BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 8th of November 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.240/2010
(Admitted on 09.09.2010)
Mr.Suhas M,
So. Subramanya Hebbar,
Aged about 31 years,
Residing at Shrinilaya,
Shanthigodu Post,
Puttur Taluk 574 201. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Ravindranath P.S.)
VERSUS
Ms.Bajaj Auto Finance Limited,
Ground Floor,
Sherton Square,
Opp. Cascia Church,
Morgangate, Jeppu,
Mangalore 575 002.
Rep. by its Authorized Signatory. ……. OPPOSITE PARTY
(Opposite Party: Exparte).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he had purchased motor cycle bearing registration No.KA-21-J-4547 on 30.04.2006 on hire purchase agreement with the Opposite Party for his personal use. The Opposite Party has obtained signed blank cheques from the Complainant of his S.B. account No.2209 with Narimogaru Vyavasaya Service Co-operative Bank, Puttur towards the repayment of the entire loan amount due from the Complainant. The Opposite Party assured to present the aforesaid cheque after filling for a sum of Rs.1,045/- each every month. It is stated that, the Complainant’s banker honoured all the cheques as and when presented for payment. The Complainant submits that, the last cheque towards full and final satisfaction of the loan amount was honoured on 19.01.2009. After full satisfaction of the amounts due to the Opposite Party, the Opposite Party failed to return the original documents and duplicate key of the vehicle till this date. It is stated that, the Opposite Party instead of handing over the above documents and key, issued a false letter on 17.06.2009 claiming further sum of Rs.4,440/- and the same has been replied by the Complainant on 25.07.2009.
It is stated that, the Opposite Party verified his pass book with his banker, the Opposite Party presented the cheque for filling it for a sum of Rs.1,110/- as against a sum of Rs.1,045/- has mutually agreed between them. The Complainant demanded the statement of loan account and copy of the loan documents so as to verify the same but the Opposite Party failed to furnish the loan documents till this day. The Complainant had written several letters to the Opposite Party to cancel the hypothecation entry in the Registration Certificate and delivered duplicate key but the Opposite Party failed to do the same which amounts to deficiency and hence, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to handover the original registration documents of the vehicle duly deleting the hypothecation entry in it along with duplicate key of the motor cycle or to repay the entire loan amount to the Complainant and take back the vehicle in the event the Opposite Party fails to produce valid loan documents and also claimed Rs.30,000/- towards compensation for agony and suffering along with interest at 12% p.a. from the date of purchase till payment and also claimed cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party. The acknowledgement placed before the FORA marked as court document No.1.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Suhas M (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C10 as listed in the annexure. Opposite Party neither appeared nor filed counter affidavit.
We have considered the materials that was placed before this Forum by the Complainant and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the Complainant sworn to the fact that, he had purchased a motor cycle bearing registration No.KA-21-J-4547 on 30.04.2006 on hire purchase agreement with the Opposite Party for his personal use. At the time of entering into a hire purchase agreement, the Opposite Party has obtained signed blank cheques from the Complainant of his S.B. account No.2209 with Narimogaru Vyavasaya Service Co-operative Bank, Puttur towards the repayment of the entire loan amount due from the Complainant. The Complainant’s banker honoured all the cheques as and when presented for payment. The last cheque towards full and final satisfaction of the loan amount was honoured on 19th January 2009. After full satisfaction of the loan amounts, the Opposite Party failed to return the original document and duplicate key and also not cancelled the hypothecation entry in the R.C and produced Ex C1 to C10 in support of his case.
The Opposite Party though served with the version notice not appeared nor contested the case till this date. The entire oral as well as documentary evidence placed on record not contradicted nor controverted by the Opposite Party in this case.
However, on scrutiny of the documents available on the file of this Forum, we find that, the Ex C1 i.e., the letter from the Opposite Party to the Complainant reveals that, the Complainant availed a loan of Rs.30,400/- and for the repayment of the said loan the Opposite Party has obtained the signed blank cheques from the Complainant of his S.B. account of Narimogaru Vyavasaya Service Co-operative Bank, Puttur. The Opposite Party and the Complainant agreed to present the aforesaid cheques for a sum of Rs.1,045/- every month. Further the Ex C2 i.e., the certificate issued by the Narimogaru Vyavasaya Service Co-operative Bank Limited, Puttur dated 23.07.2009 issued by the Chief Executive reveals that, no cheques pertaining to the Complainant’s S.B. account bearing No.2209 were returned with insufficient balance. The above certificate shows that no cheque issued by the Complainant towards the above said loan is returned insufficient balance. The Ex C3 i.e., the registered letter dated 25.07.2009 reveals that, the Opposite Party despite of taking the amount under the cheques issued by the Complainant not returned the duplicate key or original documents by cancelling the hypothecation and called upon the Opposite Party to do the same. The Ex C6 i.e., the letter issued by the Opposite Party dated 25.01.2010, wherein, the Opposite Party stated that there are four installments pending by the Complainant in respect of the cheques bearing No.6009 – refer drawer, 6015 – bank confirmation, 6005 – bank confirmation and 6008 – refer drawer respectively. These cheques were returned for the reasons mentioned as above and called upon the Complainant to pay Rs.4,180 + 722 (insurance premium) along with interest. The Ex C7 is the letter issued by the Narimogaru Vyavasaya Service Co-operative Bank Limited dated 04.02.2010 shows that the cheque No.6009, 6005, 6008 honoured/paid on 19.12.2007, 20.09.2007 and 12.11.2007 respectively and cheque No.6015 not received for collection by the Complainant banker. The above document made very clear that, whatever the cheques presented by the Opposite Party was honoured and no cheques were returned to the Opposite Party for insufficient fund or any other reason. When that being the case, the Opposite Party cannot issue a false notice without therebeing any cogent/material evidence. The above documents as well as the evidence placed on record before this FORA is not rebutted by the Opposite Party. The unrebutted evidence requires no further proof. If at all there is a due from the Complainant, the Opposite Party should have produced some material in order to support their claim. Nothing has been placed on record. On the contrary, the Complainant proved before this FORA that there is no due whatsoever in respect of the above loan availed by him with the Opposite Party.
It appears on record that, the cheques issued by the Complainant were not returned as dishonoured/insufficient fund. Hence, we can safely conclude that there is no due from the Complainant. Therefore, we hold that, the Opposite Party is hereby directed to handover the original registration documents of the vehicle deleting the hypothecation entry in it along with duplicate key of the motor cycle. We further direct the Opposite Party to pay Rs.5,000/- for the harassment and the inconvenience caused to the Complainant till this date. Rs.1,000/- awarded as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party i.e., M/s. Bajaj Auto Finance Limited, represented by its Authorized Signatory is hereby directed to handover the original registration documents of the vehicle deleting the hypothecation entry in it along with duplicate key of the motor cycle and also pay Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 8th day of November 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Suhas M – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 17.06.2009: Letter from the Opposite Party.
Ex C2 – 23.07.2009: Certificate from the Complainant’s banker.
Ex C3 – 25.07.2009: Reply from the Complainant.
Ex C4 – 23.11.2009: Notice from Opposite Party’s lawyer.
Ex C5 – 11.12.2009: Reply to the Opposite Party’s lawyer along with postal receipt.
Ex C6 – 25.01.2010: Letter from the Opposite Party.
Ex C7 – 04.02.2010: Letter from the Complainant’s banker.
Ex C8 – 19.04.2010: Complainant’s letter to the Opposite Party.
Ex C9 – 28.07.2010: Office copy of the lawyer’s notice.
Ex C10 - : Acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW1 – Nil.
Documents produced on behalf of the Opposite Party:
Dated:08.11.2010 PRESIDENT
