By Sri. MOHANDASAN.K, PRESIDENT
1. The complaint in short is as follows: -
The complainant borrowed an amount of Rs. 6,86,000/- from the first opposite party to purchase a Mahindra Bolero SUV vehicle in 2014. As per the condition of the loan agreement the complainant is bound to repay the loan amount through 55 equal instalments and complainant issued post-dated cheques to the first opposite party. The repayment of loan amount effected through the said cheques as per the agreement. The complainant made payment without fail right from the commencement of the repayment day i.e., from 16/01/2014. The complainant is an employee of Kerala State Beverage Corporation and he has got saving bank account with Punjab National Bank at Parappanangadi and the account No. is 452200010003239. The cheques issued to the opposite party company were drawn on this bank. Mean while the complainant received an open demand notice from the first opposite party on 01/03/2018 that one instalment of Rs. 17,560/- and its penal interest are in due and in case the default payment as stated in the demand notice is not paid off within 3 days, actions would be taken against the complainant and his wife, the guarantor. The complainant had no prior notice or any phone call or message concerning the matter in the said demand notice. The complainant submits that, the complainant did not make any default in payment as alleged in the notice. The complainant after receipt of demand notice received another phone call from the first opposite party in a female voice, informing that the cheque dated 15/02/2018 for an amount of Rs. 17,560/- was dishonoured due to the insufficiency of fund in the account.
2. Soon after hearing the aforesaid information that the dishonouring of the cheque dated 15/02/2018, the complainant enquired the matter with his banker, the Punjab National Bank Limited, Parappanangadi and he got information that no cheque was returned or dishonoured due to insufficiency of fund and there was more than sufficient fund in the account during that time. Moreover, the banker illustrate that the particular cheque was not submitted for encashment by the first opposite party or his banker. The complainant has got a certificate to that effect from his banker. Meanwhile the complainant paid the disputed instalments amount of Rs. 17,560/- on 05/03/2018 at the Edappal branch office of the opposite parties.
3. Thereafter the complainant issued a letter dated 15/03/2018 to the first opposite party showing all the aforesaid facts and seeking for an explanation for the strange and odd behaviour that opposite party has shown to the complainant. But opposite party did not give any reply to the said letter and has not given any explanation so far. The complainant has not done anything illegally and in fact was paying the monthly instalments promptly as per the terms and conditions of the contract. The complainant who has got good reputation and status among his family, relatives, friends and the public, has felt and feels even now severe mental agony and stress due to the opposite parties such annoying actions. The complainant submit that he felt his reputation and status among family, relatives, friends and the public and he was defamed by the unruly action of the opposite parties.
4. The complainant sent a lawyer notice on 19/05/2018 to the first opposite party and also his employers explaining all the aforesaid facts and demanding compensation for deficiency of service and also for mental agony. But even receiving the said lawyer notices the opposite parties did not give any reply or response and have not given any explanation for their illegal actions. Now all the monthly instalments payment has been completed and loan has been closed without any default on the part of the complainant. Hence the allegation of the complainant is that the opposite parties are jointly and severally liable for the aforesaid deficiency of service done to the complainant by way of alleging the default of payment in the month of February 2018 and dishonouring of cheque dated 15/02/2018 while there was more than sufficient money in the account of the complainant. Moreover the opposite parties are also liable to compensate for the mental agony suffered by the complainant. The prayer of the complainant is for Rs. 1,00,000/- on account of deficiency in service and Rs. 1,00,000/- as compensation for the mental agony for the defaming reference made in the said demand notice dated 01/03/2018 which is in the form of an open letter.
5. On admission of the complaint notice was issued to the opposite parties and opposite parties entered appearance and filed version.
6. The opposite party contented that complainant is not a consumer and so the complaint is not maintainable either in law or on facts of the case.
7. The opposite parties admitted that the complainant had borrowed an amount of Rs. 6,86,000/- from the first opposite party in order to purchase a Mahindra bolero vehicle in 2014. But the contention in the complaint that the loan repayment has to be made in 55 equal instalments of Rs. 17,560/- and distinctive post-dated cheques for the payment of monthly instalments and the complainant had paid instalments without any fail are not correct. The opposite party admitted that the complainant had received a demand notice dated 01/03/2018 stating that one instalment is pending is true but it was only to remind about the pending instalment and it is the procedure of the opposite party. It is also admitted that the first opposite party had informed the complainant that his cheque for Rs. 17,560/- dated 15/02/2018 was dishonoured due to insufficiency of funds in the account. But denied that the complainant had contacted his bank and they informed that no cheque was dishonoured due to in sufficiency of fund and there was sufficient fund in his account. The statement of the complainant that he paid the amount on 05/03/2018 at the Edappal Branch is true. The opposite party denied that the complainant had sent a letter dated 15/03/2018 asking about the dishonour of cheque and the opposite party has not given any reply to the letter. It is also denied that the complainant has got good reputation and status among his family and public is lowered and also defamed by the unruly action of opposite party. The opposite party stated that they have not done anything to defame the complainant. The opposite party also denied the averment in the complaint that the complainant had sent a lawyer notice dated 19/05/2018 to the opposite parties demanding of service and the opposite parties did not give any reply. The opposite parties submitted that they had contacted the complainant after receiving the notice and briefed about the status and the complainant was fully satisfied.
8. The opposite parties denied the averments of complainant that they are jointly and severally liable for the deficiency of service done to the complainant by way of alleging the default of payment in month February 2018 and dishonouring of cheque dated 15/02/2018, while there were more than sufficient money in the account of the complainant, the opposite parties are liable to compensate for mental agony and opposite parties are liable for the agony suffered by the complainant , the opposite parties are liable to pay Rs. 1,00,000/- as compensation and Rs. 1,00,000/- for deficiency of service as contended by the complainant.
9. The opposite parties contented that the Commission have no jurisdiction to entertain the complaint because an arbitration agreement is signed by the opposite party and complainant, accordingly that any dispute about the loan will be decided by the Arbitrator. It is also contended that the complainant has not made Punjab National bank as opposite party and so there is defect of non- joinder of necessary parties. The opposite parties also denied that they have committed wilful latches, deficiency in service, illegal act etc. The opposite parties also submitted that the complainant defaulted in payment of cheque dated 15/02/2018 bearing Number 550895, when presented for encashment by the opposite party bank, bounced with the memo ‘fund insufficient’ and the complainant is well aware of the facts. Hence the contention of the opposite parties is that the complainant alone is responsible for all the hard ships and losses sustained to him and so there is no deficiency in service on the part of the opposite parties and the complaint is not sustainable and the prayer is to dismiss the complaint with cost.
10. The complainant and opposite parties filed affidavit and documents. Documents on the side of complainant marked as Ext. A1 to A7. Ext. A1 is copy of schedule for payment, Ext. A2 is letter of demand notice issued by first opposite party to the complainant dated 01/03/2018, Ext. A3 is copy of letter issued by complainant to the opposite party dated 15/03/2018, Ext. A4 is certificate issued by Manager Punjab National Bank, Ext. A5 is copy of lawyer notice issued to the first opposite party dated 19/05/2018, Ext.A6 is postal acknowledgement-three in Number, Ext.A7 is Statement of account No. 4522000100013239 dated 25/03/2022 during the period 01/02/2018 to 28/02/2018. One document marked on the side of opposite parties as Ext.B1. Ext. B1 is Account statement for the day 21/2/2018 of HDFC Bank, Tirur.
11. Heard the complainant and opposite parties, perused affidavit and documents.
The following points arise for consideration.
- Whether the complaint is maintainable.
- Whether there was default in making payment of instalments by complainant.
- Whether there is deficiency in-service on the part of opposite parties.
- Reliefs and cost.
12.Point No.1
The opposite parties contented that the complaint is not maintainable since there is a contention regarding non-joinder of necessary parties and also there is contention regarding arbitration clause in the agreement executed between the complainant and opposite parties.
13. It can be seen that the contention of presence of arbitration clause in an agreement between the parties will not oust the jurisdiction of Consumer Dispute Redressal Commission to entertain a complaint and it is settled position by various decisions. So, there is no merit in that contention of the opposite parties. The second averment of the opposite parties is that the Punjab National Bank is to be made a party in the complaint, since where in the complainant maintain the account and that bank dishonoured the cheques presented by the opposite party. It can be seen that the opposite parties presented cheque for encashment of and which stands dishonoured according to them. If that is correct the opposite parties not barred from producing the dishonoured cheque as document as part of evidence. The opposite parties have not done it. But the complainant has produced duly authorised statements issued by the Punjab National Bank and which stands marked as Ext. A4 in the complaint. So, the contention regarding non-joinder of necessary party also do not find any merit. The first point answered accordingly.
14. Points No:2 to 4
The admitted facts in this complaint is that the complainant availed vehicle loan of Rs. 6,86,000/-from the opposite parties for the purchase of vehicle Mahindra Bolero SUV vehicle in 2014. As per the terms and conditions of the loan the complainant has to repay the loan amount through 55 equal monthly instalments of Rs. 17,560/-. The complainant submit that he was regularly making the payment of monthly instalments without fail right from the commencement of the repayment day that is from 16/01/2014. The submission of the complaint is that the repayments of the monthly instalments were done through distinctive post dated cheques through his banker Punjab National Bank at Parappanangadi. The grievance of the complaint is that , he received an open demand notice dated 01/03/2018 from the first opposite party that one instalment of Rs. 17,560/- and its penal interest are in dues and if the default payment is not paid within three days, action would be taken against him and his wife, guarantor. The submission of complainant is that he had not served any prior notice or any phone calls, or message concerning the matter. Moreover just after receipt of the said notice the complainant received a phone call from the office of the first opposite party, in a female voice, informing that the cheque dated 15/02/2018 for the said amount of Rs. 17,560/- stands dishonoured due to insufficiency of funds in the account.
15. The complainant produced Ext. A1 the instalment scheme of the loan and the history of regular payment. The complainant also produced Ext.A4 issued by Manager, the Punjab National Bank, Parappanangadi stating specifically that there was sufficient balance in the savings fund account No. 4522000100013239 of Mr. Arun Kumar.C, “Punartham”, Puthanpeedika, Neduva, Parappananggadi, 676303 , during the period 01/02/2018 to 28/02/2018 to cover Rs. 17,560/-. In addition to that, the complainant also caused to produce statement of accounts from the Punjab National Bank, Parappanangadi during the relevant period that is from 01/02/2018 to 28/02/2018. So the documents produced by the complainant establishes without any roof of doubt regarding the sufficient amount was in his account during the disputed period. The opposite party is not disputing except the particular instalment, that complainant made any default that either before or thereafter. But the opposite party produced Ext. B1, a so-called statement of account issued by the HDFC Bank Limited, Tirur regarding the transaction between 21/02/2018 to 21/02/2018. As per the Ext. A2 demand notice there is averment regarding bouncing of cheque by Punjab National Bank with reason in sufficient funds. But there is no authenticity for Ext. B1 document produced by opposite party to prove the same. If the contention was correct the opposite parties could have produced the particular cheque bounced by the bank. There is no bar for taking steps to establish the contention of the opposite party regarding the return of cheques for want of sufficient funds. But the complainant has proved that he was maintaining sufficient funds to honour the instalments regarding the loan payment. Hence we do not find any evidentiary value for Ext. B1 document. It is evident from the documents produced by the complainant that his contention is valid and there is sufficient reason to hold he was maintaining the account with sufficient amount to honour the cheques given to the opposite party.
16. It is also relevant to see that the complainant had caused to issue notice to the opposite parties regarding the bitter experience, he met in with the transaction between the opposite parties. It is curious enough to see the opposite party did not respond to the notice of the complainant. But the opposite parties filed affidavit stating that, they issued a demand notice dated 01/03/2018 that one instalment is pending and which is true, but it was only to remind about the pending instalments and it is the procedure of the company. It is also added that the complainant had informed that his cheque for Rs. 17,560/- dated 15/02/2018 was dishonoured due to in sufficiency of funds in the account was true. The opposite party stated that they did not issue reply to the lawyer notice sent by the complainant dated 19/05/2018, but briefed about the status and the complainant was fully satisfied and the complainant told to the opposite parties that satisfied with the reply. But the verification of the facts through documents, the contention of the opposite party is merits less. It is an admitted fact that they did not respond to the lawyer notice of the complainant.
17. The grievance of the complaint is that the opposite party issued an open letter to the complainant which caused much mental agony and defamation among family and friends. The perusal of Ext. A2, theso-called demand notice it can be seen that “1 തവണയായ17560/ രൂപയും അനുബന്ധ പിഴപലിശയും മുടങ്ങി കിടക്കുന്നതായി നിരവധി തവണ താങ്കw-ക്കു മുന്നറിയിപ്പ്നvകിയിരുന്നു.” Which does not appear as an advice to make payment of instalments duly, but it is a declaration of the opposite party that the complainant is a defaulter despite repeated demands to make payments. No doubt the declaration of the opposite party is defamatory one which definitely cause mental agony to the complainant. Hence, we find that there is deficiency in service and unfair trade practice on the part of the first opposite party towards the complainant.
18. The prayer of the complaint is to pay an amount of Rs. 1,00,000/- towards deficiency in service and also Rs. 1,00,000/-towards compensation for the mental agony suffered due to the defamatory service and reference made by the opposite parties.
19. Considering the entire aspects in the complaint, we allow the complaint as follows.: -
- The opposite parties are directed to pay Rs. 50,000/-(Rupees Fifty thousand only) to the complainant as compensation on account of deficiency in-service and thereby caused in convenience and hardships and mental agony to the complainant.
- The opposite parties are directed to pay cost of Rs. 10,000/- (Rupees Ten thousand only) to the complainant.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order failing which the entire amount will carry interest at the rate of 9% per annum from the date of filing this complaint till realisation.
Dated this 1st day of August, 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A7
Ext. A1 : Copy of scheduled for payment.
Ext. A2: Letter of demand notice issued by first opposite party to the
complainant dated 01/03/2018.
Ext.A3: Copy of letter issued by complainant to the opposite party dated 15/03/2018. Ext.A4: Certificate issued by Manager Punjab National Bank.
Ext.A5: Copy of lawyer notice issued to the first opposite party dated 19/05/2018, Ext.A6 : Postal acknowledgement three in Number.
Ext.A7: Statement of account No. 4522000100013239 dated 25/3/2022 regarding the
period 01/02/2018.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext.B1
Ext. B1: Account statement for the day 21/02/2018 of HDFC Bank, Tirur.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
