IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 19th day of December, 2009. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.64/07 Between: R. Madhu, Proprietor, Sandhya Flames, Aranmula.P.O., Pathanamthitta Dist. ..... Complainant. And: - M/s. ICICI Bank Ltd.,
2nd Floor, Skyline, Citadel Complex, Kanjikuzhi, Kottayam – 686 004, Rep. by its Branch Manager. - M/s. ICICI Bank Ltd.,
Aban Towers, Pathanamthitta Branch, Rep. by its Branch Manager. Addl. 3. Kodak Mahindra Bank Ltd., Vinay Bhavia Complex, 6th Floor, 169 A CST Road, Kaline, Santhacruze East, Mumbai – 400098, Rep. by its Manager. (By Adv. Roy Thomas) ..... Opposite parties. O R D E RSmt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint in brief is as follows: For purchasing a Mahindra vehicle the complainant had availed a loan as loan No.LVPTH00001693209 from the 1st opposite party. The price of the said vehicle was Rs.3,85,000/- after deducting the special offer of Rs.8,000/- the complainant has to pay an amount of Rs.3,77,200/-. As a margin money the complainant had paid an amount of Rs.50,200/- at the time of purchasing the vehicle and for the balance amount of the price of the vehicle he had taken loan from the 1st opposite party. The loan amount was Rs.3,27,000/- and the complainant has to pay 36 instalments commencing from 15.12.2003 onwards. As per the loan agreement the rate of interest is diminishing and he has liable to pay an amount of Rs.30,411/- as interest to the loan amount. At the time of sanctioning the loan the 1st opposite party had received a cheque bearing No.003936 for Rs.3,78,192/- drawn at Central Bank of India, Aranmula Branch as a security to the loan amount. 3. The complainant had paid 1st instalment of Rs.11,915/- on 20.11.2009 along with margin money by way of demand drafts as advised by the 1st opposite party. After that the complainant paid all the instalments very promptly by demand drafts and sent to the 1st opposite party by registered post as per the loan agreement. The complainant paid his last instalment on 6.10.2006 and after that he demanded to release the No Objection Certificate and to return the cheque already obtained from him as a security. Instead of releasing the documents 1st opposite party issued a legal notice to the complainant raising false allegations. More over the agents of the 1st opposite party frequently called the petitioner and threatened that they will seize the vehicle. On 3.3.2004 and on 15.12.2005 the complainant had sent notice to the 1st opposite party stating all the facts after that one agent approached the complainant and collected photocopies of records and assured that he would do the needful. But no documents were returned as agreed by him. 4. On 5.6.2008 3rd Addl. opposite party had issued a letter to the complainant and demanded to pay an amount of Rs.34,324/- together with interest from 30.11.2007 till the date of actual realization. The complainant had no contractual obligation with the 3rd opposite party. As per the terms and conditions with the 1st and 2nd opposite party the complainant had paid entire loan instalments due them within time. The opposite parties have no right to seize the complainant’s vehicle. After the payment of entire loan amount the complainant is entitled to get the No Objection Certificate and the cheque received from him. The non-payment of these documents is a clear deficiency in service and unfair trade practice of opposite parties, which caused mental agony and other incontinences to the complainant. Therefore the complainant filed this complaint against the opposite parties for getting an order for directing the 1st opposite party to return the no objection certificate of the vehicle No.KL-3J/7847 and the cheques bearing No.003936 worth Rs.3,78,192/- and for getting compensation and cost. Further to direct the Addl. 3rd opposite party not to proceed against the complainant on the basis of mistaken accounts or seize the complainant’s vehicle. The complainant prays for granting the relief. 5. The opposite parties 1 and 2 filed a common version stating the following contentions:- The complaint is not maintainable either in law or on facts. The complainant is not a consumer as per C.P. Act and he availed the service of opposite party for commercial purpose. The complainant had availed a commercial loan of Rs.3,27,000/- from them. As per the agreement the complainant has to be paid one instalment of Rs.11,964/- in advance. The balance amount to be repaid at the rate of Rs.11,914/- per month from 15.2.2003 to 15.10.2004. After that Rs.10,424/- per month from 15.11.2004 to 15.10.2005 and Rs.7446/- per month from 15.11.2005 to 15.10.2006. The statement of account of the complainant shows that there are three instalments Rs.10,424/- payable on 15.9.2005, Rs.7,446/- payable on 15.3.2006 and Rs.7,446/- payable on 15.6.2006 have not been paid by the complainant. As per the records, the complainant is a defaulter and hence issued legal notice. If the complainant is ready to give proofs for this payment, they are ready to check the mistakes occurred. The opposite parties are ready to issue the no objection certificate on settlement of the loan accounts. There is no deficiency in service or unfair trade practice from opposite parties, which caused mental agony or damages to the complainant. Hence the opposite parties 1 & 2 pray for the dismissal of the complaint. 6. 3rd addl. opposite party has not appeared or filed version since he set exparte and remains as such. 7. The points for consideration in this complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Relief and Costs? 8. The evidence in this case consists of the proof affidavit and 7 documents filed by the complainant. On the basis of the proof affidavit the complainant was examined as PW1 and the documents produced were marked as Ext.A1 to A7. PW1 has not been cross-examined by the opposite parties. For the opposite parties, there is no oral or documentary evidence. After closure of the evidence, both sides heard. 9. Point No.1:- The complainant had availed service from the opposite parties for purchasing a Mahindra Pickup Van. The purchasing of pickup van only is not constitute a commercial purpose. The opposite parties should have to prove that the complainant is used this vehicle for commercial purpose and he is not a consumer as per C.P. Act. The dispute is regarding the deficiency of service after the re-payment of the loan amount. The complainant availed service from the opposite parties and the complainant is a consumer of the opposite parties, the dispute between the complainant and opposite parties are a consumer dispute. Therefore this complaint is maintainable before the Forum. 10. Point Nos. 2 & 3:- The complainant’s case is that the complainant entered into a hire purchase loan agreement with the 1st opposite party. As per the agreement he had duly paid all the instalments of loan amount and after the payment the complainant demanded to issue No Objection Certificate and the cheque bearing No.003936 received from the complainant as the security of loan. But the opposite parties declined to issue the above said documents and hence he filed this complaint. 11. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Ext.A1 to A7 were marked. Ext.A1 series (35 in No.) is the copy of 35 Demand Drafts sent by the complainant to the opposite parties as the payment of loan instalment. Ext.A2 is the copy of Advocate Notice sent by the complainant to the opposite parties. Ext.A3 is the postal receipt of Ext.A2. Ext.A4 is the acknowledgment card of the Ext.A2 signed by the 1st opposite party. Ext.A5 is the acknowledgement card for the acceptance of Demand Draft of the instalment on 10.3.2006. Ext.A6 is the acknowledgement card for the acceptance of Demand Draft of the instalment on 8.6.2006. Ext.A7 is the letter-dated 5.6.2008 issued by the 3rd opposite party to the complainant. The opposite parties have not cross-examined the complainant. 12. The opposite parties 1 and 2 contended that the loan account of the complainant has not been settled and the statement of account of the complainant’s account show that the 3 instalments of the loan is pending due. If the complainant ready to give proofs to the payments they are ready to check the mistake occurred. After settling the account they are ready to issue no objection certificate to the complainant. 13. In order to prove the contentions of opposite parties there is no oral or documentary evidence from the part of them. 14. It is an undisputed fact that the complainant had availed a hire purchase loan from 1st opposite party for an amount of Rs.3,27,000/- for purchasing a Mahindra Vehicle. According to him, he had paid all the instalments on due date without any default as per the terms of loan agreement. For proving all these payments the complainant had produced the copies of Demand Drafts sent to the 1st opposite party, i.e. Ext.A1 series (35 Nos.). After the last payment on 6.10.2006 the complainant demanded to release the no objection certificate and the cheque already given by him to the 1st opposite party as a security to the loan amount. But the opposite parties are not ready to return these documents. 15. Opposite parties contended that as per the statement of accounts of the complainant’s loan account 3 instalments, i.e. due on 15.9.2005, 15.3.2006 and 15.6.2006 is pending hence they cannot issue the no objection certificate to the complainant. 16. On going through the evidences in this case the Ext.A1 series, the copy of D.D’s in favour of the 1st opposite party for the payment of loan instalments made by the complainant, it is seen that the complainant had paid all the instalments from 15.12.2003 to 15.10.2006 without any default. The copy of Demand Drafts for the payment of the months 9/05, 3/06, 6/06 is also included in Ext.A1 series. It is seen that on 12.9.2005 the complainant had taken a Demand Draft for Rs.10,424/- in favour of the 1st opposite party and on 7.3.2006 and 5.6.2006 the complainant had taken D.S’s for Rs.7,446/- each in favour of the 1st opposite party. These Demand Drafts clearly proves that the complainant had remitted the instalments of these months. More over Ext.A5 and A6 acknowledgement cards proved that the complainant had sent Demand Draft on 10.3.2006 and 8.6.2006. These documents also clearly prove that the complainant had sent the Demand Drafts of the instalment for these months and there is no default from him. 17. The opposite parties have not made any attempt to rebutting these documents or corroborating their contentions. They have not produced the statement of account of the complainant’s loan account. If there is any default in payments it can be seen from the statement of accounts. The materials on Ext.A1 series clearly show that the complainant had paid all the loan instalment without any default. In the absence of the statement of accounts of the complainant’s loan account and any other cogent evidence to prove the default of loan instalment by the complainant, the contentions raised by the opposite parties are not sustainable. After receiving all the loan instalments from the complainant the non-issuance of no objection certificate and the cheque received from the complainant by the opposite party cannot be justified. The complainant is entitled to get the No Objection Certificate and cheque received from him. In the circumstances, we find there is a clear deficiency in service from the part of 1st opposite party by non-issuing the No Objection Certificate and other documents to the complainant’s vehicle after paying all the loan amount. The non-issuance of these documents by the opposite party caused mental agony, financial loss and other inconveniences to the complainant, for that the opposite party is liable to compensate to the complainant. Therefore the complainant is entitled to get compensation and cost from the opposite parties. 18. As regard the contractual obligation of the complainant with the 3rd opposite party for the issuance of Ext.A7 demand letter the 3rd opposite party has not appeared or produced any document for proving the complainant’s obligations to 3rd opposite party. In the absence of any evidence to prove the contractual obligation of the complainant with 3rd opposite party the complainant is not liable to pay any amount to the 3rd opposite party and the 3rd opposite party has no right to seize the complainant’s vehicle for the non-payment of the amount demanded by the 3rd opposite party through Ext.A7 letter. On the basis of the discussions above, the complainant’s prayer can be allowed. 19. In the result, this complaint is allowed thereby the 1st opposite party is directed to release the No Objection Certificate of the complainant’s KL.3J-7847 Mahindra vehicle and the cheque bearing No.003936 for Rs.3,78,192/- received from the complainant as a security to the complainant at the time of taking the loan. The opposite party is also directed to pay an amount of Rs.5,000/- (Rupees Five Thousand only) as compensation along with a cost of Rs.1,500/- (Rupees One Thousand Five hundred only) to the complainant. The order will be complied within two months from the date of receipt of this order, failing which an interest at the rate of 8% per annum will be payable to the complainant till the whole payment of the amount from today. Declared in the Open Forum on this the 19th day of December, 2009. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complaiannt: PW1 : Madhu. R Exhibits marked on the side of the complainant: A1 series : Photocopy of the Demand Drafts issued to the opposite parties by the complainant as the payment of loan instalment. A2 : Photocopy of Advocate Notice sent by the complainant to the opposite parties. A3 : Postal receipt of Ext.A2. A4 : Acknowledgment card. A5 : Acknowledgement card. A6 : Acknowledgement card. A7 : Photocopy of the letter dated 5.6.2008 issued by the 3rd opposite party to the complainant. Witness examined on the side of the complainant: Nil. Exhibits marked on the side of the complainant: Nil. (By Order) Senior Superintendent. Copy to:- (1) R. Madhu, Proprietor, Sandhya Flames, Aranmula.P.O., Pathanamthitta Dist. (2) Branch Manager, M/s. ICICI Bank Ltd., 2nd Floor, Skyline, Citadel Complex, Kanjikuzhi, Kottayam – 686 004. (3) Branch Manager, M/s. ICICI Bank Ltd., Aban Towers, Pathanamthitta Branch. (4) Manager, Kodak Mahindra Bank Ltd., Vinay Bhavia Complex, 6th Floor, 169 A CST Road, Kaline, Santhacruze East, Mumbai – 400098. (5) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
