IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 29th day of June 2009 CC.No.13/2009 Divya.P.S, Ramar Nikethan, Post Pathiriyad, Kannur 670 740 (Rep. by Adv.Ajithkumar kattanpally) Complainant M/s.TATA Motors Ltd. Tata Motor Finance, Opp.Ramananda Oil Mills, South Bazar, Kannur 2. Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to issue clearance certificate, cancellation of hypothecation agreement to return of cheque leaves and documents, to adjust the excess amount of Rs.10, 000/- collected for insurance premium and Rs.5670/- collected excessively towards the first installment to pay the cash incentives and to pay Rs.25, 000/- as compensation and costs of this proceedings. The brief facts of the case of complainant are as follows: Complainant and opposite party executed an agreement by which complaint acquired the vehicle TATA SFC 407 bearing No.KL.13.G.2349. She has availed a loan of Rs.1, 50,000/- from the opposite party and as per the agreement; the complainant has to pay Rs.1.92, 670/- by 35 monthly installments. Final installment has to be paid on 4th February 2009. As per agreement Finance amount will be Rs., 1,50,000/- interest @ 7.25% for three years which will be 32,670/- and the insurance premium for a years will be Rs.10, 000/-. The installments were paid regularly. The opposite party caused much trouble by sending many lawyer notices with contradictory version not only to complaint but also to her father, the guarantor. In the first notice dt.11.6.07 /- she was asked to pay within 14 days, a balance of Rs.13, 441 Complainant sent reply dt.19.7.07 denying dues and overdue and demanded the receipts for the loan charges and other payments made by the complainant at the beginning and also a detailed chart pertaining to the loan repayment. It was also demanded for refund or adjusts an amount of Rs.10, 000/-already charged as insurance premium for the vehicle, which in fact paid by the complainant directly. Further she demanded to refund or adjust an amount of Rs.5670/- that was collected twice as against the agreement for the first repayment installment. As there was no repay another notice dt.5.9.07 was issued by the complainant but there was no reply. Again on 29.1.08 the complainants had issued a notice requesting the opposite party to intimate date of insurance policy as it was enquired from the insurance company but there was no respnse from the opposite party. Hence once again the complainant renewed the insurance policy from her own funds. Complainant surprisingly received another lawyer notice dt.10.7.08 from opposite party issued by P.R.Radharksihnan and Associates from Ernakulam demanding complainant and her father to pay Rs.4, 237.80 within 7 days of receipts of the notice. That notice was totally silent with regard to the grievances of the complainant. Thus the complaint was constrained to close the account with the opposite party, even though which has to be closed only in February 2009, by paying entire balance. Thus the complainant paid Rs.5, 500/- on 7.8.08 and Rs.22, 000/- on 26.9.08. Thus altogether complaint had paid Rs.1, 81,840/- by way of cash and account payee cheque. Rs.10, 000/- has already been charged by the opposite party on condition that they will pay the insurance premium. In fact, the opposite party did not pay the same and the complaint has paid the same. So, this Rs.10, 000/- will have to be added to the total amount paid by the complainant. More over Rs.5670/-also have to be added to the paid amount because this amount was received by the opposite party twice from the complainant towards the first repayment installment. Thus the complaint paid excess amount over the actual amount Rs.1, 92,670/- payable to opposite party. The complainant is entitled to get some cash incentives also. As the entire amount paid, the complaint is entitled to get the clearance certificate related to the vehicle in form 35 the cancellation of the hypothecation agreement returning of the cheuqe leaves deposited before the opposite party and other documents kept with the opposite party. Complainant paid the amount much earlier but opposite party has not cared to issue the clearance certificate in Form 35 and cancellation of hypothication agreement so also to return the cheque leaves deposited with the opposite party. This is a clear case of deficiency. Complainant sent again lawyer notice on 15.10.08 requesting to comply the demands. It was acknowledged but not replied. Hence this complaint. Though notice was served opposite party did not take care neither to appear nor to file version. Opposite party was called absent and set exparte. The evidence consist of the proof affidavit filed by the complaint and Exts.A1 to A29 marked on the side of the complainant. The main question to be decided is whether the opposite party has committed deficiency in service and the complainant is entitled to get the relief as prayed in the complaint. The case of the complaint is that an agreement was executed between the complainant and the opposite party and the complainant acquired the vehicle TATA SFC 407 bearing No.KL.13G 2349 by availing a loan of Rs.1, 50,000/- on condition to repay the amount Rs.1, 92,670 by 32 monthly installment. As per the Hire Purchase Agreement the complainant has to close account on 11.2.09. The complaint made payment much earlier to the stipulated date but opposite party did not cared to issue clearance certificate in Form 35, to cancel the hypothication agreement, and to return the cheque leaves with other documents. Complainant filed proof affidavit in tune with the pleadings. Temporary repayment schedule Ext.A1 shows that the finance amount as Rs.1, 50,000/- interest as 7.26%, insurance amount for 2 years as Rs.10, 000/- finance charge as Rs.32, 670/- and the contract amount as Rs.1, 92,670/- which has tobe repaid by 35 instalments. Ext.A2 reveals that opposite party has issued cheques for Rs.1, 44,330/-. It confirms complainant’s case that the cheque issued after deducting the amount of 1st installment Rs.5, 670/-. Ext.A3 (1) and (2) proves that the payment of installments have been regularly made by the complainant. Tata Motors Ltd. Sent legal notice dt.11.6.2007 demanding the complainant to pay a sum of Rs.13, 441/-alongwith accrued expenses and accured over due charge. Ext.A6 shows that complainant has replied for the lawyer notice Ext.A4 and A5 complainant categorically denied the allegations made in Ext.A5 notice and pointed out the liability shown to pay Rs.13, 441/- in an error happened in the computation on the side of opposite party. Since they had collected it from the complainant. It has also pointed out that the insurance premium is to be paid by the opposite party. It can be seen from Ext.A1 repayment schedule that opposite party has agreed to pay the insurance premium on charging Rs.10, 000/- from the complainant. Ext.A6 clearly stated that the repayment schedule would show that the amount of insurance premium was being paid by complainant but opposite party did not pay the insured premium. The insurance company intimated the due date for the payment of the insurance premium to complainant. Though complainant approached the opposite party’s Kannur office but they kept mum and complainant remitted the amount of premium. Opposite party did not reply to Exct.A6. That itself can be taken as an admission of what is alleged by the complainant. The opposite party also did not take the payment of first installment on account. Ext.A6 demanded to return both these amounts or to adjust the amount towards installments. Non-reply of this notice itself shows deficiency in service on the side of the opposite party. Ext.A18 is the reminder sent by the insurance company to complainant. Ext.A19 proves that the complainant has paid insurance premium, Ext.A2 has already proved that the cheques issued to complainant after deducting the first installment. The finance amount was Rs.1, 50,000/-. Ext.A2 cheque issued for Rs.1, 44,330/- only. It is undoubtedly clear that the fist installment amount Rs.5, 670/- if deducted i.e. Rs.1, 50,000/- - 5670/- = Rs.1, 44,330/-. The opposite party is liable to adjust this amount. Ext.A7 postal receipt and Ext.A8 acknowledgement make it assure that complainant has sent the notice Ext.A6. Ext.A10 postal receipt and acknowledgement Ext., A11 proves that complainant also sent lawyer notice Ext.A9 with the same demands raised in Ext.A6. Ext.A13 postal receipt and A14 acknowledgement reveals that complainant has sent Ext.A12 notice informing the issue of non-remitting of insurance amount. Ext.A16 and 17 reveals that the same information to non payment of insurance amount has been informed to opposite party’s Bombay office by lawyer notice Ext.A15. It is not because of mistake or lack of information but a deliberate act of not doing which purely an act of unfair trade practice. Complainant has sent several notices but opposite party did not reply to any one of those notices. This is nothing but deficiency in service. The lawyer notice sent by the opposite party on 10.7.08, Ext.A20 and 21 demanded to pay Rs.42, 127/-. It looks quite wonderful sending such a notice keeping continuous silence to several letters send by the complainant. It is an attempt of hiding the truth to extract money from the complainant. Ext.A6 quite clearly stated about the payments and demanded either to get refunded or to adjust towards the repayment. Ext.A6 lawyer notice was not replied by opposite party. Ext.A6 is relevant not merely because it denied the liability of payment of Rs.13, 441/-. It has specifically alleged that the opposite party is liable to refund of 1st installment Rs.5670/- that was collected twice and Rs.10, 000/- the insurance premium that the opposite party was bound to make payment. Ext.A1 repayment schedule reveals that Rs.10, 000/- has been charged from the complainant. Hence opposite party is bound to give legal reply to complainant with respect to that payment, without which there is no meaning in sending a new notice like Ext.A20 and 21 for demanding of any payment. The same allegation repeated in Ext.A9 lawyer notice. But opposite party did not care to send reply. The way of dealings on the part of opposite party makes clear that opposite party is liable for deficiency in service. However it has to be examined whether the contractual obligation on the part of complainant has been fulfilled or not. Ext.A4 and 5-dt.11.6.07 lawyers notice sent by opposite party demanded complainant to pay Rs.13, 441/- that was replied by complainant through Ext.A6 lawyer notice dt.19.7.07. Complainant denied the liability of payment of Rs.13, 441/- and reminded opposite party that it is only an error of calculation. Complainant further contended that the payment was made through the bank as per the instructions from opposite party’s Kannur branch. The amount was deposited l in advance before due date and opposite party is at liberty to collect the amount from the bank. Ext.A3 (1) and (2) reveals that amount has been deposited well in advance. The complainant alleged in Ext.A6 that opposite party has twice charged the amount of 1st installment Rs.5670/- and thus complainant is entitled to get it refunded. The 2nd allegation that arose in Ext.A6 is with respect to payment of insurance premium. Complainant alleged that opposite party charged Rs.10, 000/- towards insurance premium but that was not paid and finally complainant himself constrained to make payment of that amount Rs.10, 000/- on information by insurance company. Complainant requested opposite party to adjust these two amounts either to adjust towards the payment of installments or to refund the amount. Complainant also demanded to issue receipts for the loan charges and other payments already made by the complainant at the beginning and also detailed chart pertaining to the loan repayment. But opposite party did not reply the notice. Ext.A6. Ext.A7 postal receipt and A8 intimation proves that complainant has sent Ext.A6 lawyer notice to opposite party. Ext.A1 temporary repayment schedule reveals that opposite party has charged Rs.10, 000/- as insurance premium for 2 years. The amount of loan was Rs.1, 50,000/-. The complainant caatagorically stated that the cheque No.035394-400-240003-900022-29 dt.11.4.06 of HDFC BANK gave the cheque amount after deducting the first installment amount Rs.5670/-. Thus Ext. A6 notice was not merely a reply lawyer notice to Ext.A4, and 5 but also a demand notice to refund or adjust Rs.15, 670/-. Non-reply of this notice can only be considered as an admission on the part of opposite party that he is liable for the amount. Exty.A10 postal receipt and A11 acknowledgment shows that complainant has sent opposite party another lawyer notice dt.5.9.07 demanding to adjust Rs.15, 670/- But opposite party did not care to sent reply. Ext.A12 and 15 are another notice requesting again to refund or adjust the amount mentioned in the notice and to reply the notice. But opposite party did not respond to those notice also. Opposite party who has been kept silence to the above said notices sent by complainant, issued Ext.A20 and 21-lawyer notice dt.10.7.08 demanding to pay Rs.42927/-. Ext.A22 DT. 25.7.08 is the reply sent by the complainant to Ext.A20 and 21. Ext.A23 postal receipt andA24 acknowledgement proves that complainant has sent Ext.A22 to opposite party and they received thesame. Complainant denied the contention of opposite party with respect to the penal interest of 36% and collection charge of 4% incase of fault. Complainant also denied the allegation of opposite party that she is in due Rs.42, 127/-. Complainant again requested in Ext.A20 either to refund or to adjust the amount Rs.16, 570/- that was charged by opposite party at the beginning from the complainant. Ext.A20 and 21 further requested to issue complainant the receipts for the loan charges and other payments already made at the beginning and to issue a detailed chart pertaining to the loan repayment made by the complainant. Ext.A20 and 21 contains no mention of any previous communication. That also proves that opposite party did not reply any one of the previous notices sent by complainant. Hence keeping away from the specific allegation without replying it will have the effect of admission. Complainant alleged that under such circumstances she has sent Ext.A25 notice dt.15.10.08 to opposite party informing that no reply to the notices compelled the complainant to close the loan by paying the future balance amount. Ext.A26 and 27 shows that complainant has sent Ext.A25 notice to opposite party. Ext.A28 receipt for Rs.5, 500/- and A29 receipt for Rs.22, 000/- is seen paid on 7.8.2008 and 26.9.2008 respectively. Ext.A25 categorically stated that complainant has altogether paid Rs.1, 92,670/-, which is excess since she is actually bound to pay Rs.1, 92,000/- only. She has also made it clear that Rs.1, 81,840/- paid by way of cash and account payee cheques. Rs.10, 000/- insurance premium thought charged by opposite party at the beginning and failed to remit and hereby complainant herself required to pay on information from insurance co. Hence she is entitled for refund of Rs.10, 000/-. So also she is entitled for refund of Rs.5670/-, which was charged twice as the 1st installment payment. It is seen all the notices repeatedly reminded of these two amounts. Hence opposite party is liable to adjust both these amounts. Complainant stated that the last installment as per the agreement have to be paid only in February 2009. Even if it is so complainant paid the entire amount well in advance. Complainant says that since the amount has been paid earlier she is entitled for cash incentive. But there is no evidence to this. On going through the evidence on record it can be seen that the complainant prior to the closing of agreement date has paid the loan amount. Opposite party did not mind to reply any one of the legal notice send by the complainant. Hence we have no hesitation to hold that there is deficiency in service that amounts to unfair trade practice on the part of opposite party and thereby liable to meet the damages sustained by the complainant mentally, physically and financially. The opposite party is liable to 1. Adjust Rs.15670/- charged excessively from the complainant at the beginning. 2.issue clearance certificate; in form 35’ 3.Cancellation of hypothecation agreement; 4.Return the cheque leaves deposited with opposite party and other documents submitted by the complainant. 5.payh Rs.5000/- as compensation with 10% interest from the date of order to realization and to pay . 6.Rs.500/- as cost of these proceedings. Order passed accordingly. . In the result, the complaint is allowed directing the opposite party to 1.Adjust the amount of Rs.15, 670/- (Rupees Fifteen thousand six hundred and seventy only) that was excessively charged from the complainant at the beginning. 2.Issue a clearance certificate in form 35. 3.Cancel the hypothecation agreement. 4.Return the cheque leaves deposited with opposite party and other documents submitted by the complainant, 5.Pay Rs.5000/- (Rupees Five thousand only) as compensation with interest @ 10 % from the date of order till realization. 6.pay Rs.500/-(Rupees five hundred only) as cost of these proceedings. The opposite party shall comply the order within one month from the date of receipt of this order failing which the complainant is allowed to execute the order against the opposite party as per the provisions of the consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Temporary payment schedule issued by OP A2copy of the cheque issued from HDFC Bank A3.Passbook issued from Kuthuparamba co.op.rural Bank A4. & A5.Copy of the lawyer notices dt.11.6.07 sent to OP A6.Copy of the reply noitc A7. Postal receipt A8.Letter dt.4.9.07 issued by customer care centre, Thalassery. A9.Copy of the lawyer notice dt.5.7.07 sent to OP A10. & 11.Postal receipt and AD card A12.Copy of the lawyer notice dt.29.1.2000 A13 & 14.Postal receipt and AD card A15. Copy of the lawyer notice dt.29.1.08 sent to OP A6 & 17.Postal receipt and AD card A18.Policy issued by National Insurance company A19.Reminder issued by Insurance company. A20 &A 21..Reply notice dt.10.7.08 sent by OP A22.Copy of the lawyer notice dt.25.7.08 A23 &A24.Postal receipt and AD card A25.Copy of the lawyer notice sent to OP dt.15.10.08. A26.Postal receipt A27.PostalAD A28 & 29.Copy of the receipts dt.7.8.08 and 26.9.08 issued by OP Exhibits for the opposite party:Nil Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur | 
