Complaint filed on: 14-03-2011

                                                      Disposed on: 24-06-2011

BEFORE THE BANGALORE IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

                        C.C.No.510/2011     

DATED THIS THE 24^th JUNE 2011

PRESENT

SRI.D.KRISHNAPPA., PRESIDENT

SRI.GANGANARASIAH, MEMBER

SMT.ANITHA SHIVAKUMAR, MEMBER

Complainant: -             

                                                Sri.Shivanna

                                                S/o. Late H.Kenchanna,

                                                Aged about 45 years,

                                                Residing at No.5/64,

                                                2^nd Main, 1^st Cross,

                                                Mysore Road,

                                                Byatarayanapura,

                                                Bengaluru-560 026                                                                                    

V/s

Opposite party: -

                                                M/s. Syndicate Bank,

                                                Contonment Branch,

                                                St.John’s Road,

                                                Bengaluru-560 002

                                                Represented by its Chief Branch

                                                Manager Sri.A.M.Prabhakar Rao

O  R D E R

SRI. D.KRISHNAPPA., PRESIDENT.,

          Brief facts of the complaint filed by the complainant against the OP are, that he is an employee of BMTC working as a conductor is having salary income. That TVS Motor Cycles Company offered bulk supply of motor bikes to the employees of BMTC and he purchased a TVS Motor bike and obtained a loan of Rs.46,064/- from OP which was repayable in 60 installments of Rs.1,110=00 per month with interest at 14% per annum. The first installment commenced from October-2002 and it was to end during Sept.2007. That employer of BMTC deducted 60 installments from out of his salary and remitted to OP without any default. That the salary slips issued by his employer disclose that of all the 60 installments payable to OP are paid. Then he approached the OP to issue No Due Certificate as he had sold his bike, because of his financial problems. But OP told him that he was still due Rs.29,500=00 towards loan amount and he shall atleast pay Rs.15,000=00 to clear entire loan. The Complainant stating that despite demand for issue of No Due Certificate, OP has failed to issue, therefore attributing deficiency in the service of the OP has prayed for a direction to the OP to issue No Due Certificate.

          2. OP has filed version through his advocate, contending that the complaint is not maintainable, but admitted to had advanced loan of Rs.46,064=00 to the complainant for purchase of Motor Bike repayable in 60 installments as stated by the complainant. That he has no knowledge of the employer of the complainant deducting the installments from his salary every month. But stated that the employer has not properly remitted the installments to them. That the complainant was due Rs.32,373.12 as on 31-3-2011 and stated that when the complainant did not pay the remaining installments and when approached for issue of No Due Certificate, they had given concession to the complainant and told the complainant to pay Rs.15,000=00 under one time settlement, but the complainant failed to pay that amount also. The OP referring to the similar case filed by another employee of BMTC in complaint No.1885/2010 has stated that another forum considering that the employer of the complainant had not forwarded the deducted installments, directed BMTC to pay outstanding amount to this OP and denying any deficiency in his service has prayed for dismissal of the complaint.

          3. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint has produced copies of salary slips issued by his employer and copy of a legal notice. OP has produced extract of loan account of the complainant and copy of the order passed by the 1^st Additional District Consumer Disputes Redressal Forum, Bangalore in Complaint No.1885/2010. We have hard the counsel for both parties and perused the records.

            4. On the above contentions following points for determination arise.

1)     Whether the complainant proves that OP has caused deficiency in his service by not issuing No Due Certificate?

2)     To what reliefs, the complainant is entitled to?

5. Our findings are as under:

Point no.1: In the Negative

Point no.2: See the final Order

REASONS

 6. Answer on Point No.1:  On consideration of the contention of the complainant and defence of the OP, we find no dispute between them with regard to this complainant availing loan of Rs.46,064/- from OP which was repayable in 60 equal monthly installments. It is further found that the employer of the complainant namely Bengaluru Metropolitan Transport Corporation (BMTC) had under taken to deduct monthly installments of Rs.1,100/- from every month salary of the complainant and pay it to the OP towards dischargel of the complainant’s loan. The complainant in support of his contention that he has paid all the installments regularly through deduction of the installments from his salary has produced pay slips issued by his employer commencing from Oct-2002 to till Sept.2007 which no doubt disclose that all the 60 installments are deducted from salary of the complainant except one month in between. But the OP in his version has contended that it is not within his knowledge about the employer of the complainant deducting installments from his salary and further stated that the complainant’s employer has not properly remitted the installments to them and thereby the complainant was due Rs.32,373.12 as on 31-3-2011. The learned counsel for the OP has filed interrogatories and out of them, interrogatory no.5 is material to the dispute in which the counsel for the OP has stated that the complainant knowing fully well that his employer has not properly remitted the monthly installments he has purposefully not made his employer as party to the complaint, in order to rescue him. The counsel for the complainant has given reply to this question which is material is reproduced as under:

“I do no know that my employer has not properly remitted the monthly installments, it is not come to my knowledge to deny that intentionally not made his employer as party”.

          7. Thus, it is clear from this statement of the complainant himself that he is not aware whether deduction made by his employer from out of his salary was sent to the OP or not. Even till the date of arguments of this case the complainant has not made any attempt to ascertain whether his employer who had deducted towards installments has sent to the OP bank or not. Thus under these circumstances, burden is heavy on the complainant to prove that deductions made by his employer from out of this salary were sent to the OP bank and that the OP received that amount. In the absence of such proof the contention of the complainant that he has repaid all the amount due cannot be heard and believed. Hence, we find no merit in the allegations of the complainant that the OP after receipt of all the installments has failed to issue No Due Certificate. Under these facts and circumstances of the case, the complaint lacks merit and therefore is liable to be dismissed as the OP is not bound to issue No Due Certificate in the absence of full payment.  

8. The OP in the version has admitted that one time settlement was offered with concession to the complainant asking him to pay Rs.15,000=00 towards total dischargel of his liability, but the complainant did not make use that offer. Even in the interrogatories also the counsel for the OP has raised that question and that the complainant has admitted that offer made by the OP. This was a gesture made by the OP and the complainant in our view can even now think of availing such offer. The OP has produced certified copy of the order passed by the 1^st Additional District Consumer Disputes Redressal Forum, Bengaluru in similar matter in CC no.18185/2010.   The 1^st Additional District Consumer Disputes Redressal Forum Bengaluru finding that the employer of the complainant in that case had not sent deductions made from the salary of another employee to the bank. The employer of that complainant who was a party in the complaint was directed to pay Rs.9,000=00 to the bank. Similar is the situation here wherein the employer of the complainant found to have not forward the deducted amount to the bank, therefore the complainant ought to have made the employer as the party in this complaint, but has not done so. Therefore, considering the fact that the complainant failed to prove the deficiency in the service of the OP, we leave it to the wisdom of the complainant to approach the OP to see that dispute is settled by considering the offer of the OP made earlier With this we answer point no.1 in the negative and hold that the complaint is liable to be dismissed and pass the following order:

ORDER

Complaint is dismissed. No cost.  

Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 24^th June 2011.

Member                         Member                      President