BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 344/2005 Filed on 13.10.2005

Dated : 16.08.2010

Complainant:

Rajin Lawrence, T.C 8/1448, Arayaloor, Vadakara, Thirumala, Thiruvananthapuram.

(Appeared in person)

Opposite party :

Manager, HDFC Bank, Kenton Towers, Near Kalabhavan, Vazhuthacaud P.O.

(By adv. Biju Kumar Pillai)

This O.P having been taken as heard on 30.06.2010, the Forum on 16.08.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant availed a car loan from the opposite party for an amount of Rs. 3,00,000/- in November 2001, that the said loan amount had to be repaid within a term of 5 years in 60 EMIs for which complainant had issued 60 post dated cheques to realize money from the bank, that last EMI was collected by the agent on 10^th June 2004 and complainant had approached the opposite party bank with Rs. 1,00,000/- with intention to close the balance amount as she did not want to continue with EMI, that no one was there in the opposite party's office to give correct information for closing of the loan and at last she had contacted the collection agent and handed over Rs. 1,00,000/- to close her account. Agent had given a receipt dated 18.06.2004 for the said amount, that agent had repeatedly confirmed that complainant will get the balance closure amount to close the account within one month, but the agent did not turn up nor did he contact the complainant nor did she get any response from the bank. On 7^th October 2005 opposite party's staff visited her house and demanded a closure amount of Rs. 1,17,000/- and if failed to pay in one week, agent had threatened to take the vehicle from the complainant. Hence this complaint to direct opposite party to return the vehicle's hypothecation paper to the complainant along with a compensation.

Opposite party filed version contending interalia that complainant had availed an auto loan from the opposite party for Rs. 3,00,000/- which had to be repaid within a term of 5 years in 60 EMIs with contractual rate of interest as applicable. The EMI was Rs. 6,970/- per month. Complainant had issued 60 post dated cheques and the vehicle was hypothecated in favour of the opposite party, that the loan agreement clearly stipulates that if cheques issued by the complainant were dishonoured due to insufficiency of funds or any other reason upon presentment an amount of Rs. 250/- as cheque bounce charges and over due charges would be levied by the opposite party, that complainant was supposed to pay back an amount of Rs. 4,18,200/- in equated monthly installments together with interest during a period of 5 years, that contrary to the assurance made by the complainant during the time of availing the loan the complainant turned out to be a chronic defaulter. After much attempts from the part of opposite party, complainant remitted Rs. 1,00,000/- towards the monthly installment due from her, that after making the said payment of Rs. 1,00,000/- complainant has not so far made any payment towards the loan amount, though there was an arrear of Rs. 1,68,000/-, that as on date a sum of Rs. 1,64,791/- is outstanding in the loan account of the complainant. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there is deficiency in service on the part of opposite party?

2. Whether the complainant is entitled to compensation? If so, at what quantum?

3. Whether the complainant is entitled to cost?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P5. Complainant has been cross examined by the opposite party. In rebuttal, opposite party has filed proof affidavit and has marked Exts. D1 & D2. Opposite party has been cross examined by the complainant.

Points (i) to (iii):- Admittedly, complainant availed a car loan from the opposite party for an amount of Rs. 3 lakhs in November 2001 and the loan had to be repaid within a term of 5 years in 60 EMIs for which complainant had issued 60 post dated cheques to realise money from her bank. It has been the case of the complainant that due to a discrepancy in Bank's accounting, she had to close bank account and given instructions to HDFC Auto loan section that her EMI will be paid personally due to the closure of bank account and also given instruction to Auto Loan section not to present any cheque as there is no account with HDFC Bank. It has also been the case of the complainant that after the said instruction given by her to HDFC Bank opposite party sent their agent to her house to collect monthly EMI on the specified date and accordingly opposite party collected EMIs upto 10^th June 2004, that thereafter with an intention to close the loan account, she handed over Rs. 1 lakh to collection agent vide receipt dated 18.06.2004, upon which opposite party's collection agent assured that he will issue balance statement of account in order to enable her to close the account, that even after repeated demands, there was no response from the opposite party rather kept on sending letter to her regarding bouncing of cheques, that formally on 07.10.2005 opposite party's staff visited complainant's house and demanded Rs. 1.17 lakhs and thereafter repossessed the vehicle from her if she failed to pay the balance amount in one week time. It has also been the case of the complainant that she had paid Rs. 3,23,040/- for the loan of Rs. 3 lakhs. It has been contended by the opposite party that complainant had executed a loan agreement wherein it is stipulated that if the cheques issued by the complainant were dishonoured due to insufficiency of funds or any reason upon presentment, an amount of Rs. 250/- as cheque bounce charge and overdue charges would be levied by the opposite party, that complainant was supposed to pay back an amount of Rs. 4,18,200/- in EMIs together with interest during a period of 5 years, that contrary to the assurances made by the complainant during the time of availing, she turned out to be a chronic defaulter, that complainant remitted Rs. 1 lakh while the loan account was in arrears for an amount of Rs. 1,68,000/-, that the contention of the complainant that the aforesaid payment of Rs. 1 lakh on 18.06.2004 was made towards the principal outstanding is not true and that after making the aforesaid payment of Rs. 1 lakh on 18.06.2004, she has not so far made any payment towards the loan account. It is contended by opposite party that as on date a sum of Rs. 1,64,791/- is outstanding in the loan account of the complainant. Ext. P1 is the copy of the letter dated 19.11.2001 sent by the opposite party to the complainant informing that her loan for Rs. 3 lakh has been disbursed and her auto loan account No. is 57565, that they will present the monthly installment cheque on the 2^nd of every month, that EMI amount is Rs. 6,970/-, that the post dated cheque will be banked on 02.12.2001. Ext. P2 is the copy of the letter dated 26.02.2003 from the complainant to opposite party stating that it had come to her notice that her bank account with HDFC had discrepancy as her hard earned money had been miscalculated and disappeared from her account that she is forced to close the account and informed all concerned, and requesting the opposite party not to send cheques to HDFC with effect from 02.03.2003 since she has closed the account. Ext. P3 is the copy of the account statement from 06.11.2001 to 05.08.2006. Ext. P4 is the repayment receipt dated 18.06.2004 for Rs. 1,00,000/- issued by HDFC. Ext. P5 series are repayment receipts at various dates. Ext. D1 is the copy of agreement for auto loan. As per Ext. D1 the date of agreement is 10.11.2001, loan amount is Rs. 3 lakhs, purpose for which the loan sanctioned is for the purchase of a Sen car, interest rate 14.47% p.a, Number of installments: 60, EMI Rs. 6,970/-, due date from 10.11.2001 to 02.10.2006. Ext. D2 is the statement from 06.11.2001 to 23.01.2009. According to complainant, opposite party has not mentioned receipt No. 688521 dated 03.11.2003 for Rs. 6,970/- and receipt No. 701905 dated 18.06.2004 for Rs. 1,00,000/- in the statement issued by the opposite party. She has produced the said receipts along with other receipts vide Ext. P5 series. On perusal of Ext. D2 and Ext. P5 it is seen that the due for 7^th installment was on 03.05.2002, while the cheque dated 02.05.2002 was bounced and the payment for the same was received on 24.05.2002 and opposite party charged cheque bouncing charge Rs. 250/- and Rs. 88/-towards overdue charges, that the due for 16^th installment was on 03.02.2003 while the payment received vide cheque No. 321840 was bounced and the payment for the same (in cash) was received on 18.02.2003 and opposite party charged Rs. 250/- towards cheque bouncing charge and Rs. 42/- towards due for overdue charges, again 17^th installment vide cheque 321841 was bounced on 04.03.2003 and the same was paid in cash on 07.03.2003, for which opposite party collected Rs. 250/- towards cheque bouncing charge, 18^th installment due on 02.04.2003 vide cheque No. 321842 was bounced and the same was paid in cash on 09.04.2003 for which opposite party collected Rs. 250/- towards cheque bouncing charge. 19^th installment due on 02.05.2003 vide cheque No. 321843 was bounced and payment in cash was made on 08.05.2003, opposite party collected Rs. 250/- towards cheque bouncing charge, thereafter cheques issued for EMI bounced, for which opposite party had collected cheque bouncing charges, overdue charges, that upto 26^th installment opposite party charged Rs. 250/- towards monthly cheque bouncing charges, thereafter, cheque bouncing charge enhanced to Rs. 400/-. Further as per Ext. P5 series (Receipt No. 688521 dated 03.11.2003) it is seen that opposite party has collected Rs. 6,970/- from the complainant but the said amount is not mentioned in the statement issued by the opposite party. Similarly, as per Ext. P5 series (Receipt No. 701905 dated 18.06.2004) opposite party collected Rs. 1,00,000/- which is never mentioned in the statement of account issued by the opposite party. It is pertinent to point out that opposite party has mentioned in the version that complainant remitted Rs. 1,00,000/- on 18.06.2004 towards monthly installment due from her, but a perusal of Ext. D2 would reveal that as on 11.06.2004 there was an arrear of EMIs and other charges of Rs. 22485/-. The very case of the complainant is that she had remitted Rs. 1 lakh to opposite party to close the loan account as she did not want to continue with EMI. As a responsible institution opposite party had to arrange the arrear amount of EMI and other charges upto 18.06.2004 from the said amount of Rs. 1 lakh and balance had to adjust against the principal loan amount (balance) and had to issue the balance statement of account to complainant in order to enable her for closure of loan account. This was not done by the opposite party. As per Ext. D1 agreement, the borrower shall pay Rs. 250/- or such other amount as stipulated by the bank from time to time, towards cheque bouncing charge for each time post dated cheques is returned for any reason whatsoever. Hence the realisation of Rs. 250/- from the complainant towards cheque bouncing charge upto 26^th EMI cannot be treated as illegal and unilateral, while opposite party never explained the reason for enhancement of cheque bouncing charge to Rs. 400/- from 27^th EMI onwards which will definitely be unilateral and against the principles of natural justice. In view of foregoing discussions and evidence available on records, we find justice will be well met, if opposite party is directed to include in Ext. D2 statement Rs. 6,970/- paid by the complainant vide receipt No. 685521 dated 03.11.2003, to reduce cheque bouncing charge from Rs. 400/- to Rs. 250/- from 27^th EMI onwards, to adjust Rs. 21,435/- towards arrears of EMIs (upto 32^nd EMI) and other charges upto 18.06.2004 out of Rs. 1,00,000/- paid by the complainant vide receipt No. 701905 dated 18.06.2004 and rest of Rs. 78,565/- against the net principal outstanding (loan amount) as on 18.06.2004 in the loan account of the complainant. Adjustment of Rs. 1,00,000/- paid by the complainant on 18.06.2004 for preclosure of loan account by opposite party towards future EMIs is unreasonable, arbitrary, illegal, against the principles of natural justice and contrary to the terms of loan agreement. The action of the opposite party would definitely amount to deficiency in service.

In the result, complaint is partly allowed. Opposite party shall revise Ext. D2 statement of account dated 23.01.2009, by inclusion of Rs. 6,970/- paid vide receipt dated 03.11.2003, by reduction of cheque bouncing charge to Rs. 250/- from 27^th EMI onwards, by adjustment of Rs. 21,435/- towards arrears of EMIs and other charges upto 18.06.2004 out of Rs. 1,00,000/- paid vide receipt No. 701905 dated 18.06.2004 and balance of Rs. 78,645/- against net principal outstanding (loan amount) in the loan account. Opposite party shall pay Rs. 10,000/- towards compensation which shall be adjusted towards net principal outstanding as on 18.06.2004. Opposite party shall issue fresh revised statement of account showing the aforesaid details and revised EMIs as per terms of the agreement to the complainant within one month from the date of receipt of this order. Parties shall bear their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of August 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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C.C. No. 344/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Rejin Lawrence

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the letter dated 19.11.2001 sent by the opposite party

to complainant.

P2 - Copy of the letter dated 26.02.2003 from the complainant to

opposite party.

P3 - Copy of the account statement from 06.11.2001 to 05.08.2006

P4 - Payment receipt dated 18.06.2004 for Rs. 1,00,000/- issued by

HDFC.

P5 - Series are repayment receipts at various dates.

III OPPOSITE PARTY'S WITNESS :

DW1 - Niran Viswanath.

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of agreement for auto loan.

D2 - Copy of registration details.

PRESIDENT

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