Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> 1. Complainant who is a salesman purchased a motor cycle for his own use and the registration number of the vehicle is KL-53/1341. Complainant availed finance of rs.37,000/- from first opposite party for purchase of the vehicle. This amount was to be repaid in 36 monthly instalments of Rs.1,358/- each. Towards payment of this amount complainant issued 36 post dated, cheques from the savings account maintained by him in second opposite party bank. That complainant had maintained sufficient balance in his account to honour the cheques. On 26-9-2007 first opposite party illegally seized the vehicle. When complainant made enquiries with first opposite party he was informed that only seven cheques issued by him could be encashed so far, and that several cheques were repeatedly dishonoured. Complainant then approached second opposite party. On verifying it was found that second opposite party had committed mistake while entering the savings account number in some of the cheques. Due to this mistake the cheques were presented to another account and happened to be dishonoured. Although complainant informed these facts to first opposite party and requested for release of the vehicle first opposite party demanded Rs.3,000/- along with cheque bouncing charges of Rs.1,200/-, the loan amount and 1½% additional interest. Complainant lodged a written complaint to second opposite party who assured to enquire into the matter and do the needful. Complainant is aggrieved that he lost Rs.27,000/- spend for purchase of the vehicle and also the amount remitted by him towards the loan. He alleges deficiency in service against both opposite parties and prays for return of his vehicle along with compensation of Rs.50,000/- and to direct second opposite party to pay Rs.4,200/- on his behalf to first opposite party.<br /> <br /> 2. Both opposite parties have filed separate versions. First opposite party admits that complainant has availed finance facility for purchase of the said motor cycle. As per the agreement executed by complainant he had to remit Rs.1,358/- in 36 instalments commencing from 05-10-06 and ending on 05-9-2009. At the time of availing finance complainant had handed over 36 post dated, cheques to first opposite party drawn on his account maintained with second opposite party bank. First opposite party specifically denies the allegation that the vehicle was forcefully seized. It is submitted that post dated cheques bearing dates, 31-10-06, 04-7-07, 14-8-07 and 10-9-2007 were returned as dishonoured. Complainant was informed about the dishonour immediately over telephone and through messenger. Adequate notices were issued to complainant informing him about the default of EMI. So also notices were issued to the Station House Officer, Perintalmanna well in advance prior to repossession of the vehicle. Even after receiving these notices complainant did not respond. At last the vehicle was taken possession peacefully on 26-9-07. thereafter notices were again issued to complainant to finally settle the account and to take release of the vehicle. Although this presale notice was received by complainant he failed to reply or pay any amount. Thereafter first opposite party sold the vehicle in auction to one Vipin for Rs.22,100/-. The amount was credited tot he loan account of complainant. That on taking repossession of vehicle the hire purchase agreement stands terminated and therefore from 26-9-2007 onwards the debtor-creditor relationship between complainant and first opposite party does not exist. That the complainant is therefore not a consumer. The vehicle has already been sold and the relief claimed to return the vehicle has become infructuous. There is no deficiency on the part of first opposite party. Complaint is to be dismissed.<br /> <br /> 3. Second opposite party has filed version admitting the issuance of cheques to complainant on his savings account maintained with second opposite party bank. That complainant had shown some urgency at the time of issuance of cheques and in the hurry the account number was wrongly noted in some cheques due to oversight. The very moment it came to light complainant was advised to take demand draft from his account and issue it in favour of first opposite party for payment of the defaulted amount. Complainant was very adamant and did not act upon this advice. The allegation that second opposite party committed deficiency in service and that complainant incurred loss is denied. It is prayed that the inadvertant bonafide mistake committed in noting the account number on the cheques maybe excused. That there was no intentional default while issuing the cheques. Complaint is liable to be dismissed.<br /> <br /> 4. Evidence consists of affidavits filed by complainant, first opposite party and second opposite party. Exts.A1 to a4 marked for the complainant. Exts.B1 to B7 marked on behalf of opposite party.<br /> <br /> 5. As per the amendment brought out in the version first opposite party raised an additional contention that complainant is not a consumer. It is contended by first opposite party that by repossession of the vehicle on 26-9-07 the hire purchase agreement stands terminated. That resultantly the debtor-creditor relationship between complainant and first opposite party also ceased to exist after 26-9-07. That therefore complainant is not a consumer. We are unable to agree with this contention of first opposite party. The definition of 'service' under Sec.2(o) of consumer Protection Act expressly includes services in connection with banking and financing. Thus complainant is a consumer for the services availed from opposite parties. It does not depend solely on the debtor-creditor relationship or the hire purchase agreement. For these reasons we hold that complainant is a consumer.<br /> <br /> 6. The undisputed facts of this case are (i) that complainant availed finance of Rs.37,000/- from first opposite party for the purchase of motor cycle No.KL-53/1341 (ii) that the loan amount was to be repaid in 36 monthly instalments of Rs.1,358/- each commencing from 05-10-06 and ending on 05-9-09. (iii) that towards repayment of this loan, complainant had issued 36 post dated cheques to first opposite party from the savings bank account maintained by him in second opposite party bank (iv) that the vehicle was repossessed by first opposite party on 26-9-07. The grievance of the complainant is two fold. Firstly, that there was sufficient balance in his savings account to honour the cheques and that the cheques were dishonoured only due to deficiency in service committed by second opposite party. Secondly, that first opposite party has illegally seized the vehicle and sold it to the detriment of the complainant.<br /> <br /> 7. It is the case of complainant that he had sufficient balance in his account and the cheques were dishonored only because second opposite party committed mistake in entering the correct account number on the cheques. Ext.A2 and A4 are the transaction history of Savings Bank account of complainant in second opposite party bank. These documents prove that complainant had maintained sufficient balance in his account on the relevant dates. Second opposite party admits the mistake and pleads and affirms that the mistake was an inadvertant bonafide mistake. Due tot he mistake the cheques were presented to another account and thus happened to be dishonoured. In such a case, it becomes necessary to examine whether complainant was made aware of the dishonour of cheques and also the subsequent conduct of complainant in repayment of instalments. It is contended by first opposite party that the cheques bearing dates, 31-10-06, 04-7-07, 14-8-07 and 10-9-07 were dishonoured. It is their case that complainant was informed about the dishonour of cheques through telephone and through messenger. First opposite party also relies upon Ext.B2 to Ext.B5 which are notices issued by first opposite party in regard to non-payment of instalments and alerting the complainant about repossession of the vehicle. Ext.B2 is a notice issued through courier by first opposite party to complainant which is dated nil. In Ext.B2 first opposite party has informed complainant that Rs.5,432/- is standing in arrears towards instalments, along with Rs.1,321/- towards additional interest. Ext.B3 is yet another notice dated, 10-8-07 send by first opposite party on 11-9-07 (ie., almost two weeks prior to repossession) to complainant through courier. In this notice first opposite party informs that an amount of Rs.4,074/- is outstanding towards EMI. Ext.B4 is a notice issued by first opposite party on 22-02-07 through courier to the Station House Officer, Perintalmanna informing that first opposite party intends to repossess the vehicle. Ext.B5 is the presale notice issued by first opposite party to complainant by registered post on 03-10-07. This notice was received by complainant on 13-10-07. The evidence tendered by first opposite party through affidavit, supported by the above documents sufficiently prove that complainant was sufficiently alerted about the non payment of instalments. It is the case of complainant that on seizure of the vehicle he approached opposite parties and then came to know that the cheques have been dishonoured due to the mistake committed by second opposite party. Second opposite party in turn contends that as soon as the mistake came to light they advised complainant to take a demand draft of the amount standing as balance in his account and to issue the same in favour of first opposite party. It is also the case of second opposite party that complainant took an adamant attitude and did not heed to their advice. From the evidence tendered it is candid that complainant had sufficient knowledge of the dishonour of cheques and did not make any attempts to rectify the mistake of cheques or clear the<br /> dues. This complaint was filed on 28-9-07. Along with the complaint an application I.A.46/07 was preferred seeking interim order to direct first opposite party to return the vehicle. Emergent notice was issued to opposite parties. Instead of immediately pursuing with the interim application, repeated adjournments were taken by the complainant. The vehicle was sold by first opposite party on 24-10-07. Ext.B5 presale notice was received by complainant on 13-10-07 Complainant could have taken necessary steps to serve the notice of the interim application to opposite party through courier or by hand and avoid the sale of vehicle. IA-46/07 has now become infructuous and disposed accordingly. Complainant has remained silent and has evaded the payments towards EMI. The debtor has to seek his creditor and not vice versa. It is sufficiently comprehensible that complainant was not interested either in making further payments to the loan or getting back his vehicle. Interestingly complainant who is a salesman has no case that he was not using the vehicle all this time. In our view, complainant cannot allege illegality in repossession of the vehicle when he has totally evaded the payment of instalments. Complainant contends that he spend Rs.12,500/- initially for the purchase of the vehicle and thus incurred loss of this amount as well as the amount of Rs.10,864/- paid by him towards the loan. There is absolutely no plea in the complaint that he spend Rs.12,500/- initially for the purchase of the vehicle. Further this contention is not supported by any documents. Hence the case of the complainant that he incurred loss of Rs.12,500/- is unacceptable. Prior to taking possession of the vehicle as well as prior to the sale by auction first opposite party has sufficiently informed the complainant. Repossession of the vehicle and sale of the vehicle for recovery of dues are conditions binding upon the complainant as per Ext.B1 agreement. We do not see any illegality in the act of first opposite party. From the above discussions we find that first opposite party is not deficient in service.<br /> <br /> 8. After sale of the vehicle first opposite party has issued Ext.B7 notice demanding Rs.16,359/- as balance outstanding after adjusting the sale amount of Rs.22,100/- to the credit of the complainant.<br /> <br /> Complainant has already paid Rs.10,864/- towards the loan of Rs.37,000/-. First opposite party has<br /> repossessed the vehicle and sold it. No documents are produced to prove the consideration received at the time of sale. In these circumstances payment of Rs.16,359/- by complainant would result in double enrichment to first opposite party. We consider that complainant is not liable to pay the said amount and first opposite party has to be restrained from realisation of any further amount from complainant towards the said loan.<br /> <br /> 9. The allegation against second opposite party is that they committed deficiency in service by wrongly entering the account number on the cheques. We hold that the contention of second opposite party that it was a bonafide inadvertant mistake to be true and believable. Although complainant prays that second opposite party may be directed to pay Rs.4,200/- to first opposite party on behalf of him nothing is brought out in evidence as to the ground on which complainant has founded this claim. Hence this claim cannot be allowed. On coming to know about the mistake committed while entering the account number second opposite party ought to have intimated first opposite party about the same. There is definitely an implied duty cast upon second opposite party to inform the financier about the actual reason for dishonour, and thus alleviate the hardships if any to the borrower. Second opposite party has no case that they issued any written communication to first opposite party. We consider this latches on the part of second opposite party to be deficiency in service. The services rendered by banks should be customer oriented. Any imperfection in the quality of service would amount to deficiency in service. We hold that second opposite party is liable to compensate the complainant for this deficiency which would also serve as a message to improve the quality of service rendered by second opposite party in future dealings. We quantify this compensation payable by second opposite party to be Rs.2,500/-.<br /> 10. In the result, we partly allow the complaint and order the following:-<br /> (i) First opposite party is restrained from realising Rs.16,359/- as per <br /> Ext.B7 notice or any other sum from complainant towards the <br /> loan which is the subject matter of this complaint. <br /> (ii) Second opposite party is ordered to pay Rs.2,500/- as <br /> compensation to the complainant within one month from <br /> the date of receipt of copy of tis order. <br /> (iii) We make no order as to costs.<br /> <br /> Dated this 24th day of July, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A4<br /> <br /> Ext.A1 : Photo copy of the payment chart issued by first opposite party to<br /> complainant.<br /> Ext.A2 : Computer print of transaction history of complainant for the period <br /> from 01-7-07 to 25-10-07 issued by 2nd opposite party to complainant.<br /> Ext.A3 : Computer print of statement of account from 2nd opposite party to<br /> complainant.<br /> Ext.A4 : Computer print of transaction history of complainant for the period <br /> from 01-6-07 to 17-8-07 issued by 2nd opposite party to complainant. <br /> <br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B7<br /> <br /> Ext.B1 : Photo copy of the Credit Facility Application Form with terms <br /> and conditions submitted by complainant to opposite party.<br /> Ext.B2 : Loan recall notice with courier receipt send by first opposite party <br /> to complainant.<br /> Ext.B3 : Notice dated, 10-8-07 issued by first opposite party to complainant.<br /> Ext.B4 : Notice dated, 22-02-07 issued by first opposite party to Station House<br /> Officer, Perintalmanna through courier<br /> Ext.B5 : Registered Presale notice dated, 03-10-07 issued by first opposite <br /> party to complainant <br /> Ext.B6 : Photo copy of the delivery order dated, 24-10-07 issued by first<br /> opposite party to the Manager, Rasha Vehicle Yard, Manjeri.<br /> Ext.B7 : Post sale notice on loss (By regd. Post with A/D) dated, 25-10-07<br /> first opposite party to complainant.<br /> <br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br />