BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 147/1999

Dated : 31.01.2009

Complainant:

Vinod. D, Kattuvila Veedu, Kunnathoor East P.O, Poruvazhy (via) Kollam District.

(By adv. K. Vinod Sankar)

Opposite parties:

1. Prakash Leasing ltd., Reg. Office No. 50, 1 Main Road, Vasanth Nagar, Bangalore – 560 052.

    

2. Gopan, Branch Manager, Prakash Leasing Ltd., 1^st Floor, The Aracade, Near Killippalam, Karamana, Thiruvananthapuram.

(By adv. V. Ajakumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 20.03.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been heard on 16.12.2008, the Forum on 31.01.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

Brief facts of the case leading to the filing of the complaint are as follows: The complainant had availed hire purchase loan from the opposite parties. The amount financed by the opposite parties is Rs. 1,80,000/- and the amount payable is Rs. 2,72,244/- in 35 instalments. The insurance premium is Rs. 7,644/- and the monthly instalment is Rs. 7,560/-. The instalment payments end on 14.11.1998. As on 14.06.1998 the amount due to the opposite parties was Rs. 48,360/- and the balance to be paid is Rs. 37,800/-. The complainant approached the opposite parties on 06.07.1998 and they demanded Rs. 1 lakh for settling the whole claim and accordingly the complainant paid Rs. 1 lakh and requested for clearance certificate. But they failed to give the clearance certificate and further demanded Rs. 36,000/- which was paid by the complainant and the complainant thereafter paid Rs. 2,500/- on 10.08.1998 as demanded by the opposite parties as full and final settlement of accounts. The complainant has been compelled to pay an illegal additional amount of Rs. 52,340/- and the complainant prays for refund of the amount with 24% interest and for compensation.

The opposite parties have filed their version contending as follows: The complaint is not maintainable. The transaction is based on a written contract. The complainant violated the terms of the contract. Actually, the complainant is a defaulter, and so the final calculation was made, and from the final amount, Rs. 9,125/- was waived in favour of the complainant. There was delay in making instalment payment, and so penal interest at the rate of 3% will be charged on that amount. There was no promise to settle the claim on payment of Rs. 1 lakh. It is true that the complainant has approached for a settlement on 06.07.1998, and on that day his account showed dues of Rs. 1,13,679/-. There was arrears in payment of capital of Rs. 78,965/-, and O.D.C.C was Rs. 34,174/-. So the total amount payable on 06.07.1998 was Rs. 1,55,185/-. On the same day he paid Rs. 1,00,000/- and the balance was Rs. 55,185/-. No excess amount has been collected and the claim is to be rejected.

The matter was heard once and an order was passed in favour of the complainant. The opposite parties preferred appeal and the order was set aside and the matter was remitted back permitting the opposite parties to cross examine PW1 and thereafter to dispose the matter giving opportunity to both sides to substantiate their respective cases. Accordingly, the matter was posted for further proceedings, but the opposite parties did not turn up to cross examine PW1 and no further evidence has been adduced by the opposite parties on their behalf.

On the basis of the contentions, the following points are raised for consideration.

1. Whether the complainant has made any excess payment?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. Whether the complainant is entitled for the reliefs claimed?

Points (i) to (iii):- Even after the opposite parties were given opportunity to adduce evidence, they have not utilized the same. There is no oral or documentary evidence on the part of the opposite parties. The complainant has not been cross examined. The opposite parties have not produced the copy of the original title deed. The calculations reached by the opposite parties in their version has not been explained and corroborated with ample evidence. In the version, it is pointed out that the amount due on 06.07.1998 is Rs. 1,13,679/-. But in view of the fact that the opposite parties, who are in possession of all the records and necessary details, are refusing to produce the contract and the proper calculation, it is to be assumed that the claim of the complainant is true. The only viable contention on the part of the opposite parties is that the complainant has paid Rs. 11,244/- as insurance amount. The amount sought to be recovered is Rs. 52,340/-. From this amount, Rs. 11,244/- is to be deducted. The balance is Rs. 41,096/-. The failure of the opposite parties to produce the original hire purchase agreement as well as the failure to show the correct accounts inspite of sufficient opportunities will lead to the conclusion that the claim of the complainant is true, and therefore, on the above reasons, Rs. 41,096/- is to be refunded by the opposite parties. Interest at 16.5% is to be allowed from date of payment. The complainant was made to pay an additional amount illegally and therefore the complainant is entitled to realize compensation which we fix at Rs. 5,000/-. Costs Rs. 3,000/-.

In the result, the opposite parties are directed to pay to the complainant Rs. 41,096/- with 16.5% interest from 10.08.1998 till date of realization and also with costs of Rs. 3,000/-. Time for compliance two months, failing which execution can be taken.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31^st January 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 147/1999

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vinod

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of terms and conditions of instalment schedule dated

14.12.1995 sent by the opposite party.

P2 - The demand list sent by opposite party.

P3 - Receipt No. 323 dated 06.07.1998 showing the payment of

Rs. 1 lakh.

P4 - Receipt No. 0000417 dated 03.08.1998 showing the

payment of Rs. 36,000/-.

P5 - Receipt No. 0000436 dated 10.08.1998 showing the

payment of Rs. 2,500/-.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT