By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get cost and compensation for the deficiency of service.
2. Brief of complaint:- The complainant availed a loan of Rs.4,45,000/- from the opposite party for his Mahindra Logan car bearing No. KL 12 D 7279. At the time executing the loan agreement it was decided to repay the loan amount with Rs.1,54,370/- towards interest with equal monthly installments of Rs.12,750/- each from 18.05.2009. As per the terms of the said agreement the complainant repaid Rs.5,99,370/- within 12.03.2013. After that the complainant asked the opposite party to give NOC for cancel the HP endorsement from the Registration Certificate but the opposite party further demanded Rs.56,114/- as Additional Finance charge for giving NOC. The complainant further says that the opposite party have no right to ask for additional amount since the complainant has repaid Rs.5,99,370/- within the last due date as per the chart issued by the opposite party and further stated that, demanding more amount than the agreed charge is a deficiency of service and prayed before the Forum to direct the opposite party to give NOC to the complainant and also direct to pay cost and compensation due to the non issuance of NOC after completing the repayments and also prayed to give direction to the RTO to cancel the HP endorsement if the opposite party is not issuing the NOC.
3. On receipt of complaint, notice served to opposite party and opposite party entered in appearance and filed version stating that this Opposite party deny all the allegations and averments raised in the petition. The complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The only intention of the petitioner is to mislead this forum by suppressing the real facts and to knock out some illegal gains from the opposite party. There is a loan agreement executed between the petitioner and the opposite party. The said agreement specifically stipulates the parties for approaching an Arbitrator in case of any dispute arise between them. Since there is a specific arbitration clause in the agreement the jurisdiction of this hon'ble forum is ousted. The complainant has not averred that the respondent has violated any of the terms of loan agreement. On that ground also the complaint is not maintainable. The vehicle involved in the case was purchased only for commercial purpose and hence the Petitioner is not a Consumer and the claim raised is not a consumer dispute. Hence this hon'ble forum has no jurisdiction to entertain this complaint. The averment in para 2 of the complaint that the complainant had repaid the entire loan amount in installments before 12-03-2013 and when he requested to cancel the hypothecation endorsement in the RC, this Opposite party had demanded Rs.56,114/- more are absolute falsehood and denied. The averment that the complainant has paid the entire amount and he is not liable to pay any amount is absolute falsehood and hence denied. There is no deficiency of service and unfair trade practice on the part of this Opposite party. It is also not correct that irreparable damages and losses were caused to the complainant due to the deficiency of service and unfair trade practice on the part of the Opposite party. The Opposite party is a licensed financial institution extending its operation to various sectors of commerce, business and industry. The Opposite party is also advancing finance for purchasing vehicles. The complainant approached the Opposite party for a loan for purchasing a Mahindra Logan Car. An amount of Rs.4,45,000/- was sanctioned to him and the loan agreement bearing No. 957444 was executed on 26-07-2013. As per the terms of agreement, the repayment was to be made in 47 equitable monthly installments of Rs.12,750/- each, which is to be paid on the 15th day of every month and the last installment date fixed was on 19.03.2013. As per the terms of the agreement if the amount is not paid in time it attracts additional financial charges for the delayed period of payment and cheque return charges in case of dishonor of the cheques. The installments become due on the 15th day of every month. If the amount is not paid on that day, the delayed period of payment attracts additional finance charges. From 15.09.2009 onwards the complainant defaulted the installments and thereafter all the payments were effected after the installments became due. The installment which was due on 15.09.2009 was paid on 15.11.2009, and the installment which was due on 15.10.2009 was paid on 15.12.2009 and so on. Hence the complainant has to pay an amount of Rs.48,098/- ( Rupees Forty Eight Thousand and Ninety Eight Only ) towards additional finance charges. So the complainant ought to have paid a total amount of Rs.48,098/- ( Rupees Forty Eight Thousand and Ninety Eight Only ) under the above counts and demanded for the NOC. This Opposite party has not collected or demanded any amount in addition to what is stated in the agreement executed between the complainant and the Opposite party. There is no deficiency of service and unfair trade practice on the part of this Opposite party. The claim of compensation of Rs.25,000/- for the mental agony and hardship is only imaginary and is not based on any material. The Opposite party is ready and willing to issue the NOC subject to the receipt of the balance amount due from the complainant. There is no truth or bonafide on the part of the complainant in preferring the above complaint. The same is frivolous and vexatious and filed as an experimental and speculative venture with malafide motive and the same is liable to be dismissed with compensatory cost. In the said circumstances the complainant is not liable to get any relief as claimed. Therefore it is humbly prayed that this Honorable court may be pleased to dismiss the petition with compensatory cost to this Opposite party.
4. The complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A3 documents were marked. Ext.A1 is the copy of the Registration Certificate of vehicle bearing No. KL 12 D 7279. It shows that the above vehicle is hypothecated to opposite party. Ext.A2 is the statement of Account in the said loan account. Which shows that loan account total is Rs.5,86,620/-, Loan account balance is zero. Future balance is Rs.42,750/-, Additional finance charge is Rs.56,114/-. Ext.A3 is the Chart issued by the opposite party to the complainant, where the monthly installment date and amounts and total amount also written. The opposite party also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 and B2 are marked. Ext.B1 is the Loan Agreement No.957444 executed between complainant and opposite party. Ext.B2 is the statement of Account produced by opposite party wherein it can be seen that almost installments were paid in the due date and other were paid with some delay. In the last part it is stated as loan account total Rs.5,99,520/-. Loan Account Balance is zero. Future balance is zero and A.F.C due total is Rs.48,098/-.
5. On considering the complaint, version affidavits and documents and the depositions we raised the following points for consideration:-
1. Whether the complaint is maintainable before this Forum?
2. Whether there is any deficiency of service from the part of opposite party?
3. Relief and Cost.
6. Point No.1:- On the aspect of maintainability even there is provisions for Arbitration proceedings the Consumer Protection Act is an additional remedy for all the consumers. On the question that the dealing is for the commercial purpose is not proved at all. Hence the Forum found that the complaint is maintainable before the Forum. The Point No.1 is found accordingly.
7. Point No.2:- Anyway at the time of executing the Agreement itself the interest is calculated for whole the period of repayment. It means the interest is calculated for whole the amount for whole the period. The monthly installment is scheduled for the convenience of complainant and opposite party. Anyway the complainant remitted all the amount within the stipulated period. Thereafter demanding additional finance charge is an unfair trade practice, since the interest is charged for whole the period. Hence the Point No.1 is found accordingly.
8. Point No.3:- Since the Point No.2 is found against the opposite party, opposite party is liable to pay cost and compensation and the complainant is entitled for the same.
In the result, the complaint is partly allowed and the opposite party is directed to give No Objection Certificate to cancel the Hypothecation endorsement in the Registration Certificate bearing No. KL 12 D 7279 and also directed to pay Rs.3,000/- (Rupees Three Thousand) only as compensation and Rs.2,000/- (Rupees Two Thousand) only as cost of the proceedings to the complainant. The opposite party is directed to comply the order within one month from the date of receipt of this Order. On failure the complainant is entitled for an interest at the rate of 18% per annum for whole amount and on failure to issue No Objection Certificate within 31.07.2015 by the opposite party the Regional Transport Officer, Wayanad is directed to cancel the Hypothecation endorsement in Registration Certificate of the vehicle bearing No. KL 12 D 7279 without No Objection Certificate.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 10th day of April 2015.
Date of Filing: 03.06.2013. PRESIDENT :Sd/- MEMBER :Sd/- MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Joshy. Complainant.
Witness for the Opposite Party:-
OPW1. Devanandh. Manager, Mahindra Finance, Sulthan Bathery.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Copy of Statement of Account.
A3. Copy of Finance Scheme.
Exhibits for the opposite party:-
B1. Loan Agreement.
B2. Copy of Statement of Account.
Sd/-
PRESIDENT, CDRF, WAYANAD.
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