SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite parties to pay the compensation Rs.1,00,00,000/- together with cost of the complainant alleging deficiency in service on the part of opposite parties. Briefly stated the facts of the case that complainant’s father late Gangadharan was the owner of a motor car bearing registration No.KL 13 Q9097. Gangadharan purchased the car in the year 2006. The car was subject to a hire purchase agreement with OPs and it was endorsed in the registration certificate. Gangadharan during his life time entered with one time settlement with OPs for Rs.68,000/-. The said amount was paid in two bank receipt voucher. One voucher for Rs.28,000/- and another one for Rs.40,000/- totaling Rs.68,000/- on 31/12/2011 and the loan was closed on 31/12/2011. Complainant’s father K Gangadharan died intestate on 20/01/2012 and he was survived by his widow Vimala K T. Three children namely Nisha K T, Byju K T complainant and Lisa K T Legal heir ship certificated issued by Tahasildar, Kannur as per law. At the time of settling the hire purchase transaction by late Gangadharan, he could not obtain the required papers signed and delivered by OPs for cancelling the endorsement in the registration certificate as the payment was made in the Kannur branch of the OP No.3. After the death of complainant’s father, complainant approached the office of second and third OPs for a no objection certificate. OP postponed the issuance of the certificate for one reason or other and finally refused to issue certificate on the ground that the loan availed by the complainant’s father is overdue and NOC could be issued after clearing that loan and lien is marked on the said loan. Father has availed a personal loan and no lien is marked for the loan said loan. When he approached RTO Kannur for RC retransfer, RTO vide letter dated 20/07/2014 informed that the application for transfer of Registration to the complainant’s name could not be considered for want 1) Original of the registration certificate 2) Remittance of requisite fee and NOC from bank. Complainant is ready to comply with the demand of RTO except NOC from the bank. OPs are refusing to issue NOC in spite of closing the loan in respect of the vehicle. Hence complaint is not able to produce the same. Complainant submits that the vehicle is kept idle from date of the death of father. Filed writ petition and appeal before Hon’ble High Court appeal was allowed and disposed on 30/05/2019, after the lapse of 4 years writ petition was allowed with direction as follows. The respondent Bank shall within a period of two weeks from today issue necessary no objection certificate consent in the appropriate form prescribed under the Central Motor Vehicle Rules. So as to facilitate the transfer of ownership of vehicle bearing registration NO. KL 13 Q 9097 in the name of complainant here in. Further OPs have willfully refused to comply the judgment within the time limit fixed by the Hon’ble High Court. Complainant is left without any remedy of law but to file a petition under section 12 of the contempt of Court Act before the Hon’ble High Court as contempt case No. 419/2020. When the complainant was about file contempt of Court case OP No.2 issued the loan closure letter. The said letter is dated 29/07/2020, but the same was received only on 10/08/2020. Complaint submits that for last 8 years OPs were dragging the matter and harassing the complaint and his family by withholding the issuance of NOC for lifting the endorsement. The caused great mental agony and injury to the complainant. For the last 8 years complainant could not use the vehicle properly and the same was kept idle. So vehicle is not in running condition. All this has happened due to the deficiency of service by the OP. At the modest rate complainant estimate the damages at Rs.10 lakhs. On 16/10/2020 complainant has caused a lawyer notice to the OPs to pay the damages of rs.10 lakhs. The said notice was received by the OPs but not sent any reply nor paid. Hence the complaint.
After receiving notice OPs filed version stating that the complainant’s father Mr. Gangadharan had availed Auto Loan bearing account NO.10637767 for an amount of Rs.6,80,000/- from the OP bank in the year 2006. As per the terms of the loan agreement executed by Mr. Gangadharan and the OP bank. Mr. Gangadharan is liable to repay the loan amount with monthly installments of Rs.14,600/- with a total duration of 60 months commencing from 07/10/2006 to 07/09/2011. The complainant is liable to pay interest and overdue charges in case of default. Further submitted that MR. Gangadharan had also availed Business loan bearing account No.14366352 for an amount of Rs.4,08,000/- from the OP bank in the year 2009. As per the terms of the loan agreement, he is liable to repay the loan amount with monthly installments of Rs.15,371/- with a total duration of 36 months commencing from 04/02/2009. He is liable to pay interest and overdue charges in the event of default. Mr. Gangadharan was highly irregular in repaying both the loan accounts and has decided to close Auto Loan bearing loan account NO. 10637767. Accordingly on 30/12/2011 he made cash remittance of Rs.68,000/- towards closure of Auto loan account and agree to clear outstanding dues in Business loan account NO. 14366352. Basis the above understanding, Auto Loan stands closed in the system. However, an amount of Rs.8,08,803/- (total payments overdue) is outstanding in the business loan bearing account No.14366352. This OP is legally entitled to retain termination letter/ closure letter of Auto Loan until closure of business loan as stated above and therefore, exercised right to lien by this OP by virtue of specific clause in the loan agreement. Further submitted that the statement that the vehicle was kept idle from the date of death of father and the vehicle could not be put on road etc are not correct and hence denied. It is true that the complainant had preferred writ petition NO.564/2015 before the Hon’ble High Court of Kerala and the same was dismissed as not maintainable. Aggrieved by the same, the complainant had preferred writ appeal No.1228/2015 before the Hon’ble High court of Kerala. The matter was adjudicated by the Hon’ble High court of Kerala without considering the contentions of the OP bank. Hence, the OP bank had preferred Review petition No. 4485 and the same is pending consideration before the Hon’ble High court of Kerala. Meantime, the OP bank had issued NOC to the complainant without prejudice to bank’s rights and remedies available to it. The statement that the complainant suffered mental agony and injury due to the act of OP and could not use the vehicle false and hence denied.
The allegations that on account of unfair banking, complainant has sustained great loss, loss sustained to the complainant cannot be compensated by money are also not correct and hence denied. Hence prayed for the dismissal of complaint.
The complainant in proof of his case filed his affidavit evidence and got the documents marked as Ext.A1 to A21. While pending of this case, complainant has taken steps to appoint advocate commissioner to prepare the report of the present condition of the vehicle in the Mechanical side and physical condition with the help of an expert commissioner IA 47/2021, which was allowed and the Advocate commissioner and Expert has filed reports, marked as Ext.C1 to C3 through examining the advocate commissioner as Pw2. Pws 1 and 2 were subjected to cross-examination by OPs. From the side of OPs documents were produced and marked Ext. B1 to B6.
After that the learned counsel for complainant and for OPs made oral arguments. The learned counsel for complainant also filed written argument note.
The undisputed facts in this case are that complaiannt’s father late Gangadharan was the owner of the car having registration NO. KL 13Q9097 and he purchased the car in the year 2006 and the car was subject to a loan availed from the OP NO.3. It is also an admitted fact that late Mr. Gangadharan closed the loan on 31/12/2011. Further he expired on 20/01/2012 and before his death, he could not get NOC and other required loan closing papers from OPs. Further when the complainant approached the OPs for NOC, the OPs denied to issue certificate on the ground that the business loan availed by complainant’s father was overdue and NOC could be issued after clearing the said loan. Further both parties admitted that complainant had filed writ petition NO.564/2015 before Hon’ble High Court of Kerala and after dismissal of the writ petition, complainant preferred writ appeal NO. 1228/2015 and obtained an order on 30/05/2019 with direction to OPs to issue NOC of the car to complainant within two weeks from the date of order. But the OPs issued NOC only on 10/08/2020.
Complainant alleged that he obtained NOC from OP after 8 years after filing writ petition and contempt of court before Hon’ble High court of Kerala and hence for the said 8 years he could not use the vehicle and the same was kept idle. As a result the 4 tire have become flat, entire plat form was erode by rust. Engine oil has become thick and block. Engine piston is not working properly. Overhand engine work has to be done. For inspect the condition the vehicle and for report, complainant has taken steps to appoint an an expert, and as per the application service Manager (Auto mobile mechanic) Makkah centre, Cheruvarolet was appointed and filed detailed report stating the defects noted in the vehicle and the repair charges for the maintenance of the vehicle and painting expert appointed by the commission also submitted report together with expense for the full painting of the vehicle. Since these reports and expenses assessed by the experts were not discarded, the amount assessed by the experts in Ext.C1 to C3 can be taken into account. From the evidence it is revealed that the above said repair expenses was happened due to the delay in issuing NOC by the OPs. So they are responsible for the monetary loss happened to the complainant.
Considering the entire facts and circumstances of the case, we are of the view that there is deficiency in service on the part of OPs. Hence complainant is entitle dot get relief.
In the result complaint is allowed in part opposite parties are directed to pay Rs.2,73,075/-, 90,000/- towards maintenance expenses of the car and Rs.1,00,000/- towards compensation for the mental agony and hardship and monetary loss caused to the complainant due to the deficiency in service on the part of opposite parties in causing delay in issuing NOC to the complainant. Opposite parties are further directed to pay Rs.10,000/- towards cost of the proceedings. Opposite parties shall comply the order with one month from the date of receipt of this order, otherwise the amount Rs.2,73,075, 90,000 + Rs.1,00,000 carries interest @ 9% per annum from the date of order till realization. Complainant is at liberty to file execution application to realize the awarded amount.
Exts.
A1- R C of vehicle
A2- Death certificate
A3- Legal heir certificate
A4- Settlement offer HDFC bank
A5- Repayment receipt
A6- Repayment receipt
A7- Copy of judgment
A8- Copy of WA No.1228/2019
A9- Letter issued to HDFC bank dated 10/06/2019
A10- Reply notice dated 13/06/2019
A11- Letter dated 29/07/2019
A12- Letter issued by HDFC bank dated 30/07/2019
A13- Certified copy of order in competent case No.419/2020
A14- Copy of lawyer notice and postal receipt.
A15- Acknowledgement card
A16- Copy of notice and receipt.
A17- Acknowledgement card (3 in Nos)
A18- Loan closure issued by HDFC
A19- Cash bill
A20- Voucher dated 10/08/2021
A21- Cash bill dated 13/08/2021
B1-Repayment schedule
B2- Car loan agreement
B3- Copy of WP(C) No.564 / 2015 of Hon’ble High court of Kerala
B4- Copy of WA No.1228/2019 of Hon’ble High court of Kerala
B5-Account statement dated 30/08/2006 to 14/03/2023
B6-Account statement dated 25/07/2008 to 14/03/2023
C1-Commissioner’s report
C2&C3- Expert’s report
Pw1-Complainant
Pw2- K Vinod Raj- Advocate commissioner
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
