Date of Filing:15.12.2008<br /> Date of Order:14.05.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 14TH DAY OF MAY 2009<br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> COMPLAINT NO: 2704 OF 2008<br /> G. Shanthalakshmi<br /> W/o. Gopalakrishna<br /> R/at “Kaveri Nilaya”<br /> Ambedkar R.M.B. Road<br /> Gulpet, Kolar 563 101 Complainant<br /> <br /> V/S<br /> <br /> M/s. Kotak Mahindra Bank Ltd.<br /> M.G. Road, Bangalore 560 001<br /> Represented by its Manager Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that complainant had availed vehicle loan of Rs. 6,89,000/- from the opposite party for purchase of commercial vehicle viz., Ashok Leyland Comet CF 1612 bearing Regn No. K 07 A 4509. The complainant was required to repay the loan amount financed by the opposite party in equated monthly installments for 36 months commencing from 01.05.2004 to 01.03.2007. The monthly installments included the interest, finance charges and all other charges. The complainant gave 36 postdated cheques to the opposite party towards repayment of monthly installments in favour of the opposite party. The opposite party has encashed all the cheques regularly and there is no default. The opposite party has failed to release the vehicle from hypothecation and also not handed over the original documents. Instead the opposite party has issued a notice dated 25.10.2007 claiming a sum of Rs. 37,289.85 from the complainant towards the alleged overdue interest. The opposite party has put forth illegal unreasonable claim for overdue interest, even though the complainant is at no fault. Complainant got issued legal notice on 10.03.2008 calling upon the opposite party to release the vehicle from the hypothecation and also to issue No Due Certificate and release the original documents to her custody. Hence, the complaint seeking direction to the opposite party to release the vehicle from hypothecation, issue No Due Certificate and hand over original documents and compensation.<br /> 2. Notice issued to opposite party through RPAD. The opposite party appeared through advocate and filed defence version admitting that opposite party has sanctioned vehicle loan of Rs. 6,89,000/- to the complainant on 05.04.2004. It is submitted that though the complainant had paid all the monthly installments as per the repayment schedule of the loan agreement, there was sufficient delay in receipt of the said respective cheques amount as and when they were presented for encashment as the said post dated cheques issued by the complainant were belonging to Kolar Bank, therefore, the complainant is very much liable to pay the said penal charges levied by the opposite party. The opposite party is ready to issue No Due Certificate in favour of the complainant subject to the payment of penal charges, which is raised by the opposite party as per the foreclosure statement of account dated 07.01.2009. Hence, prayed to dismiss the complaint. <br /> 3. Affidavit evidences are filed.<br /> 4. Arguments are heard.<br /> 5. The points for consideration are:<br /> a. Whether there is deficiency of service on the part of opposite party?<br /> b. Whether the opposite party can be directed to release vehicle from hypothecation?<br /> c. Whether the opposite party can be directed to hand over No Due Certificate and original documents to the complainant?<br /> 6. It is admitted case of the parties that complainant Smt. Shantha Lakshmi had availed vehicle loan of Rs. 6,89,000/- from the opposite party for purchase of vehicle. The complainant was required to repay the loan amount on a monthly equated installment for 36 months. The EMI included interest, finance charges and other charges. Complainant had given 36 post dated cheques to the opposite party. There was absolutely no default on the part of complainant in making payment. The opposite party has clearly admitted in the version that complainant had paid all the monthly installments as per the repayment schedule. The opposite party has also admitted that monthly installments were included interest and finance charges. When this is the case where is the question of complainant paying any other extra amount as demanded by the opposite party. It is the case of the opposite party that it is ready to issue no due certificate and release hypothecation and hand over original documents to the complainant subject to payment of penal charges. This demand of the opposite party is absolutely illegal and without any authority or agreement. The question of payment of penal charges does not arise at all in this case. None of the cheques of the complainant were bounced. The complainant had submitted 36 post dated cheques to the opposite party. The complainant is not responsible for delay in respect of the cheque amount. The opposite party could have presented the cheque to the banker well in advance and got the amount from the account of the complainant. The complainant cannot be held responsible in any manner for delay in respect of the amount of the respective cheques because all 36 cheques were with the custody of opposite party. Therefore, it was the responsibility and obligation of the opposite party to get the cheque encashed as per the payment schedule. Therefore, the so called penal charges claimed by the opposite party is without authorization and same is illegal. The opposite party in the defence version has not made clear for what purpose penal charge for delayed payment is claimed. No specifications or details of penal charges had been shown in the defence version. The opposite party is not specific or clear as to why and for what reason the complainant is required to pay penal charges. Opposite party admittedly has not produced loan agreement before the forum to show that complainant is liable to pay penal charges. Therefore, in the absence of any agreement between the parties the question of paying penal charges does not arise. The demand put up by the opposite party to pay the penal charges is wholly illegal and without authority of law. Since the complainant has paid all the monthly installments as per the payment schedule of loan agreement it is the duty and obligation of the opposite party to issue No Due Certificate and release the vehicle from hypothecation and return the original documents to the complainant. On the facts and circumstances of the case the opposite party has committed deficiency in service. Therefore, the complainant is entitled to the relief from the hands of this fora. Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumer. In this case the opposite party having committed deficiency of service must be directed to comply the request of the complainant immediately. The complainant has sought compensation of Rs. 2,00,000/- for mental agony, hardship etc. But, the complainant has not produced any evidence or facts as to how and in what manner she has suffered hardship, mental agony and inconvenience so as to seek compensation of Rs. 2,00,000/- from the opposite party. Therefore, without proper evidence on this aspect it is not possible to grant compensation for mental agony. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The Complaint is allowed. The opposite party is directed to release the vehicle bearing registration No. K 07 A 4509 from hypothecation and issue no due certificate in respect of the said vehicle loan in favour of complainant. The opposite party is also directed to hand over all the original documents pertaining to the said vehicle to the complainant immediately.<br /> 8. The opposite party is also directed to pay Rs 3,000/- as costs of the present proceedings to the complainant.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 14TH DAY OF MAY 2009. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> <br /> MEMBER MEMBER<br />