IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 30th Day of October 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.285/16
Balakrishna Pillai : Complainant
56 Years
S/o Raghavan Pillai
Kodamkutti Vila Veedu
Punukkannoor Cheri
Alumoodu P.O
Kollam-691577
[By Adv.N.Haridasan]
V/s
Manager : Opposite party
Indusind Bank
Chinnakkada, Kollam-691001.
[By Adv.K.B.Sreekumar]
FINAL 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 1986.
The averments in the complaint as stands amended in short are as follows:-
On 19.04.2011 the complainant hypothecated his vehicle by name Mahendra Geneo bearing No.KL 2 A7 5576 with the opposite party bank and availed a loan of Rs.3,80,000/- by agreeing to pay the same in 48 monthly installments @ Rs.11400/- per month. Accordingly the complainant has to pay Rs.547200/-. The 1st installment of the loan started on 19.04.2011 and the last installment was due on 19.02.2015. Till 29.03.2015 the complainant paid Rs.6,68,894/- as the opposite party threatened the complainant by stating that they would seize the vehicle if the complainant would not pay Rs.1,21,594/- in excess of the agreed EMI. The interest agreed was flat interest @ 7.8%. Therefore the interest to be paid for the principal amount for Rs.380000/- for 4 years would come to Rs.1,18,560/-. In the circumstances the opposite party is entitled to recover principal amount of Rs.3,80,000/- plus interest Rs.1,18,560/- and the total amount to be realized would be Rs.4,98,560/-. Therefore the amount unlawfully obtained by the opposite party bank from the complainant is Rs.6,68,894-4,98,560=1,70,334/-. If flat rate of interest is calculated monthly installment will be Rs.10387/-. But the opposite party fraudulently has realized Rs.10400/- from the complainant on every month. Apart from that in several installment the opposite party has realized more than the agreed monthly installment of R.10,400/-. The opposite party has also not issued NOC nor returned 2 cheques obtained from the complainant while availing the loan. The above act of the opposite party bank amounts to deficiency in service and dereliction of duty. In the circumstances the complainant prays to direct the opposite party to issue NOC in respect of the hypothecated vehicle of the complainant and also direct the opposite party to return the 2 cheques obtained from the complainant. The 3rd relief sought for is return of Rs.1,99,334/- being he excess amount collected from the complainant, compensation and costs.
Opposite party entered appearance in response to the notice and resisted the case by filing version and additional version. The main contentions raised in the version are as follows. The complaint is not maintainable either in law or on facts as it has been filed by suppressing material facts with malafide intention. However the opposite party would admit that the complainant had availed a loan from the opposite party bank after executing loan agreement containing arbitration clause, the opposite party had already initiated arbitration proceedings against the complainant. Hence the complaint is not maintainable. The amount outstanding in the loan account of the complainant on 06.02.2018 is Rs.37063/- and the complainant is liable to pay the said amount for closing the loan account and for issuing NOC. The calculations made by the complainant are absolutely wrong and is having no nexus with that of the terms of the loan agreement. The repayment schedule form part of the agreement and the complainant is bound to pay the installment as per schedule for availing penal interest. The opposite party had collected installment as per the schedule attached to the loan agreement and as per the terms of the agreement mutually agreed between the complainant and the opposite party bank. The interest charged is the interest mutually agreed up on and the opposite party has not collected any interest over and above the agreed rate of interest. The complainant is liable to pay interest and penal interest for the delayed payment of the installment as per the terms of the loan agreement. The opposite party is ready to issue NOC on payment of the balance amount due to the opposite party bank. The opposite party has never accepted any cheque from the complainant as alleged. There is absolutely no deficiency in service on the part of the opposite party bank. The opposite party had approached this commission with unclean hands. The complainant is not entitled to get any relief as prayed for.
After getting the complaint amended the opposite party had filed additional version raising the following contentions. Complainant had originally claimed an amount of Rs.170334/- and thereafter limited the claim to Rs.1,00,000/. The complainant had now sought to amend so as to claim Rs.1,70,334/- with interest and costs. The calculations made by the complainant are absolutely wrong and is having no nexus with the terms of the agreement. The repayment schedule form part of the agreement and the complainant is bound to pay the installments as per the schedule for avoiding penal interest. The opposite party had never collected any interest over and above the agreed rate of interest. The complainant is liable to pay interest and penal interest for the delayed payment of installment as per the terms of the agreement. The opposite party further prays to dismiss the complaint with costs and compensatory costs.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get refund of Rs.170334/- as claimed?
- Whether the complainant is entitled to get compensation from the opposite party if so what would the amount of compensation to be awarded?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 &P2 series documents. Evidence on the side of the opposite party consists of the oral evidence of DW1 and Ext.B1 and B2 documents.
Heard both sides. Opposite party had filed notes of argument also. However the complainant has not filed any notes of argument. The learned counsel appearing for both sides have not advanced any oral argument, though sufficient opportunity has been granted.
Point No.1 to 3
For avoiding repetition of discussion of materials these 3 points are considered together. PW1 Balakrishna Pillai is the complainant in this case. He filed proof affidavit in lieu of chief examination by reiterating the averments in the complaint. The following are the admitted rather undisputed facts in this case. The complainant has availed a loan from the opposite party bank by executing Ext.B2 agreement which would contain repayment schedule and if the complainant failed to repay as shown in repayment schedule the complainant is liable to pay penal interest. The agreement would contain one arbitration clause. The complainant remitted the insurance premium amount directly and obtained Ext.P2 series insurance policy certificate for 4 years during the pendency of the loan. As per the schedule attached to the loan agreement the complainant has to repay the loan agreement in 48 EMI @ Rs.11400/-. Insurance premium amount for 2nd, 3rd and 4th year amounting to Rs.27000/- . Ext.P1 is the statement issued by the opposite party bank to the complainant.
Opposite party bank would content that as stated in Ext.B1 and B2 documents the bank has remitted 3 years insurance premium amounting to Rs.27000/-. That on 02.05.2012 the bank has paid Rs.7705/- and on 17.06.2013 the bank has paid Rs.19374/- and altogether they paid Rs.27079/- towards insurance company. Ext.P2 series containing 16 pages which would indicate that the hypothecated vehicle has been insured with the Oriental Insurance Company Ltd. The amount payable at the time of taking the policy was Rs.16475/- and the same was paid by the complainant. The 3rd sheet(Page No.4) is the renewed insurance policy from 20.04.2013 to the midnight of 19.04.2014. Gross premium paid on 17.04.2013 is Rs.20161/-. Page No.7 would indicate that on 17.04.2015 an amount of Rs.20,029/- was paid by the complainant for renewing policy w.e.f 20.04.2015 to the midnight of 19.04.2016. Page No.9 of P2 series would indicate that on 19.04.2016 an amount of Rs.19340/- has been paid for renewing the policy in respect of the vehicle from 20.04.2016 to the midnight of 19.04.2017. Page No.11 would indicate that the complainant has again renewed policy from 20.04.2017 to the midnight on 19.04.2018 by paying Rs.18,397/- on 17.04.2017. Page No.13 would indicate that again the policy was renewed from 20.04.2018 to 19.04.2019 by paying Rs.18655/- on 16.04.2018. page No.15 of P2 series would indicate that the complainant again renewed the policy on 18.04.2019 by paying Rs.17,733/-. The validity of the policy from 20.04.2019 to the midnight of 19.04.2020. Almost all payment except the premium paid on 17.04.2015 is by way of cheque.
Admittedly Ex.P1 is the computerized extract of the Statement of Account maintained in the name of the complainant in respect of the loan transaction. The 1st page of the above statement would indicate that the complainant has availed Rs.380000/- as loan as on 19.04.2011. Interest charges agreed is Rs.118560/-. The loan period is 48 months and rate of interest is 7.8%. The 2nd installment due is on 19.04.2011 and the last installment is due on 19.02.2015. The last page of Ext.P1 document would indicate the complainant has paid Rs.11000/- on 29.03.2015 which is after completing the date of last installment. It is clear from Ext.P1 document that the complainant has continuously paid the entire installment and paid one installment in excess of the last installment stipulated.
Ext. B1 is a Statement of account of the loan produced by the opposite party and Ext. B2 it is stated that customer has to pay the 1st installment and also credited Rs.27000/- towards insurance premium of 2nd, 3rd and 4th year. But the opposite party has not produced any receipts evidencing the payment of such premium. On the other hand the complainant has produced Ext.P2 series receipts evidencing the payment of insurance premium for the entire 4 years. In this connection it is to be pointed out clause 13(1) of Ext.B2 loan agreement wherein it is stated that the borrower shall, immediately after signing this agreement keep the asset insured against any loss or damage and shall punctually be paid all premium and other sums required for keeping the said insurance effective throughout the period of this agreement and deliver any insurance policy, covering note or receipt on demand by the lender for inspection and verification.
In view of the above clause the complainant/borrower is liable to pay insurance. In the circumstances why the bank has debited Rs.27000/- towards insurance premium of the 2nd, 3rd and 4th year is not explained by the opposite party either in the written version or when PW1 was in the witness box. The opposite party has no case that the borrower has not paid the insurance premium in time. Ext.P2 series premium receipts would indicate that he has paid the insurance premium well before the due date and renewed the policy. The opposite party being a bank the premium if any paid to the insurance company directly from the bank shall be either through cheque/DD or any other legally acceptable mode of transfer of money from the bank to the insurance company. In such event there shall be re record to indicate payment of insurance premium. Admittedly Ext.P1 is the extract of the statement of account supplied by the opposite party to the borrower/complainant wherein it is shown that on 02.05.2012 an amount of Rs.7705/- and on 12.04.2013 an amount of Rs.10374/- was debited to the loan account by the opposite party bank. But on 17.06.2013 an amount of Rs.19374/- has been seen credited to the account as insurance premium of the complainant. The entries are reflected in Ext.B1 extract of the accounts also. Though Rs.7705/- and Rs.10374/- has been debited to the account of the complainant as insurance premium there is nothing on record to indicate that the opposite party bank has remitted the same in the insurance company towards insurance premium. The date of transaction reflected on the above 2 occasions would not tally with the date of payment of insurance premium as per Ext.P2 series premium receipts. In view of the reasons stated above we are unable to agree with the contention of the opposite party that the bank has paid insurance premium for the 2nd , 3rd, and 4th year amounting to Rs.27000/-. Therefore the bank is liable to return Rs.27000/- along with interest @ 7.8% p.a till realization.
It is further to be pointed out that though the complainant would claim in the complaint and also averred in the proof affidavit that he is entitled to get back Rs.170334/-. But the above claim is not in terms with Ext.B2 loan agreement. It is seen from Ext.P1 relied on by the complainant that several small amounts were debited to the account as AIC system journal, collection charges etc. What it indicate is not made known made to the Commission, either by the complainant or by the opposite party. The complainant has not disputed the recovery of that collection charges, AIC system journal etc. as not legal and proper nor as per B2 agreement. Therefore the Commission is not able to find that debiting the amount under those heads are illegal or improper.
As per paragraph 3 of the additional version filed by the opposite party the amount outstanding in the loan account of the complainant as on 06.02.2018 is Rs.37063/-. The complainant is liable to pay aforesaid amount with future interest for closing the loan account and for issuing NOC. In view of the findings in the above paragraph it is clear that Rs.27000/- with interest @ 7.8% for 4 years has been illegally realized from the complainant which would come to the tune of Rs.27000+8424= 35424/-. If that much amount is deducted from Rs.37063/- the remaining balance is Rs.1639/- alone is outstanding as on 02.08.2018. As it is clear from the available materials that the opposite party bank has realized Rs.27000/- as insurance charges for 2nd to 4th year of the pendency of the loan but not seen paid the said amount in the insurance company and at the same time the complainant has paid insurance premium and produced P2 series receipts. In the circumstances it is clear that there is deficiency in service on the part of the opposite party bank.
However the complainant has no case in the complaint that due to the above act of the opposite party he has sustained any mental agony for claiming compensation. But he would claim compensation for mental agony and Advocate fee to the tune of Rs.9000/-. As there is no pleadings regarding mental agony the complainant is not entitled to get any compensation for the same. But entitled to get a reasonable amount to meet the advocate fee and other expenses. The points answered accordingly.
Point No.4
In the result complaint stand allowed in part in the following terms.
Opposite party bank is directed to close loan transaction by receiving Rs.1639/- with agreed interest @ 7.8% p.a from 06.02.2018 and to return 2 cheque leafs if any and the supporting promissory notes obtained from the complainant while executing the loan agreement.
Opposite party is also directed to issue NOC in respect of the vehicle bearing No. KL 2 A7 5576 in case the complainant closes the loan account as stated under relief No.1. The opposite party is further directed to pay Rs.5000/- as costs of the proceedings.
It is made clear that if the opposite party refused to comply with the above directions within 45 days from the date of receipt of a copy of this order in case the complainant clear of the balance amount with interest as stated under relief no.1 failing which the complainant is entitled to execute the decree as provided under the Consumer Protection Act.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 30th day of October 2021.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 :Balakrishna Pillai.R
Documents marked for the complainant
Ext P1 : Statement of accounts
Ext.P2 series: Motor insurance certificate cum policy schedule
Witnesses Examined for the opposite party:-
DW1 : Vineeth
Documents marked for opposite party:-
Ext.B1 : Extract of ledger stored in server and maintained by Indusind Bank Ltd.
Ext.B2 : Loan agreement E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
