DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Consumer Complaint Case No: 242 of 2010]

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              Date of Institution : 26.04.2010

                   Date  of Decision   : 20.09.2012

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Amba Dass, r/o #208, Sector 16-A, Chandigarh.

                                  ---Complainant

V E R S U S

M/s Kotak Mahindra Prime Ltd., SCO 153-154, Sector 9-C, Chandigarh.

---Opposite Party

BEFORE:  SH. LAKSHMAN SHARMA           PRESIDENT

         MRS. MADHU MUTNEJA                 MEMBER

         SH. JASWINDER SINGH SIDHU     MEMBER

Argued By:    Sh. N.K. Mankotia, Counsel for Complainant.  

Sh. Sandeep Suri, Counsel for Opposite Party.

PER JASWINDER SINGH SIDHU, MEMBER

1.      Complainant has filed the present complaint, against the Opposite Party on the ground that the Complainant who is a Driver by profession in order to increase his meager income bought a Car No.CH-04-B-6295 by availing finance from the Opposite Party. Copy of the sale certificate is Annexure C-1. The Opposite Party sanctioned a loan of Rs.5,49,560/- for the purchase of the said car in the month of March, 2008. An amount of Rs.5,35,120/- was given to him; whereas, the 1^st installment of Rs.15,440/- was illegally deducted, even before, it became due. The Opposite Party obtained post-dated cheques for realization of future installments. The copy of the statement of account is annexure C-2 with the complaint.

        Unfortunately, in the month of Dec. 2008, the car of the Complainant was stolen, at Delhi, an F.I.R. was duly lodged with the police, and the Opposite Party, too, was informed. The Complainant claims that the Opposite Party was requested not to lodge the post-dated cheques in their possession as the remaining amount of their loan was to be paid form the insurance claim. The copy of the F.I.R. is Annexure C-3. However, the Opposite Party ignoring the request of the Complainant tendered the post-dated cheque with the malafide intention and got them dishonored. In the meantime, the insurance claim of the Complainant was honoured and an amount of Rs.6,25,467/- was received by the Opposite Party in the month of May, 2009.

        The Complainant claims that after the receipt of the insurance amount, the Opposite Party paid Rs.1,00,000/- to the Complainant and adjusted the remaining amount, without giving any details to the Complainant. Copy of the bank statement is annexed at Annexure C-4. The Complainant alleges that by this act, the Opposite Party recovered Rs.6,79,867/- from the Complainant, against the loan of Rs.5,35,120/-, thus, thereby overcharging Rs.1,44,747/- on account of interest and other charges, for a period of one year, which according to the Complainant, is usurious, illegal, inflated and unreasonable.

        The Complainant claims that the Opposite Party has overcharged Rs.80,533/- on account of unreasonable interest and other illegal charges, which were not disclosed to him. Thus, claiming deficiency in service on the part of the Opposite Party and having suffered great trouble, harassment, mental agony and tension, preferred the present complaint, claiming the following relief: - 

[a]    a direction to pay a sum of Rs.80,533/- along with interest @24% p.a. w.e.f. May, 2009, till payment against proper receipt, being the amount over charged.

[b]    Pay compensation of Rs.25,000/- for undue harassment, physical and mental agony to the Complainant, as a result of the deficiency in service on the part of the Opposite Party.

[c]    Pay Rs.5500/- towards litigation expenses;

[d]    Pass any other orders or directions deemed fit and appropriate in the facts and circumstances of the case.

        The complaint of the complainant is duly verified and supported by his detailed affidavit.

2.      The Opposite Party has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the present complaint is of the nature of a Suit for rendition of account and the same is not suggestive of any deficiency in service, on this account. In support of this contention, a judgment titled as R. Sethuraman Versus The Manager, Indian Overseas Bank and Another, III (1993) CPJ 1614, is quoted.

        Furthermore, another judgment titled as Bihar State Housing Board Versus Chairman –cum- Managing Director and Others, I (1996) CPJ 228 (N.C) is quoted, wherein it is held that the dispute in respect of the amount deposited can be settled only by re-conciliation of accounts, as well as by proof of such deposits by producing counter foils of all deposit slips or other evidence.

        Furthermore, case titled Vishal Roadways Versus Economic Traders (Gujarat) Limited, 1998 NCJ (NC) 539 is quoted, wherein it is held that if the dispute between the parties relates to settlement of accounts and the balance due on the basis of the accounts, the same does not fall within the ambit of Section 2(1)(c) and (e) of the Act. Finally, another judgment titled as Manmohan Sharma Versus M/s Dhillon Kool Drinks and Beverages Limited, Latest Himachal Law Judgments 2009 – HP 248, is quoted, wherein it is held that the question of rendition / settlement of accounts cannot be decided in summary proceedings and it can only be decided by a Civil Court.

        While mentioning the fact with regard to the loan, it is categorically stated that the Complainant had availed a loan of Rs.5,49,560/- along with processing charges of Rs.3,750/-. The amount was paid to the Complainant after adjustment of amount payable as per the loan agreement, including the advance E.M.I. In the absence of payment of any advance E.M.I., the same was adjusted against the disbursal amount, thus, no short amount was released to the Complainant. The loan was availed in January, 2008, and the repayment of the loan was made in July, 2009. A detailed tabulated list of cheques that had got bounced is also mentioned in Para 8 (at Pg.3).

        The Opposite Party claims that as the installments of the loan were not received by it, hence, the Complainant was liable to pay over-due and late payment charges, and it is also specifically mentioned that there was no understanding or agreement that in case the vehicle is not used by the Complainant, or that a theft is committed, the installments shall not be paid to the Opposite Party. The Complainant was bound to pay the installments on due dates and thus was bound by the agreement, he has entered into and in case of defaults, the Opposite Party was entitled to charge late payment charges, and over due.

        On merits, the Opposite Party has admitted the financing of the vehicle, the loan agreement, as the same being matter of record. Furthermore, the Opposite Party states that the theft of the vehicle does not take away the liabilities of the Complainant, to pay the Opposite Party the dues due towards it.

        The payments made towards the refund after the due adjustment is stated to be strictly as per the calculations and even the statement of account was provided, which is also annexed. The Complainant was not over charged in any manner. Rest all other contents of the complaint that relate to the records are admitted and the remaining are denied.  

        Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint with heavy costs.  

        The reply of the Opposite Party is duly supported by detailed affidavit of Sh. Praveen Kumar, Manager, Kotak Mahindra Prime Limited.   

3.      Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

4.      The fact with regard to the availing of loan by the Complainant from the Opposite Party is not disputed. The Complainant’s claim that he was regularly paying the installments, till the theft of the vehicle had happened, too, is established, from the statement of the Opposite Party (Annexure C-2).

5.      The vehicle of the Complainant was stolen in the month of December, 2008, and that the Complainant had reported the matter to the Police, as well as the Opposite Party. This fact too is not disputed. The Complainant claims that he failed to honour his commitment towards the regular payment of EMIs due towards him, as the very source from which he was to pay the same was got stolen, also does not absolve him of his responsibilities that he had himself agreed to fulfill by entering into the Loan Agreement, with the Opposite Party. The settlement of the claim by the insurance company in the month of August, 2009, is admitted by the Opposite Party, which had received an amount of Rs.6,25,467/-, and after making necessary adjustments, in the loan account of the Complainant, Opposite Party paid Rs.1,00,000/- to the Complainant. However, the claim of the Complainant that no detail of the necessary adjustments made by the Opposite Party was given to him, while making such deductions, from the amount of Rs.6,25,467/-, the Opposite Party in its reply/ version is again found to be vague, and has also failed to bring on record the manner in which such adjustments were made, so as to satisfy us about their conduct.         

6.      The Complainant has tendered Annexure C-2 (Statement of Account from 1.1.2008 to 10.12.2008), through which it is revealed that as on 10.12.2008, the capital outstanding towards the Complainant was Rs.4,58,511.97P i.e. at the time of theft of the vehicle, this amount of principal was due towards him. It is also found corroborated from Annexure C-4 (Statement of Bank Account of the Complainant), wherein, the details of 11 installments of Rs.15,440/- paid to the Opposite Party is found mentioned, as well as the fact with regard to the receipt of Rs.1,00,000/- on 10.08.2009 from the side of the Opposite Party, as per his admission, is also corroborated,.         

7.      We have also perused the loan agreement (Annexure R-2), as well as the Statement of Account ending 19.8.2010, wherein the entire detail of overdue interest, check bounce charges and the adjustments against the excess foreclosure to the tune of Rs.1,00,000/- on 23.7.2009 is found mentioned. Even the payment of Rs.1,00,000/- towards excess forclosure is also found mentioned on Page 14 of the reply tendered by the Opposite Party. Thus, finally, showing that on 19.8.2010, the account of the Complainant was made ‘Nil’. It is also important to notice that in the detail of the list of cheques bounced, that as many as 10 different cheques were tendered by the Opposite Party in the account of the Complainant, and all these cheques had bounced, on account of ‘insufficient funds’.  Of these 10 cheques, one cheque bearing No. 136640, of an amount of Rs.61,760/- is found mentioned, but the reply of the Opposite Party does not mention the reason as to why such a huge amount was claimed in one single cheque.      

8.      We are of the opinion that the Complainant having availed the loan was bound by each and every term and condition of the same. We are also of the view that as there was no specific clause that would put the loan agreement to rest, in case, the vehicle is lost, either due to theft, or for any other reason, thus, the claim of the Complainant, that the Opposite Party was not entitled to charge any interest, towards the principal (capital) outstanding as on December, 2008 i.e. Rs.4,58,511.97P, holds no ground. The act of the Opposite Party in producing the cheques for the recovery of installments is also in no way a deficiency in service, but at the same time, the production of a cheque of Rs.61,760/- on 2^nd June, 2009, with out any intimation is surely  objectionable, as the Opposite Party has failed to explain that towards which liability was this one single payment claimed from the Complainant. Furthermore, at the time of settling the account of the Complainant, after necessary adjustments, the act of the Opposite Party in not providing the exact details explaining, in what manner the necessary deductions were effected in the account of the Complainant, after the receipt of Rs.6,25,467/- from the Insurance Company, is surely an act of  deficient service. The complainant having served the legal notice had registered his grievance, which the opposite party chose not to redress.    

9.      It is also important to notice that the excess foreclosure of Rs.1,00,000/- adjusted in the account of the Complainant is found mentioned on page 14 of the reply/version. The relevant clause of the loan agreement (Annexure R-2) clearly states that the pre-payment interest is payable at the rate of 5% of the principal outstanding. The very document (Annexure C-2) of the Opposite Party, annexed by the Complainant, proves that the principal outstanding was Rs.4,58,511.97P. Hence, the 5% amount of this outstanding principal would only be of Rs.23,000/- approximately. The act of the Opposite Party, claiming Rs.1.00 lac against foreclosure or prepayment is totally uncalled for and highly objectionable. Thus, the claim of the Complainant seeking direction for payment of Rs.80,533/- which is in the proximity of this amount is found to be genuine and as the Opposite Party has failed to conclusively prove and convince us as to how Rs.1,00,000/- was calculated and deducted on account of foreclosure adjustments. The Opposite Party is found deficient on this score too.

10.     As the Complainant has filed replication to the reply/ version of the Opposite Party and the same is supported by his affidavit, thus, the claim of the Complainant is fortified by this replication and in the absence of any cogent, reliable and trustworthy evidence to prove that the adjustments made by the Opposite Party in the account of the Complainant are genuine, present complaint of the Complainant deserves to succeed against the Opposite Party. 

11.     In the light of above observations, we find a definite deficiency in service on the part of the Opposite Party. Hence, the present complaint of the Complainant succeeds against the Opposite Party, and the same is allowed. The Opposite Party is directed to:-

[a] To pay Rs.80,533/- claimed by the Complainant;

[b] To pay Rs.20,000/- on account of deficiency in service;

[c] To pay Rs.5500/- as cost of litigation;

12.     The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 11 above, apart from cost of litigation of Rs.5500/-, from the date of institution of the present complaint i.e. 26.04.2010, till it is paid.  

13.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced  

20^th September, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER