By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get compensation for the deficiency of service that they have not returned the blank signed cheque and Loan Clearance Certificate even after payment of the entire loan dues.
2. Brief of the complaint:- The complainant is the RC owner of the vehicle No. KL 12 G 6627 Chevrolet Beat Diesel car. The complainant had availed a loan for the vehicle to the tune of Rs.4,00,000/- and the total amount to be repaid was fixed as Rs.5,36,520/- and the repayment was fixed for 47 equal monthly instalments of Rs.11,620/- each. The last date of instalment was on 25.03.2016. While disbursing the loan amount the opposite party has deducted Rs.11,620/- as one month instalment in advance and also deducted an amount of Rs.6,500/- as processing charge for which no receipts were issued by the 1st opposite party and also obtained 10 blank signed cheque leaves of the complainant and instructed the complainant to deposit the monthly instalment amount in his bank account stating that they will collect the amount by presenting the cheque in the bank. After two or three months the 1st opposite party's agent approached the complainant and asked the complainant to stop the depositing of amount in the bank and to give the instalment amount in liquid cash to their agent and assured that the collection agents will come and collect the instalment regularly. But opposite party No.1 failed to send collection agents as promised and repayment could not be effected as per chart. Even though the instalment were defaulted due to the latches of the opposite party No.1. Opposite parties demanded defaulted interest and late fee for the instalment amount.
3. Even though the complainant had paid the entire loan amount within the repayment period opposite parties had not given loan clearance certificate, instead they have adjusted the instalment amount paid by the complainant to the head of interest and late fee etc... without the knowledge and permission of the complainant. The said facts were came to the knowledge of the complainant when he received the statement of account issued by the 1st opposite party dated 03.06.2016. Now the opposite parties threatened the complainant that they will seize the vehicle. Hence filed this complaint.
4. On receipt of the notice, opposite parties appeared and version filed. In the version opposite party No.1 stated that they admits the fact that the complainant has availed a vehicle loan on hypothecation of the vehicle No. KL.12.G.6627 car. The loan amount was for Rs.4,00,000/-. The agreement value of the loan is Rs.5,36,520/- and the number of instalments were fixed as 47 of which the first instalment was Rs.2,000/- and the remaining were Rs.11,620/- each. The terms and conditions of the transaction were reduced in to writing by an agreement dated 31.5.2012,with No.2063368 executed in between the complainant and the first opposite party and the liability of the complainant towards the opposite party is contractual. As stipulated by the contract, any disputes arising in between the complainant and the opposite party with regard to the subject matter is to be referred for arbitration and therefore the jurisdiction of this Hon'ble Forum is ousted and hence this Hon'ble Forum is unable to entertain the matter. This opposite party submits that the complainant is plying the vehicle in question as taxi by using the same for commercial purpose and hence the complainant is not a consumer as stipulated by the enactment and for this reason also among other reasons this Honble Forum is lacking jurisdiction to entertain the matter. The averments in complaint to the effect that the first opposite party has deducted from the loan amount before releasing the loan amount, Rs.11,620/- and Rs.6,500/- respectively, towards first instalment of repayment and processing charge, etc, is wrong and denied. The averments in the complaint that the opposite party has obtained 10 blank signed cheque leaves of the complainant and instructed the complainant to deposit monthly instalments in his bank account by stating that the opposite party would collect the amount by presenting the cheque in the bank ,etc are travesty of truth and hence denied by this opposite party in seriatim. It is also totally wrong to say that the first opposite party's agent approached the complainant and asked him to stop the depositing of amount in the bank account and required liquid cash to be handed over to the agent of the opposite party with assurance that the agents of the opposite party would be punctually collecting the amount from the complainant, the opposite party had not sent collection agents as promised and due to this repayments could not be made properly ,the default in repayment is due to the latches on the part of the first opposite party and their collection agent, the first opposite party demanded default interest and late fee, the first opposite party had adjusted the instalment amount paid by the complainant towards default interest and late fee etc.. without the knowledge and permission of the complainant, the said fact came in to the knowledge of the complainant when he received the statement of account, the complainant had paid the entire loan amount even then the opposite party has not prepared the loan clearance certificate, the first opposite party demanded Rs.54,100/- more, the first opposite party's men threatened the complainant of seizing the vehicle to recover the due and further threatened to initiate criminal proceeding by using the cheque leaves, etc are utter falsehood, untrustworthy and concocted stories wilfully molded by the complainant with malafide intention to escape from the liability of repayment of the balance amount due to the first opposite party. The intimations regarding outstanding due in the loan account were properly intimated to the complainant several times by the opposite party without delay and hence the allegations raised by the complainant otherwise is totally wrong. The complainant with malafide intention to escape from the due balance amount arising false allegations. The intimation regarding the outstanding due in the loan account were properly intimated to the complainant several times by this opposite party without delay. This opposite party submits that the complainant is liable to pay additional finance charges to the first opposite party for the delayed repayments and cheque return charges for dishonor of cheques, etc, as agreed upon by him vide agreement/contract dated 31.5.2012. The first opposite party submits that an amount of Rs.39,013/- is still pending due from the complainant towards additional finance charges in addition to Rs.2,000/- towards cheque return charges. Opposite party No.1 stated that as per the Account Statement an amount of Rs.54,100/- is still due and payable by the complainant to this opposite party. Opposite party No.1 further stated that there is no deficiency of service from the part of them.
5. Complainant filed affidavit and examined as PW1 and Ext.A1 and A2 documents were marked. Ext.A1 is the Account Statement. Ext.A2 is the copy of Registration Certificate. Opposite party adduced evidence as OPW1. Ext.B1 is confronted through PW1. Ext.B2 and B3 documents were marked. Ext.B1 is the Loan Agreement executed between the complainant and opposite party No.1. Ext.B2 is the Account Statement and Ext.B3 is the copy Power of Attorney.
6. On considering the complaint, version and evidences the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
7. Point No.1:- The complainant deposed that he had availed loan from the opposite party No.1 and 47 monthly equal installments of Rs.11,620/- were fixed for the repayment. One monthly installment in advance were collected by the opposite party No.1 at the time of disbursing the loan and another Rs.6,500/- was charged as processing charges without giving the receipt. Admittedly 4 installments were paid by the complainant within time but the entire installment amounts were paid within the loan repayment period. Some installments were defaulted due to the latches of the opposite party No.1's agent, he had not collected the installment in time. Now the opposite party No.1 is demanding for further amount of Rs.54,100/- as additional interest and late fee and they were not issued Loan Clearance Certificate even after the receipt of the entire loan amount.
8. Opposite party contested the matter stating that Ext.B1 Agreement was executed between the complainant and opposite party. As per Ext.A1 they are entitled to collect additional finance charges, late fee and processing charges and the liability of the 1st opposite party and complainant were is contractual. Complainant is plying the vehicle in question as taxi for commercial purpose. Hence he is not a consumer. Opposite party No.1 never assured the complainant that they will send collection agents. The complainant defaulted repayments only due to neglect and latches on the part of him alone. They were properly intimated about the outstanding due to the complainant and what they acted is in accordance with the law and as per the agreement they are entitled to get defaulted interest and late fee.
9. On going through the evidences and records we are of the opinion that admittedly complainant defaulted installments if there is any latches by the opposite party's agent the complainant can pay installments amount directly to the opposite party or he can very well deposit it in his loan account. Here the opposite party No.1 had not given the Loan Clearance Certificate and demanding Rs.54,100/- as balance due amount. There are few more allegations in the complaint, since the complainant is a defaulter there is no needs to consider other allegations. If that be so complainant paid the entire installments within the loan period he is entitled to get clearance certificate, also opposite party is at liberty to charge interest and late fee as per the Agreement (Ext.B1). But the complainant paid the entire loan amount within the period hence he is entitled to get Loan Clearance Certificate. The Points are found accordingly.
In the result, the complaint is partly allowed and the opposite party No.1 is directed to give Loan Clearance Certificate to the complainant on receipt of an amount of Rs.20,000/- (Rupees Twenty Thousand) towards the total dues on a humanitarian consideration from the complainant. Both parties are directed to comply the order within 45 days from the date of receipt of this Order. Otherwise the complainant is not entitled to get benefit of this Order. No Order as to cost and compensation.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 17th day of January 2017.
Date of Filing: 10.06.2016.
PRESIDENT :Sd/-
MEMBER :Sd/- MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Muhammed Shafi. Complainant.
Witness for the Opposite Parties:-
OPW1. Adharsh. Assistant Manager,Legal (Mahindra and Mahindra, Kozhikode).
Exhibits for the complainant:
A1. Account Statement.
A2. Copy of Registration Certificate.
Exhibits for the opposite parties:-
B1. Loan Agreement. Dt:31.05.2012.
B2. Statement of Account.
B3. Copy of Power of Attorney.
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PRESIDENT, CDRF, WAYANAD.
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