IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 11th Day of June 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.04/16
Dinesh Pradeep : Complainant
Anugraha II
Edavattom
Chirakkara (P.O)
Kollam-691578
[By Adv.Maruthadi.R.Sreeraj]
V/s
Manager : Opposite party
Bajaj Finserv
IInd Floor,Vidya Bhavan
Janayugam Nagar No.15
Kadappakkada (P.O)
Kollam-691008
[By Adv.B.S.Suresh Kumar & M.S.Ajithkumar]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
On 08.05.15 the complainant entered into executive post at the Bajaj Fin Serv and as directed by the company he purchased one Laptop from QRS, Kollam on 18.06.15 by availing loan arranged by the company. The amount of monthly instalment was Rs.3125/-. But before the date of payment of EMI the company directed him to pay Rs.5500/- when he enquired about the excess amount it was informed that health insurance was taken in the name of the
2
complainant but it was without his knowledge or consent. He has signed only on loan application, EMI card form, loan time sheet and two ECS forms. When he made a complaint before the branch manager Sri.Krishnaprasad he directed the complainant to pay only the EMI for Rs.3125/-. But on subsequent month the company insisted him to pay Rs.5,500/- by sending message to the complainant. On one occasion he paid Rs.3250/- including bouncing charge and on another occasion Rs.3475/- including bouncing charge of Rs.350/-. Later he received messages to the effect that Rs.5,500/- has to be paid. Though he made a complaint before the credit manager Jithin over phone he has received messages to pay EMI for Rs.5500/-. As the complainant demanded to settled the matter and also insisted that he is ready to repay the EMI he was informed that staff deputed by the management office at Kochi will appear at the residence of the complainant and make problem and also they will make the sibil score to minus and in such event he will not be eligible to get any further loan from any bank. Several staff from Kollam demanded to pay Rs.5500/-. Due to the above act of the opposite party the cheque issued by him has been bouncing and his profile will become negative and there is chance of sibil score minus. He has to spent Rs.12145/- for getting legal aid expences towards including TA, Advocate fee etc. apart from the mental agony sustained by him. Therefore the complainant prays to direct the opposite party to collect
3
Rs.3250/- as the EMI and also pay to compensation to the complainant to the tune of Rs.12145/- towards the mental agony sustained by him.
In response to the notice the opposite party entered appearance and resisted the complaint by filing a detailed version raising the following contentions. The complainant is defective. There is no company in existence by name Bajaj Fin Serv. The name Bajaj Fin Serve is a brand name whereas the name of the company is Bajaj Finance Ltd. The complainant has not made Bajaj Finance Ltd as party to the complainant and hence the complaint has to be dismissed on this ground. In the absence of necessary and proper party the instant complaint deserved to be dismissed at the very outset. It is further contented that Bajaj Finance Ltd is a non banking finance company registered with the RBI and also registered with companies Act having its registered office at Mumbai. It is further contented that the complainant applied for 2 loans, the details of which are stated in the form of a schedule in the written version. The EMI for both the loans together are Rs.5500/-. At the time of filing the loan the complainant signed the loan term sheet and executed promissory note in favour of the opposite party. The complainant has also signed on the terms and conditions of the loan. With regards to the Loan agreement No.4440CD10792797, the complainant has issued ECS Mandate for the repayment of the instalments and instalment No.3,4,5 and 6 got dishonoured due to the reason of “insufficient funds” and as a result an amount of
4
Rs.14,125/- stands due. Further the opposite party states that the complainant has also availed the insurance from the opposite party vide loan agreement No.444BAL10794133, which is linked with the CD Loan agreement No.4440CD10792797, thus totalling the EMI amount to Rs.5,500/-(Rs.3125/- towards EMI of Loan agreement No.4440CD10792797 and Rs.2375/- towards EMI of Loan agreement No.444BAL10794133). The opposite party further submits that the complainant had availed the insurance from Bajaj Alliance Life Insurance Company(BALIC). According to the opposite party it is evident from the Certificate of Insurance and the Application form that the complainant has availed a loan from BALIC vide loan proposal No.401BAL00413000. The allegations of defect/default deficiency in service are wholly misconceived, groundless, false, untenable in law besides being extraneous and irrelevant having regard to the facts and circumstances of the matter under reference. With regard to prayer clause it is submitted that opposite party is not liable to pay any compensation and interest as claimed by the complainant in the complaint. The opposite parties states that the complainant has made an attempt to give misleading information to the forum it is nothing but abuse of process of law. The complainant has made an attempt to waste valuable time of forum. Hence the present complaint is frivolous and vexatious and liable to be dismissed under Section 26 of the Consumer Protection Act. There is no deficiency in service on the part of the opposite party who have acted in good
5
faith. The complainant is not entitled to get any of the reliefs sought for. In the written version the opposite party has resisted a counter claim with a request to direct the complainant to pay outstanding amount of Rs.14125/- towards loan proposal No.4440CD10792797 and regularise the loan account.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice on the side of the opposite party?
- Whether the complainant is entitled to get the relief sought for?
- Whether the counter claim raised in the written version is allowable?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of the complainant(PW1) and Ext.P1 to P6 documents. The opposite party has not adduced any evidence either oral or documentary. Both parties have not filed any notes of arguments. Both sides have also not appeared and argued on the merit of the case. On 24.04.19 when the case was taken up for filing notes of argument and advancing argument the learned counsel for the complainant endorsed that there is no instruction from the complainant. Opposite parties counsel has also not argued on the merit of the case. Though both the lawyers abandoned the case, the forum is bound to pass an order on the basis of available evidence.
6
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. PW1 is none other than the complainant in this case. Evidence of PW1 would show that on 18.05.15 he entered into service of the opposite party as an executive. According to PW1 as instructed by the opposite party he purchased one Laptop(Acer notebook) for Rs.29,500/- from QRS, Kollam for which he obtained Ext.A1 invoice that he has paid Rs.4500/- as down payment and remaining Rs.25,000/- was agreed to be paid by the opposite party as an interest free loan and the complainant has to repay the loan by way of 8 equal monthly instalment of Rs.3125/-. On the same day opposite party obtained the signature of the complainant in unfilled loan application form, EMI card form, loan term sheet, 2 ECS form etc. However during the month of July 2015 the opposite party send a message to the complainant directing him to pay Rs.5,500/- as instalment. On enquiry the Branch Manager of the opposite party told that he need to pay only Rs.3125/- as instalment. On 31.08.15 and 01.10.15 he paid Rs.3475/- and Rs.3250/- respectively including bouncing charge.Ext.A2and A3 are the receipts showing the above payment. But again the opposite party send a message intimating that EMI of Rs.5500/- is due on 05.12.15 towards the loan account. Ext.P4 is a computer print of the message send by the 4th opposite party on 28.11.15. He taken out a statement of its loan account and also enquired about the excess EMI and thereupon he came
7
to know from the statement that the amount of loan and the article purchased him are different. Accordingly instead of Acer Laptop the name of the article purchased is SONY LED TV and instead of the loan amount Rs.25,000/- , Rs.37,500/- has been shown in the statement. Ext.A5 is the said statement of account. Hence there is deficiency in service and unfair trade practice on the part of the opposite party.
The oral evidence of PW1 would show that without the knowledge or consent of the complainant the opposite party has taken an insurance policy in the name of the complainant by paying Rs.18,999/- and also send Ext.A6 certificate of insurance to the complainant. It is seen from the version filed by the opposite party they have sanctioned another loan of Rs.18,999/- without the knowledge or consent of the complainant which according to PW1 is to exploit him financially. He has not signed any proposal form requesting to join in the insurance policy and therefore there is no need to file any loan application for that purpose. In the circumstance the demand of the opposite party that the complainant has to pay Rs.5500/- as EMI is without any basis. However he filed a petition before the forum directing him to produce the records relating to the insurance, but the opposite party has not produced the same. Hence PW1 prays to draw adverse inference against the opposite party.
8
During cross examination PW1 has stated that he has signed Ext.D1 loan application form which was a blank form that he has also furnished Election ID card and ATM card and there after loan has been approved within 5 minutes. However it is seen stated in Ext.D1 loan application form that the loan is for the purpose of LED TV. But he has purchased one Laptop of Acer company. Only after approving the loan product has been given. That he received the ATM card and ID card then and there itself after verification. Though he has availed a loan of Rs.27,000/- only the amount stated in Ext.D1 loan application is Rs.37,500/-. He has also put his signature in the loan term sheet and promissory note which are marked as Ext.D2 series subject proof. All those are in the blank form. It is stated in Ext.P1 document that he has paid Rs.4500/- as down payment.
In view of the above evidence of PW1 it is crystal clear that the complainant has taken the loan for purchasing one Laptop and the loan amount was Rs.25,000/-. But the opposite party managed to obtain signature in Ext.P1 loan application which was in a blank form and subsequently got it filled by adding that the loan amount is Rs.37,500/- and the purpose of the loan is to purchase LED TV. The materials available on record would clearly indicate that the complainant has purchased one Laptop of Acer Company for which a loan of Rs.37,500/- is not required at all. It is also brought out in evidence that
9
the complainant has not voluntarily taken in any health insurance policy. But the opposite party company managed to obtain one health insurance policy in the name of the complainant and by creating document that the complainant has availed 2nd loan for the purpose of taking insurance policy.
Though the complainant has deposed the above aspect before the court there is nothing on record to disbelieve the above version of the complainant. The opposite party has also not adduced any evidence either oral or documentary to substantiate their contentions. The opposite party ought to have called for documents from QRS, Kollam to prove that they have sold LED TV to the complainant on 18.06.15 and not sold Laptop on the same day. But they have also failed to produce documents called for on the application of the complainant. Opposite party has also not adduced any oral evidence or material documents to substantiate their contentions in the written version.
On evaluating the entire materials available on record we are of the view that there is deficiency in service and unfair trade practice on the part of the opposite party. It is also brought out in evidence as the opposite party has created false documents by claiming that the complainant has availed loan of Rs.37,500/- for purchasing LED TV and also created documents that the complainant has taken health insurance policy without the complainant actually applying for the same. It is also brought out in evidence that the opposite party has demanded exorbited amount as EMI and therefore the complainant has not
10
paid the same. In the circumstance the allegations of the complainant that he has sustained mental agony apart from financial loss is believable and acceptable. It is also brought out in evidence that due to the above act of the opposite party the cheque issued by the complainant has bounce continuously which resulted in the negative profile of the complainant and there is chance for sibil score becoming minus and on that count also the complainant has sustained mental agony. In the circumstance the complainant is entitled to get the relief sought for. The points answered accordingly.
Point No.3
It is true that the opposite party has raised a counter claim for Rs.14125/- and also to regularise the loan account. It is well settled that no counter claim will stand in a consumer complaint. Furthermore the finding under point No.1 to 2 would indicate that there is deficiency in service and unfair trade practice on the side of the opposite parties. In the circumstance it is doubtful whether the opposite party is entitled to recover that much amount from the complainant. The point answered accordingly.
Point No.4
In the result the complaint stands allowed permitting the complainant to pay EMI @ Rs.3125/- till the actual loan amount of Rs.25,000/- is exhausted. The opposite party is directed to pay Rs.15,000/- as compensation including the
11
expences of Rs.12145/- met by him. Opposite party is also directed to pay Rs.5,000/- to the complainant as costs of the proceedings.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 11th day of June 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Dinesh Pradeep
Documents marked for the complainant
Ext.P1 : Retail invoice
Ext.P2 : Payment receipt-Customer copy dated 31.08.15
Ext.P3 : Payment receipt-Customer copy dated 01.10.15
Ext.P4 : Computer print of the message send by the 4th
opposite party on 28.11.15
Ext.P5 : Statement of account
Ext.P6 : Certificate of Insurance.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
