Delhi

West Delhi

CC/11/568

Mr.Avinash Mittal - Complainant(s)

Versus

M/s HDFC Bank Ltd - Opp.Party(s)

09 Aug 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151 Community Centre, C-Block, JanakPuri, New Delhi – 110058

                                                                                                Date of institution: 29.09.2011

Complaint Case. No. 568/11                                                  Date of order:   09.08.2017

IN  MATTER OF

Mr.Avinash Mittal  S/o  Late Sh.Munshi Ram Mittal, R/o C-8/1 II Floor, Mianwali Nagar,  Sunder Vihar( PaschimVihar),   Delhi -110041.

                                                                                                                        Complainant

VERSUS

M/s HDFC Bank Ltd. ,  9^th  FloorAnsal Classic Tower, Block –J,  Community Centre Plot no. 7,Rajouri Garden, New Delh-110027.

Opposite  party

ORDER

R.S. BAGRI,PRESIDENT

            Sh. Avinash Mittalnamed above herein the complainant has filed the presentconsumer complaint under section 12 of the Consumer Protection Act against M/s HDFC Bank Ltd. herein after in short referred as the opposite party  for directions to the opposite party to refund  Rs. 24880.20  of prepayment penalty  with interest  @ 24% p.a. ,  pay Rs. 19,00,000/ as damages,  Rs. 5,500/- towards cost of litigation.

            The brief relevant facts necessary for disposal of  the present complaint as stated are that the complainant availed auto loan  of Rs. 8,00,000/-  through account no. 13690244 from the opposite party  and purchased  a new Scorpiocar bearing  registration no. DL-4 CAV-1946.  The loan was repayable in 48 equal  monthly instalments of Rs. 26,536/- commencing from 05.09.2008.  The complainant was paying the instalments of the loan regularly without any default.  On  22.07.2009the car was stolen, FIR  of theft  was lodged  with the police and   the police submitted  untrace report. Which was accepted by Illaqua Magistrate vide order dated 09.11.2009.

            That the complainant  continued  to pay the monthly instalments  of the loan regularly.  The opposite party received  a sum of Rs. 9,01,500/- from the  insurance  company and closed  the loan  account of the complainant without notice to the complainant .  The opposite partycharged  Rs. 24,880.20 as prepayment penalty . The opposite party  adjusted  Rs. 5,01,795.50 of the insurance amount and paid Rs. 3,99,704.50  on 02.01.2010 andRs.26,536/- on 11.01.2010 to  the complainant.In this way he received   sum of Rs. 4,26,240/- only.  The opposite party  on its own adjusted total amount of Rs.4,75,260/-  from the insurance amount of the car including  Rs. 24,880/-  of prepayment penalty.   The act of the opposite party  deductingRs.  24,880.20  as prepayment  penalty is illegal and amounts  unfair trade practice and deficiency in service.  Therefore, the complainant  sent a legal notice  to the opposite party to  pay Rs. 24880.20 charged on account of    prepayment penalty . But to no effect.  Hence the  present complaint for directions to the  opposite party to refund Rs. 24880.20  of prepayment penalty  with interest  @ 24% p.a. , pay Rs. 19,00,000/ as damages and Rs. 5,500/- towards cost of litigation.

            After notice   the opposite party  appeared and filed reply  while raising  preliminary objections of  maintainability, jurisdiction, concealment of  true and material facts and the complaint is false and frivolous.

             On  merits the opposite party admitted that the complainant took  loan ofRs. 8,00,000/- for purchase of new Scorpio car  bearing registration no. DL-4 CAV-1946 and asserted that the loan amount was repayable in 36 equal monthly  instalments ofRs. 26,536/- commencing from 05.09.2008.  The car was stolen  and the opposite party  received  a sum of Rs. 9,01,050/- as  insurance  amount  from the  insurance company   and the opposite party chargedRs. 24,880.20 as prepayment penalty as per terms and conditions of the loan  agreement and  rules and regulations.  All other allegations of the complainant are vehemently denied and prayed for dismissal of the complaint.

            The complainant filed rejoinder to the reply of the oppositeparty  controverting stand of the opposite party and reiterated  his stand taken in the complaint and once again prayed for directions to the  opposite party.

            When Sh. AvinashMittal  complainant was asked to lead evidence by way of  affidavit he filed his affidavit narrating  facts of the complaint.  He also relied upon  Annexure C-1 legal  notice dated 27.07.2010 ,  Annexure C-2 reply dated 31.7.2010 of the legal notice, Annexure C-3  reply  dated 04.08.2010 to the reply of the opposite party,  Annexure C-4  payment details  with the statement of accounts, Annexure C-5   cheque no. 707667 dated 25.11.2009  of Rs. 9,01,500/-,  Annexure C-6 NOC issued  by the opposite party with accompanying documents and letter dated 30.11.2009 written by the opposite party to the complainant of deduction of Rs. 24,880.20 of prepayment charges @ 5 % on outstanding principal.

            When the  opposite party was asked to lead evidence  the opposite party tendered in  evidence affidavit of Sh. Ashish  Singh  Legal Manager  narrating facts of the reply.  The opposite party  has failed to produce any document in support of  their claim. 

             The parties also submitted  written arguments in support of their respective   version. 

            We have heard learned counsel for the parties and have gone through  the complaint, reply, rejoinder and affidavit and  documents annexures C-1 to C-6 carefully and thoroughly.

             After having heard both the  sides and going through  the material  carefully and thoroughly  it is evident  that the complainant  availed  auto loan facility  ofRs. 8,00,000/- from the opposite party for  purchase  a new Scorpio car bearing  registration no. DL-4 CAV-1946.The loan was repayable in 36 equal instalments of Rs. 26,536 /-.  The car wasstolen.  The car wasinsured.  The opposite party received a sum of Rs.  9,01,500/-  insured amount of the car.  The opposite party charged  Rs. 24,880.20  of  prepayment penalty from the complainant.

            The case of the complainant is that  charges of Rs. 24,880.20 of prepayment penalty is illegal and without authority.  Therefore, there  is unfair trade practice and  deficiency  in service  on the  part of the opposite party. 

            The case of the opposite party is that they charged Rs. 24,880.20 of prepayment penalty as per terms and conditions of the agreement and in accordance  with rules.

            First of all the opposite party has failed to produce the loan agreement. Therefore, in absence of loan agreement it cannot be held that the opposite party  is entitled to recover  Rs.  24,880.20 of prepayment penalty . Hence an adverse inferenceis drawn against the opposite party.   Learned counsel for the opposite party has also failed to show any rule or regulation authorising the opposite party to recover prepayment charges.

Secondly  even if  for the sake of  arguments it is  presumed that there  was any  term of  recovery of prepayment  penalty  in case of payment of loan before date of payment  of loan instalment .  Even then the complainant did not pay the loan in  advance.   Unfortunately the car wasstolen.  The insurance company paid  theinsurance amount.  Hencethe payment of loan amount by the insurance company on behalf of the complainant is forced majoure.

Hence the opposite party failed to show that they are entitled to chargeRs. 24,880.20  on account of  prepayment penalty .   Therefore,  the opposite party  deduct  Rs. 24,880.20  as  prepayment charges forcibly  and illegally  without any authority.  Hence there is  unfair trade practice  on the part of the  opposite party.  Therefore, the complainant is entitled to recoverRs. 24, 880.20 charged by the opposite party onaccount of prepayment   penalty.  The opposite party is using the amount since 2010 and failed   to refund despite  legal notice.

Therefore, we direct the opposite party to pay Rs.  24,880.20 charged on account of prepayment charges with interest @ 9% p.a. from date of filing the present complaint till actual realization and pay Rs. 5000/- towards litigation expenses to the complainant.

Order pronounced on :09.08.2017

• Compliance of the order be made within 30 days after receipt of the order.
• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be consigned to record.

 

 

(PUNEET LAMBA)                                                              ( R.S.  BAGRI )

                         MEMBER                                                                   PRESIDENT