BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                        C.C.No.20/2012

Dated this the 18^th day of December 2015

K. Kalpana, wife of R. Krishnan          

rep. by her power Agent R. Krishnan    

39, Kannadiyar Street, Karaikal  

                                                ….     Complainant

Vs.

1. The Manager       

    Sri Balaji Finance             

    128/2 North Car Street,                            

    Thiruchencode 637 211  

    Namakkal District, Tamil Nadu

2. Sri Balaji Finance                       

    No.1, First Floor, 6^th Cross Street     

    Sundaramoorthy Vinayagapuram

    Villianur, Pondicherry rep. by its

    Power Agent.

                                                ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

           MEMBER

FOR THE COMPLAINANT            :  Thiru T. Durai, Advocate

FOR THE OPPOSITE PARTIES     :  For OP1: Thiru K.K. Shanmugam, 

                                                                             Advocate

                OP2 :       Ex parte 

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties

1. To return a sum of Rs.9,500/- with interest at 12% per annum from 17.10.2008 which was deducted by them while giving loan on 17.10.2008;
2. To give the monthly loss of income of Rs.15,000/- from 01.04.2011 to 31.03.2012 and Rs.1,80,000/- towards road tax paid till the tractor was running on the road and Rs.15,000/- per month towards loss per month;
3. To give compensation of Rs.1,00,000/-for the mental agony;
4. To return the original R.C. Book of the tractor and other documents;
5. To direct the Opposite Parties to issue No Due Certificate
6. To direct the Opposite Parties to cancel the Hire Purchase endorsement from the R.C. Book
7. To give cost of Rs.10,000/- and for other reliefs.

2.  The case of the complainant is as follows:

          The complainant mortgaged her tractor bearing Regn. No. PY 02 A 8904 and its tipper bearing Regn. No. PY 02 0396 with the Opposite parties Finance Company on 17.10.2008 and got a loan of Rs.1,50,000/-.  At the time of getting loan of Rs.1,50,000/-, the second Opposite Party deducted a sum of Rs.7,500/- towards document charges, Rs.1,500/- for making Hire Purchase endorsement in the R.C. Book, Rs.500/- for Travelling Expenses, totally a sum of Rs.9,500/- and gave a sum of Rs.1,40,500/- in cash.  The above deduction of Rs.9,500/- is not valid in law and therefore, the Opposite Parties are duty bound to return the same with interest at 12% per annum.  As per Hire Purchase Agreement, the complainant has to return the loan amount in 25 monthly instalments at the rate of Rs.9,000/- per month for the first 15 instalments and Rs.7,500/- per month for the remaining instalments.  The complainant has not paid the monthly instalments from 19^th instalments till the 25^th instalment, however she had paid a sum of Rs.52,500/- through Demand Draft from State Bank of India, Karaikal and paid the same to the Opposite Party on 15.6.2011 and closed her account for which, nor receipts were issued by the Opposite Parties which is deficiency in service.  Even after closing the accounts, the Opposite Parties  did not return back the Hire Purchase Agreement, two unfilled promissory notes, four signed blank papers, the Hire Purchase Surety Thiru A. Panchabagesan's ICICI Bank cheques, the original RC Books of Tractor and Tipper.  Hence, the complainant issued a legal notice to the first Opposite Party on 11.08.2011, despite; the Opposite parties did not return the above documents to the complainant.  The above act of the Opposite Parties leads to deficiency in service.  Since the RC Book is with the opposite parties, the complainant was unable to pay the road tax to the tractor and tipper and also unable to take F.C. due to which the complainant sustained loss of Rs.15,000/- per month from 1.4.2011 and till 31.03.2012 the complainant lost her income to the tune of Rs.1,80,000/-.  Apart from the above, the opposite parties are liable to pay a sum of Rs.15,000/- per month to the complainant till the original R.C. Books and other documents are returned to her.  The opposite parties insisted the complainant to pay a sum of Rs.36,000/- for default in the instalments which is unlawful, deficiency in service and unfair trade practice.  Hence, this complaint.   

3.       The following are the averments narrated in the reply version filed by the Opposite Party No.1:

          The complaint is not maintainable in law, unsustainable on facts.   This Opposite Party denied  all the allegations mentioned in para Nos. 2 to 8 of the complaint.  It is stated by this Opposite Party that the complainant has borrowed a loan of Rs.1,50,000/- on 17.10.2008 by making Hire Purchase Endorsement on the R.C Book and the above said loan is to be repaid in 25 instalments i.e. Rs.9,000/- per month for 15 instalments and Rs.7,500/- per month for 10 instalments,  The above said instalments to be completed by 17.10.2010, but the complainant failed to do so.  As soon as the Hire Purchase Endorsement made in the R.C. Book, the complainant took back the original R.C. Book and gave its Xerox to this Opposite Party.  When this Opposite Party enquired with the complainant about the legal notice issued by her on 11.08.2011, she had stated that it was sent with wrong allegations and that she did not take any activity against the said legal notice and admitted to settle the loan soon and hence, this Opposite Party did not send any reply to the legal notice dated 11.08.2011.  The complainant asked this Opposite Party a new loan, but this Opposite Party stated that the old loan should be settled and then only, new loan will be given.  This opposite party did not receive two unfilled promotes, four blank signed papers, ICICI Bank cheques of A. Panchabagesan and original R.C. Book and also stated that they never use to get the same.  The complainant only kept the RC Book with her and failed to pay road tax, F.C. etc for which, this Opposite Party is not held liable.  This opposite Party has not done any deficiency in service, the complainant alone has defaulted in the payment of instalments for which, this Opposite Party is going to file a suit against the complainant.  This Opposite Party further stated that if any payment is to be received from this Opposite Party, the complainant has to seek remedy in the Munsif Court and not before this Consumer Forum. This Forum has no jurisdiction to entertain this complaint.  Further the second Opposite Party is not an agent for first Opposite Party and the first Opposite Party has no agent for their company.  Hence, prayed for dismissal of the complaint.

4.       Points for determination are:

          1. Whether the complainant is a Consumer?

          2. Whether this Forum has jurisdiction to entertain the complaint?

          3. Whether any deficiency in service attributed by the Opposite Parties?

          4. To what relief, the complainant is entitled for?

5. On the side of the complainant, CW1 was examined and Exs.C1 to C15 were marked.  On the side of the Opposite Party, no witness was examined and no documents were marked.

6.       Point No.1:

          The second Opposite Party is doing finance business under the name and style of  Sri Balaji Finance at Thiruchengode and the second Opposite Party is their agent at Villianur, Pondicherry and through him only, the complainant herein has availed a loan from first Opposite Party by mortgaging her Tractor and Tipper with an undertaking to repay the same in 25 monthly instalments vide Ex.C1.  The complainant availed financial facility from Opposite Parties.  Hence, the complainant is held as a Consumer to the Opposite Parties.

7.       Point No.2:

          It is the main allegation of the Opposite Party No.1 that this Forum has no jurisdiction to entertain this complaint since their office is situated at Thiruchenkode, Namakkal District and if any dispute arises, the District Forum at Namakkal District alone is having jurisdiction to entertain this complaint.  To refute their contentions, the learned counsel appearing for the complainant has stated that even though the first Opposite Party's finance company is situated at Thiruchenkode, Namakkal District, the first opposite Party has given the loan amount only through second Opposite Party.  To fortify his contentions, the complainant has produced Ex.C13 attested true copy of  the statement given by the second Opposite Party before the Sub Inspector of Police, Cuddalore, wherein, the second Opposite Party has stated that he is the agent of first Opposite Party and also admitted that as an agent of first Opposite Party, he has arranged for the loan to the complainant.    Further the summons to  the second second Opposite party was served and acknowledged by the second Opposite Party as the agent of first Opposite Party at Puducherry Branch of one V. Sadacharam on 04.07.2012.     Hence, this Forum has come to the conclusion that it has jurisdiction to entertain this complaint that the Opposite Parties carries business within the local limits of this Forum.

8. Point No.3:

          The complainant  has mortgaged her tractor and tipper and borrowed a loan amount of Rs.1,50,000/- on 17.10.2008.  At the time of sanctioning the amount,  the second Opposite Party has taken a sum of Rs.9,500/- towards expenses for making endorsement in the RC Book, travelling expenses etc and paid a sum of Rs.1,40,500/- only to the complainant.  The above loan amount to be repaid within 25 monthly instalments such as, Rs.9000/- per month for first 15 months and Rs.7,500/- for the remaining 10 months.  Due to family situation, the complainant failed to make payments from 19^th instalment and after that on 15.06.2011 the complainant paid a sum of Rs.52,500/- through Demand Draft of State Bank of India, Karaikal and settled the entire loan account.  The complainant further alleged that at the time of availing the mortgage loan, the first Opposite Party obtained two unfilled promissory notes, four signed blank papers, ICICI Bank cheques of one Surety A. Panchabagesan, original RC book of the tractor.  Due to which, the complainant was unable to take F.C. and pay the road tax etc.  and hence, she sustained loss of Rs.15,000/- per month.  It is submitted by the complainant that the Opposite Parties kept her tractor's RC Book for the default payment of Rs.36,000/-.  The complainant issued a legal notice to the first Opposite Party on 11.08.2011 vide Ex.C11, the first Opposite Party though received the same, however failed to reply, but has stated false allegations in their reply version.  Hence, the  complainant has preferred this complaint before this Forum by seeking reliefs. 

9.  The second Opposite Party remained absent and set ex parte.

10. To counter the allegations raised against the opposite parties, the first Opposite Party filed its reply versions alleging that the complainant has failed to pay the monthly instalments as per Hire Purchase Agreement.  In fact, the loan amount has to be repaid from 17.10.2008 to 17.11.2010.  Further alleged that the R.C. Book of the tractor was taken back by the complainant as soon as the endorsement made in the Hire Purchase Agreement by giving copy of the same and hence, this Opposite Party does not have the original RC Book with them.

11. It is submitted by this Opposite Party that as soon as he received Ex.C11 the legal notice from the complainant, he contacted the complainant for which, complainant stated that it was sent with false allegations and the complainant would not take any action against the said legal notice and assured to settle the account and therefore this Opposite Party has not replied for the same.   It is also submitted by the first Opposite Party that the complainant sought a fresh loan and this Opposite Party has not given the same and also stated that until and otherwise, the old loan is settled, he will not give any new loan and hence, this complainant has preferred this complaint.  It is also submitted by the first Opposite Party that they never used to get any promissory notes, signed blank papers and RC Book etc.  The first Opposite Party further submitted that the complainant only keeping the original RC Book and has failed to pay the road tax and had not taken the F.C. for the reason best known to the complainant. 

12.  From the above facts and circumstances, it is observed by this Forum that the complainant has borrowed loan from the first Opposite Party through the second Opposite Party vide Ex.C1 to a tune of Rs.1,50,000/- with an undertaking that she will repay the same with 25 monthly instalments.  From Ex.C2 it is found that at the time of borrowing the loan amount, a sum of Rs.9,500/- was deducted towards charges for documents and travels etc.  The complainant has paid the instalments regularly till the 18^th instalment vide Exs.C3 to C8.  On 15.06.2011 the complainant has taken a Demand Draft from State Bank of India, Karaikal for Rs.52,500/- and sent the same to the first Opposite Party vide Ex.C9 for full and final settlement through courier for the default instalments.  The complainant requested the first Opposite Party to send the R.C. Book to enable her to pay the tax and to take F.C.   Hence, it is clear that the R.C. Book of the tractor is being kept with the first Opposite Party.  On go through the Ex.C10 the Statement of Accounts, the complainant has not paid from the 19^th instalments to 25^th instalments to a tune of Rs.52,500/- and the same was paid vide Ex.C9 demand draft with letter.  It is further observed from Ex.C11 legal notice that the complainant sent a legal notice and the same was acknowledged by the first Opposite Party on 16.08.2011, but the first Opposite Party did not reply for the same.   Hence, the defence taken by the first opposite party that while contacting the complainant about the issuance of legal notice, she had stated that it was issued with false allegations and that she would not take any action against the Ex.C11 legal notice dated 11.08.2011 cannot be taken into consideration.  Further, on perusal of Ex.C14 the certified photocopy of judgment in S.T.C. No. 491/2012 wherein, the Judicial Magistrate, Thiruchengode has stated that "the accused has specifically stated and established by way of cross-examination of PW1 and through the evidence of DW1 and DW2, Exs.D1 to D14 that the Officials of Sri Balaji Finance has filed this case through the complainant using the blank cheques issued to them as guarantee for the vehicle loan obtained by the accused's friend's wife namely Kalpana."  Hence, from the above, the plea taken by the first Opposite Party that they never used to take blank promissory notes, signed blank cheque etc. is not sustainable. 

          13. It is further noticed by this Forum that as per Ex.C9 the complainant has settled all the dues and demanded to return the R.C. Book to enable her to pay the road tax to the tractor and to take F.C. for her vehicle.  But, the first Opposite party failed to return the R.C. Book.  Further, after paying the entire amount as per EMI, the retaining of RC Book with the Opposite Party is Unfair Trade Practice.  In the absence of the RC Book, without paying road tax and taking FC for the Tractor and Trailer, the complainant cannot ply the vehicle on road, which would affect her income for livelihood.   If there is any due to be paid or any default occurred in the payment of instalments, the Opposite Party No.1 has to seek remedy through court of law not by keeping the R.C. Book of the Tractor which caused loss to the complainant.  Hence, all the acts of the Opposite Parties clearly establish the deficiency in service which leads to cause mental agony, loss of income and injury to the complainant.  The second Opposite Party is the agent of first Opposite Party and the same was admitted by him in the statement Ex.C13 given before the Sub Inspector of Police, Cuddalore.  Even though, the first Opposite Party filed their reply version has not come forward to let in evidence before this Forum.  Hence,  both the Opposite Parties are jointly and severally liable for the acts committed by them.       With regard to the deduction of Rs.9,500/-, it has been deducted for making endorsement on the R.C. Book with the consent of the complainant.  The complainant has not made any objection at the time of availing loan.  After deduction of such amount only, the loan amount has been given to the complainant and the EMI also made for the loan amount availed by the complainant.  Hence, this Forum has come to the conclusion that the complainant is not entitled for the deducted amount of Rs.9,500/- towards document charges.

Hence, this point is answered in favour of the complainant.

          14.  Point No.4:

          In view of the discussions and decision arrived in Point Nos. 1 to 2 aforementioned, the complainant is entitled for the reliefs as prayed for.  Hence, this complaint is allowed and the Opposite Parties are directed to

1. Return the original Hire Purchase Agreement, two unfilled promissory notes, four signed blank papers, unfilled cheques signed by A. Panchabagesan; Original R.C. Book of the tractor and tipper.
2. To issue No Due Certificate to the complainant
3. Cancel the Hire Purchase endorsement from the R.C. Book of the Tractor and Tipper
4. Give compensation of Rs.20,000/- for the mental agony and deficiency in service;
5. Pay a sum of Rs.5000/-  towards the cost of this proceedings.

The orders pronounced above, should be complied by the Opposite Parties within two months from the date of this order.

Dated this the 18^th day of  December 2015.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          27.02.2015           R. Krishnan   

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF MATERIAL OBJECTS: NIL

( A. ASOKAN )

PRESIDENT

(V.V. STEEPHEN)

MEMBER