Tamil Nadu

South Chennai

170/2007

M.Nagamuthu - Complainant(s)

Versus

M/s. ICICI Bank Pvt Ltd - Opp.Party(s)

R.Perumal Swamy

04 Aug 2017

ORDER

                                                                        Date of Filing :   11.04.2007

                                                                        Date of Order :   04.08.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.170/2007

FRIDAY THIS  4^TH   DAY OF AUGUST 2017

 

M. Nagamuthu,

S/o. M.V.Muthusamy,

Noo.7, 1^st Street,

Officers Colony Extension,

Chennai 600 050.                                        .. Complainant

                                        ..Vs..

 

The Branch Manager,

M/s. ICICI Bank Limited,

Branch Office,

No.46, Gandhi Mandapam Road,

Kotturpuram, Chennai 600 085.              .. Opposite party.

 

 

Counsel for Complainant         :    M/s. R. Preumal Swamy & others

Counsel for opposite party       :    M/s. S.B.S.Raman & Associates  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to recover the two wheeler Hero Honda Splender bearing registration Nol.TN-02 P. 0204 along with cash of Rs.15,000/- and also to pay a sum of Rs.25,000/- as compensation for mental agony and to pay cost of the compliant.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that he purchased a Hero Honda Splendor for a sum of Rs.44,977/-.  The complainant further submit that he paid a sum of Rs.6,480/- + Rs.1000/- totaling Rs.7480/- which includes 1^st installment amount of Rs.1700/- to the  opposite party and for the remaining amount the complainant entered into H.P. agreement with the opposite party for the period of 30 months and the EMI amount was Rs.1700/- p.m.   Further the complainant submit that  the opposite party sent collection agents to the complainant’s house and thereby collected a sum of Rs.2,000/- per month for the period of 20 months instead of Rs.1700/- p.m. and thereby the complainant paid a sum of Rs.40,000/-.  The complainant also state that in all he paid a sum of Rs.59,380/- to the opposite party.  Only at the time of two months due to clear the above said agreement loan, on 9.10.2006 at about 8.30 a.m. the complainant’s father  took the said Hero Honda Splendor  bearing Registration No.TN-02 P 0204 from the verandah inside the house and kept the vehicle in front of the house and at that time the complainant’s father kept cash of Rs.15,000/- in a black colour bag and the vehicle was found missing.  Hence the complainant lodged a complaint before the T3 Korattur Police Station.   On the enquiry the police came to know that the opposite party sent their hooligans and stolen the above said complainant’s vehicle.   Accordingly the complainant issued legal notice calling upon the opposite party to return the vehicle with amount stolen along with damages.     As such the act of the opposite party clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party denies each and every allegations except those that are specifically admitted herein.  At the outset, the complainant has made this opposite party wrongly as a party.    The opposite party submit that the complainant applied for  vehicle loan which was sanctioned for a sum of Rs.40,000/- by the opposite party for purchasing a new Hero Honda Splendor Motorcycle.    The entire loan amount sanctioned was disbursed on 10.10.2002 in full.  As per the terms of the agreement the complainant was liable to repay the loan with agreed interest in 30 equated monthly installments of Rs.1700/- each on  commencing from 7.10.2002 with the last loan installment being repayable on 7.3.2005.   The invoice cost of the vehicle being Rs.44,977/- the complainant has paid Rs.4,977/- to the dealer which was treated as margin money for the loan, Rs.800/- being processing fee to the opposite party and Rs.1700/- being the first EMI due in advance from him to the opposite party.   The opposite party further submit that the complainant was a defaulter in making payment of the monthly EMI’s due under the loan agreement with the bank. A number of cheques issued by the complainant were bounced for want of founds when presented for payment.   Hence there is no deficiency in service on the part of the opposite party and therefore this complaint is liable to be dismissed.

3.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A5 marked.  Proof affidavit of opposite party  filed and Ex.B1 to Ex.B8 marked on the side of the opposite party.  

4.   The point for the consideration is:  

 

1. Whether the complainant is entitled to recover the two wheeler Hero Honda Splender bearing registration Nol.TN-02 P. 0204 along with cash of Rs.15,000/- as prayed for ?
2. Whether the complainant is entitled to a sum of Rs.25,000/- towards mental agony with cost as prayed for ?

 

5.   POINTS 1 & 2:

        Both parties filed their respective written arguments.  Both parties not turned up to advance any oral arguments.   Both parties admitted the purchase of Hero Honda Splendour vehicle bearing registration No.TN-02 P.0204 on availing the loan of Rs.40,000/- from the opposite party  i.e. Ex.B1 and the total EMI of 30 installments  at the rate of Rs.1700/- each.  Equally both the parties admitted that there is an arrears of two EMI. The complainant pleaded and contended in the written argument that he purchased Hero Honda Splendour bearing registration No.TN-02 P.0204 for a sum of Rs.44,977/-.  He has paid an initial amount of Rs.6,480/- + Rs.1000/- totaling to Rs.7,480/- which includes 1^st installment amount of Rs.1700/- of the loan amount of Rs.40,000/-.  The opposite party without denying the payment of Rs.6480/- and Rs.1,000/- pleaded and contended that the complainant paid only Rs.4,977/- to the dealer which was treated as margin money for the loan and a sum of Rs.800/- towards processing fee to the opposite party.   But on a careful perusal of the records the complainant has not produced any document to prove the payment of Rs.7480/-.   Equally the opposite party has not produced any document  to prove the amount of  Rs.4977/- and Rs.800/-. Under these circumstances it is the bounden duty of th e opposite party to prove that he has not received any amount  Rs.4977 & 800/- = Rs.5777/- establishes that the opposite party received an excess amount of Rs.5777/-.  Further the complainant pleaded in the complaint and contended that he has paid the EMI regularly much less three EMI paid by way of cash in person.  In the mean time the opposite party sent collection agents to the complainant’s house and  collected a sum of Rs.2,000/- per month for the period of 20 months instead of 1700 p.m. thereby the opposite party collected a total sum of Rs.59,380/- establishes the unfair trade practice.  The opposite party pleaded in the written version and contended that the complainant is a chronic defaulter in payment; number of cheques issued by the complainant were bounced for want of funds.    But  the opposite party miserably  failed to prove any document before this forum.  On the other hand the opposite party has not denied that the agent were sent for collecting the EMI.  The opposite party has not denied an amount of Rs.2,000/- per month was collected by collection agents  proves unfair trade practice.

6.     Further the complainant pleaded and contended that on 9.10.2006 at about 8.30 a.m when the vehicle was kept in the varanda by his father with a sum of Rs.15,000/- in a Black colour bag, the vehicle was found missing.  Immediately the complainant lodged a complaint before the Korattur Police station Ex.A2.  After due investigation found that the vehicle was seized by the opposite party through their hooligans.   The complainant further contended that the opposite party has not issued any notice of seizure and sold the vehicle for petty amount.   Hence the complainant was constrained to issue legal notice Ex.A4 calling upon the opposite party to return the vehicle with the amount stolen, along with damages.  The contention of the opposite party is that they have issued repeated notices for due seizure and auction sale due to default in payment of EMI;  but none of the notice along with the acknowledgement filed before this forum; the alleged acknowledgment Ex.A5 shall not prove neither seizure nor auction sale.   Equally Ex.B5 and Ex.B6 shall not establish the true copy of notices and the acknowledgment.  On a careful perusal of Ex.B5 it is apparently  clear that a sum of Rs.10,123/- is claimed towards termination amount proves that the opposite party without giving any information terminated the account.   Further it is apparently clear that the complainant is in due of only two EMI of Rs.1700/- each,  for that the opposite party seized the vehicle worth of Rs.44,977/-.    The opposite party has not explained the necessity of  seizure of such valuable vehicle for a small amount of only two Emi which to proves the deficiency of service and unfair trade practice.   The opposite party even  for the auction sale has not followed minimum   procedure and has not taken any action to credit the excess amount into the complainant’s account.  Considering the facts and circumstances of the case this forum is of the considered view that the opposite party is directed to handover the Hero Honda Splendour vehicle bearing registration No.TN-02 P.0204 with good condition to the complainant or to pay the cost price of the vehicle i.e. Rs.44,977/- after receiving the two EMI of Rs.1700/- each with compensation of Rs.10,000/- towards mental agony and also to pay cost of Rs.3,000/- and the points are answered accordingly.        

        In the result the complaint is allowed part.   The opposite party is directed to handover the Hero Honda Splendour vehicle bearing registration No.TN-02 P.0204 with good condition to the complainant within one month from the date of this order (i.e. 4.8.2017) or to pay the cost price of the vehicle i.e. Rs.44,977/- (Rupees Forty four thousand nine hundred and seventy seven only)  after receiving the two EMI of Rs.1700/- each with compensation of Rs.10,000/- (Rupees ten thousand only) towards mental agony and also to pay cost of Rs.3,000/- (Rupees three thousand only) to the complainant.

        The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  4^th   day  of  August 2017.  

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 6.10.2002  - Copy of statement of account.

Ex.A2- 9.10.2006  - Copy of FIR.

Ex.A3- 18.1.2007  - Copy of letter sent by the opposite party.

Ex.A4- 1.4.2007    - Copy of legal notice

Ex.A5- 2.4.2007    - Copy of Ack. Card.

 

Opposite parties’ side document: -  

Ex.B1- 5.10.2002 - Copy of loan application.

Ex.B2- 7.10.2002 - Copy of loan cum hypothecation agreement.

Ex.B3- 7.10.2002 - Copy of irrevocable power of attorney.

Ex.B4- 7.10.2002 - Copy of demand pre-Note.

Ex.B5- 14.10.2006-Copy of pre sale notice.

Ex.B6- 22.2.2007 - Copy of postal department intimation.

Ex.B7- 19.12.2006- Copy of Statement of account.

Ex.B8-       -      - Copy of Sale approval. 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.