During the course of business the complainant one among approached this opposite party No.1 for availing loan facility for purchase of vehicle Cheverlet Tavera Upon production of quotation.  This opposite aprty No.1 sanctioned loan amount of Rs.3,50,000/- and the complainant agreed to repay the said amount with interest in 36 equated monthly installments of Rs.13,450/- each and executed loan agreement on certain terms and conditions. 

(ii)According to the opposite parties 1 and 2, it is submitted by them at para-8  page no.4 of their written version/counter that there has been highly irregularity committed by the complainant in making the payment of installments on time, because of that there is an amount of Rs.36,002/- is due towards delayed payment charges and Rs.3,000/- towards cheque returned charges etc.  In spite of several reminders and personal follow up the complainant could not turned after paid the installments and straight away filed this complaint with false allegations.  This opposite party No.1 is now entitled to file Arbitration Case against the complainant/defaulter in competent Sole Arbitrator for their grievance.  Furthermore this Forum has no jurisdiction to entertain this complaint in the present form.  As per the clause No.26 of the Agreement The Arbitration Proceeding shall be held in Chennai,  not at Nellore more so, within the jurisdiction of this Hon’ble Forum.  So, the complainant has  not come to this Hon’ble Forum with clean hands.

III. The complainant had filed his chief-affidavit evidence on 28-12-2015 and the documents in support of the case were marked on his behalf of Exs.A1 to A6; whereas the opposite parties were also marked their documents as Exs.B1 to B3 and chief affidavit evidence filed on 12-01-2016 by one Mr.A.Sunil Kumar working as branch manager on behalf of the opposite parties.  Both the parties had also filed their written arguments of the case.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

         (c) To what relief?

 

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.    It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainant:

        The learned counsel for the complainant Sri Md.Rahim Khan has vehemently argued that the 1^st opposite party had issued statement of account of the complainant dt.28-02-2014 (Ex.A1) stating that there is still due amount of Rs.25,450/-.  Consequently, the complainant had addressed a letter dt.4-3-2014 to the 1^st opposite party along with D.D. for Rs.25,450/- (Ex.A2).  He has also further argued that after one month, the 1^st opposite party sent a letter dt.8-3-2014 (Ex.A3) to the complainant along with a receipt, demanding further to pay additional interest charges payable to the 1^st opposite party.  The said learned counsel for the complainant has also further contended that demand notice dt.02-12-2014 (Ex.A4) was issued to the complainant to pay dues within 15 days from the date of receipt of it by the complainant. Again a demand notice dt.10-02-2015 (Ex.A5)  issued to the complainant by the 1^st opposite party, asking him to pay dues of the said loan amount.  Subsequently, a letter dt.20-02-2015(Ex.A6) by the complainant to the 1^st opposite party, requesting to issue him a clearance certificate and stating other reasons, to unable to dispose off his vehicle.

   The said learned counsel for the complainant’s has urged to the 1^st opposite party that the complainant is not a defaulter and out of total loan amount of Rs.3,50,000/- and the opposite parties so far collected Rs.4,70,750/- from him.  It is the duty of opposite parties to issue a clearance certificate and other papers immediately on payment of final due amount of Rs.25,450/- as demanded by the opposite parties according to Ex.A1. Though, the said amount of Rs.25,450/- was paid by the complainant under Ex.A2, still demanding additional charges is arbitrary and baseless by the opposite parties.  It is nothing but unfair trade practice.  Because of the acts of opposite parties, the complainant is suffering a lot of mental agony, distress and monitory loss in not exchanging his vehicle due to lack of NOC etc.  The value of the said vehicle is coming down day by day.  There is deficiency in service and negligence of the opposite parties towards the complainant. Finally, the said learned counsel for complainant has prayed the Hon’ble Consumer Forum may be pleased to allow the complainant as prayed for.

 

Oral Submissions by the learned counsel for the opposite parties:

  On the other hand, Sri S.Sree Ramulu, the learned counsel of the opposite parties has also vehemently argued that the written version/counter, affidavit and written arguments may be read as part and parcel of his oral arguments. 

         He has further argued that the complainant did not pay the monthly installments to the opposite parties regularly.  After demands made by the 1^st opposite party about installments only, the complainant paid balance due amount and kept the delayed payment charges pending, without paying the same to the opposite parties.  The complainant has to clear all the dues and then only NOC and other related papers will be released to him.  He has also further contended that the subsequent paras from 5^th para as per the opposite parties written arguments filed here, still, the complainant has to pay Rs.36,002/- is due towards delayed  payment charges and Rs.3,000/- towards cheque returned charges.  Inspite of several reminders  and personal follow up, the complainant could not turned after paid the installments and straight away filed this consumer case with false allegations.  The 1^st opposite party is now entitled to file arbitration case against complainant/defaulter in competent Arbitrator for their grievance. This Hon’ble Consumer Forum has no jurisdiction to entertain this case.  As per clause no.26 of the agreement, the Arbitration proceedings shall be held in Chennai, not at Nellore.

            The said learned counsel for the opposite parties has further argued that Ex.B1 is the loan agreement between the parties and it may be read as part and parcel of his oral arguments.  Ex.B2  is the repayment schedule and Ex.B3 is the statement of account.  So, it is crystal clear that the complainant has not cleared off the entire amount to the opposite parties and hence issuance of NOC to him, is not possible as per the terms and conditions of the agreement of loan.  Finally, the said learned counsel for the opposite parties has prayed the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

 

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence.

       In view of the facts and circumstances of the case put forward by the parties concerned, the notable point is for our determination that whether the complainant is fair enough in discharging and paying dues; if any to the opposite parties correctly or not?

      Ex.A1 discloses us that as per the statement of account copy, it is clear that the due amount is payable by the complainant to the opposite parties, is that of the amount of Rs.25,450/- is paid as per Ex.A2 on 4-3-2014.  As soon as after observing the contents of the statement of account (Ex.A1) on          28-02-2014, the complainant paid the said amount to opposite parties after 3 days i.e. 04-03-2014.  It does not consist of penal charges or interest charges as the case may be.  Now, opposite parties are stopped by principle of law again saying subsequently still there is due from the complainant by way of letter dt.8-3-2014(Ex.A3)  asking him to pay further, is ridiculous.  It is after negotiating personally by the officials of opposite parties and their follow up action with the complainant only they (opposite parties) arrived at a figure and accordingly he paid the said amount to the opposite parties.  The said amount of Rs.25,450/- is due then according to statement of account (Ex.A1).

    Subsequently, after longer period 29-09-2015, (Ex.B3) sending statement of account  to the complainant, adding some more charges as penal and interests of delayed payments due to the opposite parties, are certainly arbitrary, illegal and not valid in the eye of law.  It should be immediately after receiving the said amount of Rs.25,450/- by the opposite parties; if there is any further dues to them.  It is only after thought and put the complainant again for negotiations with them.  It will not be permitted.  Why the opposite parties stipulated such amount as balance, according to their own statement of account?(Ex.A1).  It is nothing but second round of litigation with the complainant by the opposite parties.  Those who are seeking justice from the Forum/Courts, must come with clean hands.  Otherwise, there is every scope to draw an adverse inference against the opposite parties.  They are capable to give accurate amount balance, if they desires so, but not exercised and kept it in darkness for the reasons best known to them.  Now, they are coming up with a different version by sending a statement of account (Ex.B3) to the complainant.  It is clearly appears to be that the officials of opposite parties bore grudge against the complainant but nothing else   It is proved by documentary evidence on record.

 

CASE – LAW:  Arbitration agreement is not bar to redressal:

   If an agreement contains arbitration clause, the dispute must be referred to arbitration as per section-8 of Arbitration Act, 1966.  However, in Skypack Couriers Ltd. Vs. Tata Chemicals Ltd., II 2000 CPJ 6(SC) = AIR 2000(SC) 2008, it has been held that even if there is an arbitration agreement, a Consumer Forum can entertain consumer complaint  as remedy under C.P.Act, 1986 is in addition to provisions of any law for the time being in force.  It is a suitable one which is squarely applicable to the facts of the case on hand.

Relevant case-law on the subject:

1)A quasi – Judicial authority must record reasons in support of its conclusions – 2011 CTJ(SC)(CP) page No.135.

2) In the case of Consumer dispute redressal Forums, the judgment must set out the points in dispute and a decision on those points supported by some reasons – 1995(1) CPR 832(NC)

3) The complaint is based on deficiency in service must establish the same by leading cogent evidence – 2011(2) CPR67(NC).

4) The complainant must prove his claim by reliable evidence – 2011(3) CPR 81(NC)

5) Compensation or damages can be awarded  only if complainant has suffered loss or damage due to negligence of manufacturer  or service provider – 2011(2) CPR 101(NC).

6) The Consumer Forum is primarily would function on the principles of natural justice, equity and good conscience.

     In view of the Hon’ble Apex Court  and Hon’ble National Commission’s Rulings as mentioned above, are with the Authority as and when the circumstances arise, depending on the facts of each case, applicable according to the situations and contentions put forth by the both the parties concerned.

       Lapses on the part of the opposite parties:

1)As and when the opposite parties pleases, cannot issue statement of accounts of its customers to suit their defence accordingly.

2)Why the 1^st opposite party had waited another 5 months and took sufficient time to issue another statement of account after receiving the said amount from the complainant.

3) The Ex.A1 is clear enough to disclose correct figure of balance due from the complainant.  The 1^st opposite party cannot say further any more and once accepted means that the 1^st opposite party is liable to issue NOC to the customer concerned.  Otherwise, it amounts to deficiency in service on its part and answerable.

4) Now, they(opposite parties) cannot put their defense by saying that arbitration as such.

5) Alleged bounced cheques relating to the complainant, are not produced by the opposite parties for the reasons best known to them.  The said fact is alleged but not proved.

        After scanning the entire material on record and after having considered a rival submissions in the light of well-settled legal principles, we are of the clear opinion that this Consumer Case is a fit case to award  Rs.25,000/- damages to the complainant.  Realization of justice is the ultimate function of law.  Consumer Forums should be wary of passing cryptic orders in the adjudication of complaints 2007 CTJ AP P6(SC).  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. This case demonstrates the highly unethical and unscrupulous conduct of the opposite parties.  The conduct of the opposite parties 1 and 2 are not only highly detestable but unpardonable also.  Such tendencies have to be curbed with heavy hands by compensating the victim adequately as a deterrent.  We are convinced with the arguments of the learned counsel for the complainant.  The opposite parties are miserably failed in their attempt to convince us. We find that there is a deficiency in service and gross- negligence on the part of the opposite parties 1 and 2.   These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT NO.3:  is In the result, the complaint is allowed in-part ordering the opposite parties 1 and 2 jointly and severally to issue ‘No Due Certificate’ and ‘Clearance Certificate’, immediately  to the complainant ; to pay Rs.25,000/- (Rupees twenty five thousand only) towards compensation for his mental agony, distress and financial loss caused to him for their deficiency in service, negligence and unfair trade practice committed by them and also pay him of Rs.3,000/- (Rupees three thousand only) towards costs of the complaint, within one month from the date of receipt of the order from the Hon’ble Consumer Forum.  The point is ordered accordingly.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 12th day of FEBRUARY,              2016.    

 

             Sd/-                                                                           Sd/-           

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

PW1

28-12-2015

:

Yeddula Venkata Sesha Reddy, S/o.Srinivasulu Reddy, aged about 63 years, D.No.24-2-505, Saraswathi Nagar, Dargamitta, A.K.Nagar post, Nellore – 524004.

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

12-1-2016

:

A.Sunil Kumar, S/o.Hayagreeva Swamy, Hindu, aged about 36 years, working as Branch Manager, Mahindra & Mahindra Financial Services LTd., D.No.16/1433, Sunshine Plaza, Ramalingapuram, Nellore City.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	28-02-2014	:	Photostat copy of statement of account.
Ex.A2	04-03-2014	:	Photostat copy of letter addressed by the complainant to the opposite party No.1 regarding D.D. for Rs.25,450/- along with copy of regd.post receipt.
Ex.A3	08-03-2014	:	Photostat copy of Intimation letter addressed by the 1st opposite party to the complainant.
Ex.A4	02-12-2014	:	Photostat copy of demand notice issued by the opposite party No.1 to the complainant.
Ex.A5	10-02-2015	:	Photostat copy of demand notice issued by the 1st opposite party to the complainant.
Ex.A6	20-02-2015	:	Photostat copy of letter addressed by the complainant to the 1st opposite party along with R.P.receipt.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	21-12-2010	:	Photostat copy of a loan agreement copy executed by the complainant in favour of Mahindra & Mahindra Financial services Ltd., Nellore.
Ex.B2	11-12-2015	:	Photostat copy of the repayment schedule.
Ex.B3	29-09-2015	:	Photostat copy of the Statement of Account.

 

         Id/-                                                                                          PRESIDENT(FAC)

 

Copies to:

 

1. Sri Md.Rahimkhan, Advocate, Sri Srinivasa Lodge Building, Near Men’s Fashions Wear, Trunk Road, Nellore- 524 001.

 

2. Sri S.Sree Ramulu, Advocate, Ground Floor, Room No.1, Dilshan Apartment, Main Road, Fathekhanpet, Nellore-524003.

          

 

Date when order copies are issued: