By Smt. C.S. Sulekha Beevi, President
Complainant availed vehicle finance from second opposite party through their agent at Malappuram who is first opposite party herein. He availed loan of Rs. 3,00,000 to purchase a Mahindra MJ III, single cab pick-up for earning his livelihood. The vehicle was purchased on 26.11.2003 and was registered as KL 10/R 5806. The complainant had to repay Rs. 3,49,650 on or before 26.11.2006. Opposite parties had collection agents and they used to come to the place of halt of the pick-up vehicle to collect the monthly instalments. He paid the instalments without default. He thus paid the entire amount by 2.11.2006 which was much earlier that the due date of the last instalment. Complainant had repaid Rs. 351720/- and had thus paid excess of Rs. 2070/-. After payment of the loan complainant requested opposite parties to issue the hire purchase termination letter. But opposite parties have not issued it till date. Complainant caused a lawyer
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notice to opposite party on 6.3.2007 to which second opposite party send a false and frivolous reply. It is stated that the act of opposite parties in not issuing the hire purchase termination letter even after entire repayment of loan is deficiency in service. Hence this complaint.
2 .Both opposite parties have filed a combined version. It is admitted that opposite parties have advanced vehicle loan of 3,00,000/- for purchase of the said vehicle which was later registered as KL-10 R/5806. It is stated that complainant had to repay by way of EMI of Rs. 9990 before 26 th of every month. It was agreed that penal interest at the rate of 3 % per month is to be charged for delayed payments. Complainant did not make payments within the stipulated due dates. Opposite party denies the averment that collection agents of opposite party used to collect the instalments and that complainant use to make payments to them regularly. Complainant was a chronic defaulter. He made 3765 days of default. Hence the complainant is liable to pay Rs. 25,483/- towards the additional finance charges . Opposite party is not liable to issue no objection certificate until this amount is also paid by the complainant. That there is no deficiency in service.
Evidence consists of the proof affidavit filed by complainant and Exts. A1 reciepts marked for him. Opposite party filed counter affidavit and Ext. B1 and B2 marked for opposite party.
Complainant is aggrieved by the non-issuance of the hire purchase termination letter by opposite parties. He contends that he has repaid the loan even prior to the date of payment of last instalment and that he has paid Rs. 2070 in excess. Against this it is submitted by opposite party that complainant did not pay the instalments on the stipulated dates and has thus defaulted. That he is liable to pay Rs. 25483/- as additional finance charges for the delay of 3765 days caused by him.
Ext.B1 is the account statement relating to the loan transaction. The loan period is from 26.11.2003 to 26.11.2006. Complainant has to repay 9990 as EMI by 35 instalments. Complainant has paid the last instalment on 2.11.2006. Ext.A1 reciepts show that complainant has committed default intermittently. But on some occassions he has paid larger amount . On 30.3.2005, the complainant has paid Rs. 49940/-. On 19.8.2005 he has paid Rs.30,000/-. In Ext. B1 statement it is shown that the total amount repayable is Rs. 349650 (Rs.9990 x35 instalments). It is seen in Ext. B1 that complainant has repaid Rs. 3,51,490. On some occassions of paying the instalments opposite party has collected additional finanace charges (AFC). Ext.A1 reciepts substantiates this. As per Ext.B1 account statement , the the AFC already paid by complainant is seen to be
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2010/-. In Ext B1 the total AFC payable is shown as Rs. 27493/-. Deducting the AFC already paid by complainant, opposite party contends that there is a balance of Rs. 25483/- due from the complainant towards AFC. It is affirmed by opposite party that complainant has caused delay of 3765 days and that therefore he is liable to pay AFC of Rs. 25483/-. On comparing the date of payment as shown in Ext.A1 reciepts and that of the date of payment shown in Ext.B1 account statement it is seen that there is difference in the date of accounting the date of payment . For eg; As per Ext A1(a) reciept issued on 24.11.2003 to the complainant for payment of first instalment of Rs.15,000/- the date accounted as date of payment in Ext B1 is 26.11.2003 . In Ext.A1 (b) reciept the date of payment is 27.12.2003. Whereas in Ext. B1 the date of payment of this instalment is shown as 29.12.2003. The next payment as per Ext.A1 © is 27.1.2004whereas in Ext. B1 it is shown as 28.1.2003. Further payments and accounting also shows this difference. This difference in delay has been carried forward. All the instalments are seen to be paid in cash. It is affirmed by opposite party in para 4 of counter affidavit that the payment was made directly by the complainant at their Malppuram office. It that be so, opposite party is bound to explain why opposite party has caused delay in accounting the payment. No explanation is offered before us. Opposite party does not dispute Ext.A1 reciepts. Opposite party is bound to account the payment of instalment as on the date on which it is paid by the consumer.Opposite party cannot alter the date of payment to the convinience of opposite party and thereafter claim additional charges for each days delay. If the consumer is burdened with 36 % penal interest for delay in payment then opposite party is bound to account the date of payment correctly and accurately. It is not for the creditor to unilaterally fix a date of payment after having received the cash from the borrower. We therefore are not inclined to rely upon Ext B1 as to the total number of days of delay. Complainant has already paid Rs. 2010/- towards AFC. He has repaid the principal loan with interest. The only claim put forward by opposite party is towards AFC. It is established that opposite party has not correctly accounted the date on which complainant has paid the instalment. The date of payment shown in reciepts issued to the complainant does not tally with the date of payment shown in Ext B1 accounts. For this reason we cannot uphold the claim of opposite party for AFC. We hold that opposite party is not entitled to recover Rs.25483/- towards AFC. Demanding amount without properly accounting the days of delay is deficiency. We find opposite party deficient.
In the result, we partly allow the complaint and order that both opposite parties are jointly and severally liable to issue hire purchase termination letter to the complainant in regard to the
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vehicle KL 10/ R.5806 within one month from the date of reciept of copy of this order, failing which on request made by the complainant a copy of this order will be communicated to the concerned R.T.O who on reciept of copy of this order shall cancel the endorsement in favour of opposite parties in regard to vehicle No KL/10 R 5806. No order as to costs.
Dated this 3th day of December, 2010.
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER
E. AYISHAKUTTY, MEMBER
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APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to Ext.A3
Ext.A1 (a) :Cash Receipt of Opposite party given to complainant dated 24/11/2003
Ext.A1(a) :Cash Receipt of Opposite party given to complainant dated 26/11/2003
Ext.A1(b) :Cash Receipt of Opposite party given to complainant dated 27/12/2003
Ext.A2. :Acknowledgment
Ext.A2 (b) :Photocopy of lawyer notice given to opposite party from complainant's Advocate dated 6.3.2007
Ext.A3. :copy of Lawyer notice given to complainant's Advocate dated 19.3.2007
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 to B2
Ext.B1 :Original copy of Statement of Account of Mahindra Financial Service Ltd dated.06/01/2009
Ext.B2 :Loan Agreement
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER
E. AYISHAKUTTY, MEMBER
