IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 27th DAY OF AUGUST 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.285/2021
N.M.Rajan, 75 years,
S/o Narayanan,
Radhamandiram, Vadakkevila Village,
Pattathanam P.O., Kollam 691021 : Complainant
V/S
Manager,
Chemmannoor Credit & Investment,
Pallimukku, Vadakkevila P.O.,
Kollam 691021. : Opposite party
ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
The complainant had pledged one pair of gold ear rings weighing ½ sovereign and availed a loan of Rs.7,000/- from the opposite party on 15.11.2018. The period of the loan was one year from the date of transaction. On 03.05.2019 the complainant had paid an amount of Rs.240/- towards interest. But the Manager of the opposite party insisted to close the loan account by paying interest @ 33% per annum along with the principal amount. The said manager had also threatened the complainant by stating that on his failure to pay the loan amount and interest the pledged item will be auctioned by them. The newly appointed manager of the opposite party demanded interest @ 33% per annum, but the complainant was ready and willing to pay interest @ 12% and on 15.05.2019 the complainant demanded a detailed statement of account for settling the transaction. Thereafter the complainant had received a notice from the opposite party under registered post within a week by demanding amount of Rs.8,062/- being the principal amount, interest, penal interest and notice charges and when the complainant approached the employees of opposite party to enquire about the demand for the exorbitant amount they threatened the complainant by stating that if the complainant fails to redeem the pledged gold ornaments they will send the ornaments forthwith to the head office for conducting auction without furnishing a proper statement. Thereafter on 09.10.2019 the opposite party had send a cheque dated 27.09.2019 for 941 and a false statement through registered post to the complainant. The auction sale made by the opposite party is without the knowledge or consent of the complainant. The opposite party did not give any notice to the complainant regarding the correct amount and interest with regard to the pledged gold which amounts to deficiency in service and unfair trade practice which caused much mental agony apart from financial loss to the complainant who was possessing much emotional intimacy with the auctioned gold ornaments as it belonged to his wife. Hence the complaint.
Though notice issued from the Forum/Commission was served the opposite party failed to appear. He was called absent and hence set exparte. Complainant filed proof affidavit by reiterating the averments in the complaint and got marked Exts.P1 to P3 documents. Ext.P1 is the Pawn chit issued by the opposite party evidencing that on 05.11.2018 the complainant has pledged one pair of studs weighing 3.25 gms for an amount of Rs.7,000/-. Ext.P2 is the Auction Notice/statement of account issued by the opposite party to the complainant and Ext.P3 is the copy of the cheque issued in favour of the complainant for an amount of Rs.941/-..
Though the complainant had filed chief affidavit along with documents he failed to appear before the commission and advance any argument. Perused records.
Complainant prays to grant 3 fold reliefs in the complaint. The first relief sought for is to issue a direction to the opposite party to calculate the excess amount collected by the opposite party in selling half sovereign of the gold ornaments pledged by the complainant and as per the present market value and to after deducting the principal amount and reasonable interest due from him. The second relief sought for is compensation to the tune of Rs.25,000/- for the mental agony and financial loss caused to the complainant due to the deficiency in service and unfair trade practice on the part of the opposite party and the last relief sought for is to award costs Rs.5,000/-.
The unchallenged averments in the affidavit coupled with Ext.P1 and P2 documents would establish prima facie that on 05.11.2018 the complainant had pledged one pair of gold ear rings weighing 3.25 gms and availed a gold loan of Rs.7,000/-. Though the complainant would claim that he has pledged half sovereign of gold ornament the Ext.P1 document produced by himself would indicate that the weight of the gold ornament is 3.25 gm and not 4 gms after deducting its dust and weight of stone. The complainant has no case that the actual weight of the gold ornaments has been shown less than the actual weight. Hence the weight shown in Ext.P1 receipt can be accepted 3.25 gm of the actual weight of the gold ornament as on the date of pledging the same.
In Ext.P1 Pawn Chit the opposite party has stated that the rate of interest up to 60 days 18% and thereafter 26% per annum. The specific case of the complainant is that the rate of interest claimed by the opposite party is 33% which is very exorbitant and they arbitrarily insisted to redeem the loan before the period agreed at the time of pledging the ear rings. According to the complainant he paid Rs.240/- towards interest on 03.05.2019. But the opposite party had demanded an exorbitant rate of 33% of interest in contravenation with the terms and conditions detailed in Ext.P1 Pawn Chit and Ext.P2 notice would indicate that he has realized 33% interest as claimed.
According to the complainant on 15.05.2019 when he requested the opposite party for redeeming the pledged gold ornament but the opposite party refused to return the same and told the complainant to pay 33% interest. Thereafter the complainant did not get any notice regarding the interest accrued for the pledged gold ornament. According to the complainant on 09.10. 2019 the opposite party had sent a registered post along with a cheque dated 27.09.2019 for Rs.941/- and a frivolous statement of account dated 09.10.2019 with regard to the auction conducted which caused much mental pressure and mental agony to the complainant. It is evident from the Ext.P2 document that the opposite party has conducted the auction sale of the pledged gold without giving proper notice, without the knowledge or consent of the complainant. Complainant is entitled to get the present market value of the gold ornament after deducting the loan amount and reasonable interest from the date of pledge. It is to be pointed out that the total interest realized by the opposite party for the loan transaction for 6 months from the date of loan till the date of auction is 240+963=1203 which is 33% as demanded by the opposite party. The maximum rate of interest charged by the nationalized bank for gold loan is 18% as on the date of pledging the gold.
It is seen from Ext.P2 document the pledged gold was sold in auction on 01.06.2019 as on those days the value of gold is Rs.3,250/-. If that is so gross amount that could have obtained by selling the 3.25 gm of gold ornament Rs.10562.5. It is clear from available materials including Ext.P2 document that the sale was conducted not in the presence of the complainant and no notice was issued intimating the date of sale or the amount including interest and other charges to be paid to avoid auction sale. However it is brought out in evidence that Rs.941/- has been received by the complainant from the opposite party as the excess amount received while auctioning the gold ornament of the complainant.
As we have already pointed out if the opposite party had charged 18% interest including penal interest he is entitled to get interest as shown below.
7000X18X6
100X12 = 630/-
It is also seen from Ext.P2 that the opposite party has charged Rs.105/- as notice charge and Rs.100/- as auction expenses. Admittedly the complainant has received Ext.P2 notice on which the opposite party is entitled to deduct Rs.35/- only. Therefore the expense to be deducted from the actual price is 7000 (loan amount) + 635 (interest due till the date of auction and Rs.35+100 expenses) .The total of the above amount is Rs.7765/-. The said amount has to be deduct sale proceed of Rs.10562.5 . Hence the remaining amount due to the complainant is Rs.10562.5-7765=2887.5. Even according to the complainant an amount of Rs.941/- has been received by him from the opposite party by way of Ext.P3 cheque as excess amount received while conducting auction of the pledged gold ornaments. The complainant has no case that he has not encashed the cheque. Therefore the said amount is deducted from amount of Rs.2887.5 which is actual due to the complainant. Therefore the total amount due as on the date of auction sale ie. 01.06.2019 is 2887.5 -941=1946.5 which is rounded to 1947.
The complainant has also requested to grant interest at the same rate as levied by the opposite party. In view of the facts and circumstances the case we are of the view that the complainant is entitled to get the very same 18% of interest charged by the opposite party. If that be so the interest due to the complainant for Rs.1946.5 from the date of auction till today ie. 39 months at the rate of 18% interest will be +1946.5x18x39
100x12 would be 1947x18x3.3 = 1156.5.
100
Therefore the total amount due to the complainant towards the balance sale consideration of the gold ornaments and interest till date will be Rs.1947+1156.5=3103.5.
According to the complainant the gold ornament has been precious to him since he is having emotional intimacy as it belongs to his wife and he desires that his wife shall wear the same till her death. It is clear from the available materials as the above gold ornament having emotional value has been sold away by the opposite party without giving proper notice to the complainant and also without giving proper opportunity to the complainant to redeem it. In an ugly haste even before completing 6 months time from the date of pledging the ornament. Hence there is deficiency in service and unfair trade practice on the part of the opposite party the claim of the complainant that he sustained much mental agony apart from financial loss is having some merit. In the circumstances the complainant is entitled to get reasonable compensation for the above deficiency in service and unfair trade practice on the part of the opposite party. In view of the facts and circumstances of the case we are of the view that an amount of Rs.2,000/- as compensation. The complainant is also entitled to get costs Rs.1,000/- of the proceedings.
In the result the complaint stands allowed in the following terms:-
- The opposite party is directed to return Rs.3103.5/- being the excess amount obtained while selling the pledged gold ornaments and its interest till date as shown above.
- The opposite party is also directed to pay Rs.2,000/- as compensation and Rs.1,000/- as costs of the proceedings to the complainant.
- The opposite party is directed to comply with the above directions within 45 days from today failing which the complainant is entitled to recover the same from the opposite party and its assets.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 27th day of August 2022.
STANLY HAROLD:Sd/-
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.P1 : Pawn chit issued by the opposite party
Ext.P2 : Auction Notice/statement of account issued by the opposite party
Ext.P3 : The copy of the cheque issued in favour of the complainant for an amount of
Rs.941/-.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
