D.O.F:24/07/2018

                                                                                                  D.O.O:30/09/2022

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION KASARAGOD

CC.No.120/2018

Dated this, the 30^th day of September 2022

PRESENT:

SRI.KRISHNAN.K                         :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Susamma Kurian,

W/o Kurian, House hold,

R/at Love dale veedu, Near Durga HS

Kanhangad P.O, Kasaragod District                                : Complainant

(Adv: Shajid Kammadam)

                                                            And

M/s Mahindra & Mahindra Financial Service Ltd,

Fourth Floor, Noel House, Thrikakara P.O

Kakkad, Kochi                                                                      : Opposite Party

Rep: by its Authorized Officer

(Adv: Babuchandran.K)

                                                                        ORDER

SRI.KRISHNAN.K   :PRESIDENT

            The complaint filed under section 12 of Consumer Protection Act.  His case is that he availed loan from Opposite party for purchase of vehicle KL-60 G 1900.  Terms of agreement not supplied signed blank cheques obtained, considerable amount paid towards principal and interest.  But Opposite party is not allowing to  close the loan inspite of his preparedness to pay correct amount due.  Statement of account is not provided.  Complainant filed complaint for charging interest without any source of law.  Thus there is unfair trade practice and claimed Rs. 25,000/- as compensation to the complainant.

            The Opposite party filed their written version admitting availing loan of Rs. 6,50,000/-on 21/10/2013 and denying other allegations in the complaint.  As per Opposite party Rs. 454449/- is due as on 27/11/2018 EMI.  The Opposite party denied having a deficiency in service or negligence in any filed.  The complainant paid Rs. 6,33,000/- towards loan transaction .  complainant is to pay Rs. 10,000/- in 57 installments.  Total amount payable is Rs. 9,10,000/-.  Contentions otherwise is without basis and to dismissed.

            The complainant filed chief affidavit and was cross examined as Pw1 Ext A1 to A3 documents marked from her side.  Ext A1 is copy of lawyer notice, Ext A2 is the reply notice and A3 is loan repayment chart.  The Opposite party produced agreement of loan and is marked as X1.

            As per rival contentions following points arise for consideration.

1. Whether hypothecation agreement is true, valid or genuine and explained to complainant and acted up on as per law?
2. Whether there is deficiency in service or unfair trade practice from Opposite Party?
3. Whether complainant is entitled to any compensation so for what relief?

Issues are considered together Opposite party did not adduce oral evidence.Cross examination of Pw1 shows that he signed agreement without knowing contents, it was not read over.During evidence loan agreement was not shown or confronted the same with Pw1 nor invited his attention to the signature, there is to admit or deny.X1 loan agreement was not witnessed by any witness.Loan agreement is not proved as per mandate of law.Witness coloum it is kept blank loan agreement is not proved as per law nor its execution proved.The Opposite party is not examined despite specific denial of agreement and its terms therein including interest.Borrowers address is also not filed up.Further Ext A2 shows total outstanding as Rs. 2,56,000/- additional charges Rs. 1,07,249/- and future balance is shown as Rs. 46,000/- but without any details or basis.

ZMAGMA FINCORP LTD VS Rajesh Kumar Tiwari, 01 October 20202020 0 AIR (SC) 4978

Consumer protection Act 1986 – section 3 and 4 adjudication and settlement of consumer disputes – Consumer Protection Act 1986 is not in derogation of any law in existence, but is addition thereto – consumer protection Act 1986 does not over ride contract Act, and other enactments in force, applicable to service availed by consumer from service provider, consumer of a service may also be entitled to damages for any loss suffered by consumer, by reason of denial or deficiency in service for which consumer has paid or agreed to pay.

In cases of breach contract, liquidated damages may be imposed on party in breach if agreement provides for liquidated, that is a fixed amount by way of damages.Where parties to an agreement have not agreed to liquidated damages which are compensatory,such compensatory damages are not to punish party in breach, but to compensate party in breach for losses suffered as a result of breach (Para 55, 56,58 and 62)

The complainant did not adduce any evidence of sustaining financial loss.No evidence of amount of damage caused.Ext A5 above loan agreement is not proved as per law.There is deficiency in service in the matter of providing details of loan interest and other dues claimed.Opposite party is thus liable to pay compensation to complainant.

In the result complaint is allowed in part, Opposite party financier shall pay compensate a sum of Rs. 15,000/- (Rupees Fifteen thousand only) to complainant towards damages for deficiency in service and costs.

Time for compliance within 30 days of the receipt of the order.

Sd/- Sd/- Sd/-

MEMBERMEMBERPRESIDENT

Exhibits

    A1- Lawyer Notice

   A2- Reply Notice Dt: 03/04/2018

   A3- Statement of account

   X1- Loan agreement

  Witness Examined

  Pw1- Susamma Kurian

       Sd/-                                                  Sd/-                                                        Sd/-

MEMBER                                          MEMBER                                          PRESIDENT

Forwarded by Order

                                                                                    Assistant Registrar

Ps/