By  Sri.M.P.Chandrakumar, Member

          The complainant purchased a Tata Ace pickup Van from M/s.Sakthi Automobiles Ltd., for  doing pickup service, with a view to have his livelihood.  The vehicle was hypothicated   to the opposite parties, since they provided a vehicle loan of Rs.2,00,000/-.  According to the purchase terms, the complainant was to make a down payment of Rs.42,149/-,  retaining the loan amount of Rs.2,00,000/- , Rs.11,600/- to be paid  towards insurance coverage upto 3 years  and Rs.42,180/- as finance charge, aggregating the loan amount as Rs.2,53,780/-.  Accordingly, the complainant paid the initial amount of Rs.6,949/- and 34 post dated cheques of Rs.7,250/- each,  to the opposite parties during October 2006 itself, which they presented through bank, in 34 subsequent months and encashed without fail.  But in between, the complainant received letter dated 12/1/2009 from the  opposite party company’s legal department to pay the balance due of Rs.11,376/-. Penalty interest of Rs.3,211/- and also the monthly instalment of Rs.7,250/-, failing which the complainant will have to pay an additional sum of Rs.1051/- as interest plus Rs.1649/- and Rs.1800/- as legal expenses.  The complainant also received another letter dated 3/3/2009 from the legal department mentioning that the complainant has to pay Rs.23,224/- towards O.D an amount of Rs.12080, OD charges of Rs.3896/-and EMI of Rs.7250/-. If the matter is settled, 5% reduction will be given on penalty interest.  Letters were also received to pay small sums like Rs.100/-, Rs.350/- etc. as retaining charges.  Since the opposite parties failed to give any specific explanations as regards the  above amounts, the complainant contacted them several times over phone and  in person and also issued a lawyer notice dated 24/3/09, for which no communication was received, from the opposite parties.  After completing the repayment of the loan by August 2009, the complainant approached the opposite parties with his bank statement and requested to issue the ‘letter of clearance’ to get the vehicle   dehypothecated from RTO.  But the opposite parties did not issue the same.  In the circumstances,   the complainant sent a registered letter dated 3/11/2009, with a copy to their  Mumbai and local office in the matter , for which, neither the clearance letter nor reply received.  Since the vehicle is practically lying  idle without any work and thereby without any income on the capital invested, the complainant wants to dispose this vehicle and purchase a new one for which dehypothecation  was necessary.  But the opposite parties are not issuing the letter of clearance even after five months of remitting the loan amount. On the other hand, they are claiming undue amounts, threatening the complainant with legal action, mentally harassing the complainant by sending unnecessary communications.  The petitioner is  incurring a lot of expenditure by way of telephone calls, personal visits, lawyer notices etc.  The above actions amount to deficiency of service and unfair trade practice and hence the complaint filed, praying to direct the opposite parties to issue the letter of clearance in addition to compensation and costs.

          In the version filed, the opposite parties states that the complainant had entered into loan cum hypothecation cum guarantee agreement bearing  No.500001021 dated 11/10/2006 with the opposite parties, as per which the complainant had agreed to pay Rs.6949/- for the  1^st months instalment and thereafter  Rs.7250/- per month, for the balance  instalments from  11/10/2006 to 11/8/2009, finance charges of Rs.42149 and also insurance charges Rs.11600/-.  But the complainant has defaulted in repayment in respect of the instalment Nos.4,9,13,17,19,21,25 and 35 delayed payment in respect of instalment Nos.2,5,12,16,18,20,24,28,29,30,31,32,33,34 and also paid part payment in respect of instalment Nos.3,15,22,23,26 and 27. The defaulted late and part payments by the complainant have resulted in delayed payment charges or accrued overdue charges.  Moreover, the cheques issued by the complainant have been regularly dishonored, due to insufficient funds.  Cheque Nos.192379 and 192385 have been dishonored  due to insufficient funds, which has resulted in bank charges of Rs.200 per dishonor, totalling Rs.472.50. The opposite parties had to sent to the  residence of the  complainant their officers/agents to collect the defaulted instalments, which has resulted  in retainer charges of Rs.10700/-.  The opposite parties had also to incur legal expenses of Rs.3.50, stamp recovery of Rs.1150/- and Rs.7405/- extra towards insurance provision.  On 26/4/2011, the opposite party has incurred expenses of Rs.19731/- towards document charges, stamp recovery bank charges, retainers charges, legal expenses etc.  As a method  of appropriation, mentioned in Clause (7) of the  agreement, the opposite parties has appropriated an amount of Rs.14981/-, collected from the complainant towards the expenses incurred and an amount of Rs.4750/-  is due, as on 27/6/2011.  The complainant has applied voluntarily for the loan, after fully knowing well, the terms and conditions of the  loan , including interest, instalment, repossession, terms, sales options etc. and hence  cannot make, at this belated stage, any allegation or challenge the terms and conditions.  As such, the  complainant has filed this complaint, just to counterblast  the outstanding claim of Rs.33932.31 to the opposite parties, on 27/6/2011, which includes the accrued overdue instalment of Rs.13830/- overdue charges  or late payment charges of Rs.15352.31 and Rs.4750/-.  The contention of the complainant to issue NOC without making full payment of the outstanding dues  of Rs.33932.31, as on 27/6/2011 is against the terms and conditions  of the agreement and there cannot be any deficiency of service or unfair trade practice on the part of the opposite parties.  The complaint be, therefore, dismissed with costs.

          The points for consideration are :

1. Is there any deficiency of service and unfair trade practice on the part of the 2^nd respondent?
2. If so, compensation and costs.

          Evidence consists of oral  testimony of PW1 and Exhibits P1 to P9,P11,P12 and R1 to R8 marked.

          The main prayer of the complainant is to direct the opposite parties to issue the letter of clearance, since he has completely repaid the loan amount.

          The contentions raised by the opposite party, for not issuing the ‘letter of clearance’ is that the complainant is yet to remit, as on 27/6/11, an amount of Rs.33932.31, being the accrued overdue instalments of Rs.13830, late payment charges of Rs.15352.31 and Rs.4750/-, which occurred due to defaulted late and part payment   charges, the bank charges resulting from the dishonoring of two cheques, the expense incurred to the opposite party towards the sending of their officers/agents to the  complainant’s  residence to collect the defaulted instalments and also legal expenses, stamp charges etc.

          As against this, the complainant argues that he had already given 34 post dated cheques, Nos.192376 to 192400 and 376351 to 376359, in  advance, to the  opposite parties .    All of them have been encashed, on  presentation of them, by the opposite parties at the bank, which is only due to the  availability of sufficient amounts in the bank A/c of the complainant.  As such, there is no question of  delated payments, part payment or non-payment and hence there is no question of any dues from the complainant viz. retainer fee, delayed payment charges, overdue instalment etc.  The opposite parties could neither bring any objection nor any counter this statement, nor had they been able to produce any authentic documentary  proof to substantiate  their version as against the original bank statement submitted by the complainant as Exhibit P9.

          The argument being so, the Forum has studied the records, in detail and would wish to point out the following:

1. The opposite parties in para 3 of the parawise reply of the version

Filed, agrees that the complainant was liable to remit a total amount of Rs.253780/- towards the  loan, whereas in para 4, the opposite parties admits that the complainant  has already paid an amount of Rs.254931/-.  The opposite parties thus, themselves admits that the complainant has remitted back the loan amount.

2. The opposite parties, in the version filed, admits the fact regarding the  depositing of 34 postdated cheques with them, by the complainant.  The cheques  thus being with them,  it was the duty / responsibility of the opposite parties to present  the cheques in the  respective bank of the complainant,  on the stipulated day of 11^th of every month.  The complainant cannot be blamed for non-presentation of the cheques in time by the opposite parties.

3. The allegation of defaulted payment, late payment etc. cannot be attributed to be the fault on the part of the complainant.  This is because, on verification of Exhibit P9, it is seen that the opposite parties has presented most of the cheques only after 15^th of the month, instead of presenting the cheques on 11^th of the month.

4. Exhibit P9, the statement of accounts during the period, of South Indian Bank, Thrissur, in respect of the complainant’s bank accounts shows that there was sufficient funds on all days, especially on the 11^th of the respective months.  As such,  the argument of the opposite parties in respect of dishonoring of two cheques presented, due to insufficient funds, cannot be accepted.  If the argument of dishonoring was true, the opposite party could have either produced some proofs of the same or the same might have reflected in Ext. P9.

          The records of the case, thus goes on to prove that the complainant is not responsible for the accrued overdue instalments of Rs.13,830/-, late payment charges of Rs.15,352.31 and Rs.4750/- due to the defaulted, late and part payment charges etc. totaling Rs.33,932.31.  As such, the denial of the “letter of clearance”, for not remitting the above amount can’t be considered as “justifiable” to the Forum.  Due to the non-issue of the ‘letter of clearance’, till date, by the respondents, even after completing the remittance of the entire loan amount by 8/2009, the Forum is convinced, that the opposite parties have committed ‘deficiency of service’.  The act is also an instance of “unfair trade practice” and has created mental harassment and also expenses by way of telephone calls, personal visits, lawyer notices etc. to the complainant. According to the complainant, he has also incurred heavy financial loss, since the vehicle could not be effectively utilized and the petitioner is not being able to sell the same due to the hypothecation.

          In the result, considering all the above, the complaint is allowed and the opposite parties are directed to issue the “letter of clearance” to the complainant, within a month of the date of receipt of copy of this order.  The Forum also considers seriously, the untold expenses, miseries and various difficulties experienced by the complainant, due to the ‘non-issue of the clearance certificate by the opposite parties even after repayment of the loan by August 2009. This is a case in which, a genuine consumer who is sustained to unnecessary heavy hardship, with huge monetary  loss, as well as mental agony only because of the irresponsible and utter negligent act of the opposite party.  Therefore, we are of the opinion that such practices should be curtailed by imposing heavy penal compensation.  Hence, we order the opposite party, to pay Rs.1,00,000/- (Rupees one lakh only) as compensation and cost to the complainant within one month from receiving the copy of this order. 

            Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the  20^th day  of  May  2015.