BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 08/02/2012

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 74/2012

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :-

The complainant availed a vehicle loan of Rs. 3,75,000/- from the opposite parties on 31-08-2011. The amount was to be repaid by 33 equal monthly instalments. The interest rate for the loan was 11.75%. The instalment due date was given as the 1^st day of every month. The 1^st due date for remitting EMI was on 14-10-2011. The 2^nd EMI was remitted on 30-12-2011. The next two EMI's were paid on 23-01-2012. Thereafter on 24-01-2012, the complainant approached the opposite party for pre-closure of the loan. Though the complainant was only liable to pay the interest at the rate of 11.75% as per the agreement, the opposite parties collected an exorbitant amount of Rs. 3,38,369/-. Altogether, they collected Rs. 4,59,845/-. The interest due to the opposite parties as per the repayment schedule till 01-02-2012 was only Rs. 33,775/-. As against the said amount, they collected Rs. 51,000/- more towards interest. The collection of Rs. 51,000/- excessively towards the interest portion is an unfair trade practice. The complainant is entitled for the refund Rs. 51,000/- along with interest at the rate of 11.75% from 01-02-2012 onwards. He is also entitled for Rs. 10,000/- towards compensation for the mental agony and hardships suffered by him due to the unfair trade practice adopted by the opposite parties. He is also entitled to get the loan termination letter forthwith along with the documents given to them together with costs of the proceedings. This complaint hence.

2. The version of the opposite parties is as follows :-

The transaction between the complainant and the opposite parties was a commercial loan transaction for the purchase of a commercial vehicle and so the complainant is not a consumer and this Forum has no jurisdiction to entertain the complaint. As per the agreement between the parties, if any dispute arises between the parties it should be referred for arbitration. The excess amount of Rs. 28,277/- was refunded to the complainant by cheque dated 16-02-2012 much before the opposite parties received notice of this complaint. By making the said refund the accounts between the complainant and the opposite parties have been settled and the complainant cannot proceed with this complaint. The complainant has suppressed the fact that 4 cheques issued by him towards payments of the 1^st four instalments were returned for the reasons dishonoured and that he did not pay any of the instalments on dates when it was payable by him. The complainant did not pay the cheque dishonour charges or interest on delayed payments for these instalments and the field visit charges of the officers of the opposite parties. Thereafter, the complainant paid the amounts as per the four instalments on 23-01-2013 to the field officers of the opposite party. On 24-01-2012, the complainant approached the 2^nd opposite party to settle the account. The payment of 30,738/- that was made by the complainant on the previous day had not been credited in the statement of accounts of the opposite parties. So without crediting the said payment, the balance amount payable by the complainant was Rs. 3,98,369 when the pre-closure request of the complainant was being processed by the 1^st opposite party in the last week of January 2012, it was found that excess payment had been made by the complainant. By the time, the complainant approached this Forum. The opposite parties have issued the loan termination documents to the complainant on 15-02-2012. There is no deficiency in service or unfair trade practice on the part of the opposite parties as alleged.

3. The complainant was examined as PW1 and Exts. A1 to A3 were marked on his side. The witness for the opposite parties was examined as DW1 and Exts. B1 to B3 were marked on their side. Heard the counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is a consumer within the ambit of the Consumer Protection Act?

2. Whether the complaint is to be referred for arbitration?

3. Whether the complainant is entitled to get refund of Rs. 51,000/- with interest @ 11.75%?

4. Whether the opposite parties are liable to pay compensation and costs of the proceedings?

5. Point No. i. :- Besides the averments of the opposite parties that, the complainant is not a consumer, nothing is on record to substantiate the same. So, the contention of the opposite parties goes.

6. Point No. ii. :- The contention raised by the 1^st opposite party is that since there is a clause in the agreement to the effect that any dispute arising between the parties should be referred to the Arbitrator, it should be honoured and hence this Forum is lacking jurisdiction to entertain the complaint. The Hon'ble Apex Court in Fair Air Engineers Vs. N.K. Modi 1996 CTJ 749 (SC) (CP), held that “even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency”. In the light of the above findings, we do have jurisdiction to proceed with this complaint and we do so. Flimsy attitude which would wrong the consumer cannot be accepted by this Forum, whatsoever especially when the same is sustained by the above finding of the Hon’ble Apex Court mentioned.

7. Point Nos. iii. & iv. :- It is not in dispute that the complainant availed himself of a vehicle loan of Rs. 3,75,000/- on 30-08-2011 from the opposite parties. It is also not in dispute that the complainant was to pay the installments @ Rs. 15,369/- per month on the 1^st day of every month and there was delay in making payments of the 1^st four installments to the opposite parties. Admittedly, the complainant pre-closed the loan account in 24-01-2012. The complainant paid the following amounts in the loan account :

8. According to the complainant, the opposite parties collected an amount of Rs. 51,000/- towards interest from the complainant in excess as against Rs. 33,775/-. On the contrary, the opposite parties contended that they omitted to account the amount collected form the complainant on 23-01-2012 ie. Rs. 30,738/- and as and when they identified the mistake they refunded Rs. 28,277/- by cheque dated 16-02-2012 drawn on HDFC Bank, Chennai. It is pertinent to note that even as per the complaint, the opposite parties collected an excess amount of Rs. 17,225/- only towards interest from him. However, admittedly the opposite parties refunded Rs. 28,277/- to the complainant that too before the receipt of the notice of this complaint from this Forum. Moreover on 15-02-2012, the opposite parties have duly issued the loan termination letter and returned the documents collected from the complainant. In that case, we do not find any deficiency in service on the part of the opposite parties prima-facie, since bonafides are not called to question. In the light of the above, the proceedings in this complaint stands closed, since we need not proceed further. For the same reasons, we do not think that compensation or costs of the proceedings are called for.

Pronounced in the open Forum on this the 21^st day of December 2013.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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