BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2010
Filed on : 10/07/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No. 361/2009
Between
1. Smt. Annie Lukose, : Complainants
W/o. Late Jacob Lukose, (By Adv. George Cherian
Thabore House, Karippaparambil, Karippa-
Srinagar Lane, Paruthipara, parambil Associates, HB-48
Thiruvananthapuram. Panampilly Nagar, Kochi-
682 036)
2. Joe Jacob,
S/o. Late Jacob Lukose,
Thabore House,
Srinagar Lane, Paruthipara,
Thiruvananthapuram
3. Jim George Lukose
S/o. Late Jacob Lukose,
-do-
4. Ann Mariam Jacob
D/o. Late Jacob Lukose,
-do-
Rep. by mother and natural
Guardian Annie Lukose.
And
1. M/s. ICICI Bank Ltd., : Opposite parties
3rd Floor, Emgee Square, (By Adv. Lal K. Joseph,
M.G. Road, Kochi, M/s. Sheriff Associates,
Rep. by its Manager. 41/318-C, Kolliyil Buildings,
Nea Mullassery Canal, Chittoor road, Kochi-682 011.)
2. M/s. Kotak Mahindra Bank Ltd.,
36-38A, Nariman Bhavan, 227,
Nariman Point, Mumbai-400 021.
(2nd O.P. impleaded as per order
in I.A. No. 23/2010 dt. 15/01/2010)
O R D E R
A Rajesh, President.
The case of the complainants is as follows:
The complainants are the widow and children respectively of Sri. Jacob Lukose, who had expired on 24-07-2005. During the life time of Shri. Jacob Lukose he purchased a Tata Indica DLE 2002 model car with the financial assistance of the 1st opposite party. The amount financed by the 1st opposite party is Rs. 3,10,000/-. The complainants as on date have repaid the entire loan amount. However the first opposite party is claiming Rs. 80,000/- towards penal and late payment charges. On 04-07-2009 the Gundas of the 1st opposite party tresspassed into the house of the complainant and threatened to repossess the vehicle if the said amount has not been paid. The 1st opposite party has no right to repossess the vehicle otherwise than by due process of law. There is deficiency in service and negligence on the part of the opposite parties. Thus the complainants are before us seeking direction against the opposite parties not to sent the gundas and not to repossess the vehicle otherwise than by due process of law and to pay compensation and costs of the proceedings.
2. The version of the first opposite party.
The diseased Jacob Lukose had entered into a hire purchase agreement with the 1st opposite party and availed a loan of Rs. 3,10,000/- and purchased the vehicle bearing registration No. KL 7 AL 3201 on 31-12-2007. The loan account of the complainant was assigned by the 1st opposite party bank to the 2nd opposite party. This fact was informed to the complainants well in advance. The 1st opposite party has no claim against the complainants. The complainants have no cause of action against the first opposite party.
3. The defense of the 2nd opposite party.
The complainant availed a loan of Rs. 3,10,000/- after executing loan agreement dated 31-12-2002 in favour of the 1st opposite party. The tenure of the loan was for a period of 60 monthly instalments of Rs. 6,500/- each. On a verification of the account it can be seen that almost 42 cheques were bounced on first presentation. 13 cheques were dishonored due to insufficiency of funds in the account. So cheque bouncing charges were accumulated along with overdue charges. On 31-12-2007 the loan account of the complainant was assigned by the first opposite party to the 2nd opposite party as on date of assessment principle outstanding was Rs. 91,426.58 and foreclosure amount was Rs. 1,29,530.20 which includes cheque bounce charges and over due charges. As on date an amount of Rs. 2,20,747.84 is outstanding in the account including the interest. The 2nd opposite party never adopted coercive methods for recovery of dues as alleged by the complainants. The complainants are not entitled to get any of the reliefs as stated in the complaint.
4. The 1st complainant was examined as PW1 and Exts. A1 to A4 were marked on the side of the complainants. The witness for the first opposite party was examined as DW1 and Exts. B1 and B2 were marked on the side of the 1st opposite party. The witness for the 2nd opposite party was examined as DW2 and Exts. B3 and B4 were marked on their side. Heard the learned counsel for the parties.
5. The points that arose for consideration are as follows:
i. Whether the opposite parties are entitled to repossess the
vehicle otherwise than by due process of law?
ii. Compensation and costs of the proceedings.
6. Point No. i. During the proceedings in this Forum vide order dated 10-07-2009 in I.A. No. 337/2009 this Forum directed the 1st opposite party to refrain from repossessing the vehicle through means otherwise than by due process of law. The very same order has been passed against the 2nd opposite party vide order in I.A. No. 24/2010 dated 15-01-2010. The said orders have not been challenged by the opposite paries.
7. It is not in dispute that the deceased Jacob Lukose availed himself of a loan of Rs. 3,10,000/- to purchase the car bearing Registration No. KL-7/3201. According to the complainants since the late Jacob Lukose had been undergoing treatment at various hospitals they could not remit the loan promptly. Thereafter he succumbed to his ailments. The prayer of the complainants are limited to the extend that not to sent gundas to recover the amount and not to seize the vehicle otherwise than on due process of law. Both the opposite parties in their version specifically stated that they have no intention to seize the vehicle otherwise than by due process of law or to send gundas to recover the amount which necessarily substantiates that the apprehension of the complainants are unfounded. In that case we are of the considered opinion that the order in the above Interim order can be made absolute.
8. According to the opposite parties the 1st opposite party assigned the loan account of the deceased to the 2nd opposite party by Ext. B2 deed of assignment. The opposite parties did not produce any document to show that they have duly intimated the assignment of the loan account to the deceased or to the complainants. The opposite parties also failed to produce the hire purchase agreement which had been admittedly entered into between the 1st opposite party and the deceased. Without the production of the hire purchase agreement by the opposite parties which is of vital importance to the adjudication of the case we are not to rely on Exbt. B4 statement of account especially so the same was not substantially controverted.
9. Point No. ii. The primary grievance of the complainants having been met squarely and adequately we do not think order for compensation or costs of the proceedings are called for.
10. In the result, we partly allow the complaint and the order in I.A. No. 337/09 dated 10-07-2009 and in I.A. No. 24/2010 dated 15-01-2010 are made absolute.
Pronounced in the open Forum on this the 31st day of December 2010
Sd/- A Rajesh, Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
