Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original opposite party Nos.1 & 2 against the order dtd.29.11.2007 passed by District Consumer Forum, Yavatmal in consumer complaint No.238/2006 by which the complaint has been partly allowed, which was filed by the original complainant / respondent herein.

2.      The case of the respondent herein as set out in his complaint filed before Forum in brief is as under.

          The complainant purchased four wheeler hereinafter called as vehicle by obtaining loan of Rs.1.70 Lacs from opposite party No.1 – Financer as per agreement dtd.01.10.2003.  The said loan was to be repaid with 0% interest, in instalments. The complainant / respondent herein paid instalments regularly. He paid initial instalments in cash and further three instalments by way of Cheque.  His vehicle met with an accident and it was damaged. Therefore, it was taken for repairing to the workshop. The opposite party repossessed that vehicle from workshop  and by coercion recovered Rs.1,16,800/- on 29.03.2005 and Rs.86,100/- on 23.08.2005 from the original complainant and then only gave back possession of the vehicle to him. Thus, the opposite party recovered total amount of Rs.2,50,630/- from the complainant under coercion as against loan of Rs.1.70 Lac, which was to be repaid with 0% interest.  Hence, the complaint was lodged through the consumer council with the opposite party and complainant demanded refund of Rs.80,630/-, which was recovered in excess from him. The opposite party No.2 gave false reply. Therefore, original complainant had prayed that direction be given to opposite party Nos.1 & 2 to refund him Rs.80,630/- and also to pay him compensation of Rs.5,000/- for physical & mental harassment and cost of Rs.3,000/-.

3.      The opposite party Nos.1 & 2 appeared before the Forum below and resisted the complaint by filing reply. The opposite parties denied that the complainant regularly paid instalments.  But admitted that loan of Rs.1.70 Lac was advanced to complainant, which was to be repaid with 0% interest.  It is the case of the opposite parties in brief that Rs.10,000/- were recovered towards insurance deposit, Rs.34/- were assessed towards finance charges. Thus, agreement was made for Rs.1,80,034/-. Rs.16.000/- were charged towards processing fee. Rs.750/- were charged towards documentations. Re.1/- was charged towards option money. The first instalment of Rs.16,181/- was to be paid by the complainant. Thus, total amount of Rs.2,12,966/- was to be recovered from the complainant.  The complainant did not pay insurance charges of Rs.12,513/- of third year and hence that amount was credited to his account and it is also to be recovered fro him.  The complainant did not regularly pay the instalments and therefore the vehicle was repossessed by the opposite parties and for that opposite parties incurred expenses of Rs.6,000/-, which is also to be recovered from the complainant.  The five bank Cheques given by the complainant were dishonoured by the bank and therefore, Rs.1,500/- were debited to his account towards expenses incurred by the opposite parties for clearing of five Cheques. Thus, total amount of Rs.2,32,979/- were to be recovered from the complainant. He voluntarily paid Rs.3,70,262/- to the opposite parties and hence after deducting Rs.2,32,9779/- from Rs.3,70,262/-, the balance amount of Rs.1,37,283/- was to be refunded to the complainant.  However, Rs.53,958/- were again deducted from Rs.1,37,283/- and balance amount of Rs.83,325/- was actually refunded by way of bank demand draft to the complainant. The interest @ 36% was applied over the overdue amount as per Clause No.2.9(e) and Clause No.15.1 of the loan agreement.  Therefore, the opposite parties had prayed that complaint may be dismissed.

4.      The Forum heard both parties and considered evidence brought on record and then passed the impugned order.  The Forum observed in the impugned order in brief that the opposite parties recovered from the insurance company the claim towards the loss sustained by the vehicle in accident and did not submit account documents about the same though the direction was given to produce the same and thus, opposite parties suppressed material aspect of the case.  The loan agreement was produced before it after long period of so may years when the complaint was remanded to the Forum by State Commission in appeal and that no explanation for the said delay is given by the opposite parties. The Forum also observed that alleged dishonoured Cheques are also not produced by the opposite parties. Thus, conduct of the opposite parties is doubtful. Moreover, though it is shown by the opposite parties that premium of first year ad second year was to be paid by the opposite parties as per agreement, the agreement about premium about third year is silent. The opposite parties have produced no evidence to show that it paid premium of Rs.12,513/- for third year, but the opposite parties recovered that amount from the complainant and therefore complainant is entitled to refund of the same.

5.      Moreover, Forum below also observed that the opposite parties accepted deposit of Rs.10,000/- from the complainant, which is also required to be refunded to him.  The Forum below also observed that as per reply given by the opposite parties, only Rs.2,32,979/- were due from the complainant, but he paid Rs.3,70,262/- and therefore balance amount of Rs.1,37,283/- was to be refunded to the complainant but only Rs.83,325/- were refunded to him by the opposite parties and hence the complainant is entitled to balance amount of Rs.53,958/-.  The Forum below, thus, did not agree with the aforesaid defence of the opposite parties and directed the opposite party Nos.1 & 2 to pay to the original complainant Rs.53,958/- with interest @ 9% p.a. from 20.10.2005 and also to refund him Rs.12,513/- & Rs.10,000/- as discussed above.  The Forum also directed the opposite parties to refund Rs.1,500/- to the complainant, which was recovered from him (complainant) towards dishonour of five Cheques.  The Forum below further directed the opposite parties to pay compensation of Rs.5,000/- to the complainant towards physical & mental harassment and cost of Rs.3,000/-.

6.      Thus, this appeal is filed by the opposite party Nos.1 & 2 against that order. We have heard Advocate M R Joharapurkar appearing for the appellants. None is present for the respondent / original complainant at the time of final hearing.  We have considered Written Notes of Arguments filed by the learned advocates of the appellants and respondent. We have also considered the evidence brought on record by both the parties before Forum.

7.      The learned advocate of the appellants relied on the loan agreement filed on record and submitted that as per loan agreement interest was to be applied @ 36% p.a. over the overdue amount and as the complainant did not regularly repay the loan instalments, the said rate of interest was applied over the overdue amount.  He also produced account statement in support of his submission and thus submitted that the Forum has not considered in right perspectives the said loan agreement and the account statement. He, therefore, requested that as the impugned order is erroneous, it may be set aside.

8.      On the other hand, the respondent’s advocate in his Written Notes of Arguments filed in appeal supported the impugned order and submitted that the loan was repaid within stipulated time of two years by the complainant.  Hence, there was no question of application of any such interest @ 36% p.a., which was subsequently added by the opposite parties in the agreement without knowledge of the complainant and it is clear from different in writing style by which the said rate of interest was added written in the agreement and the writing by which the rest of the contents of the agreement were written. He further submitted that there is no entry in the Passbook about the dishonour of five Cheques, of which copy is filed on record and also no such dishonoured Cheques were produced on record and hence the case of the opposite parties has been rightly disbelieved by the Forum below. He therefore, requested that the appeal may be dismissed.

9.      It is pertinent to note that the Forum below had initially allowed the complaint after hearing both parties on 01.12.2006, which was challenged by the opposite parties by filing appeal No. 20/2007 before this Commission.  The said appeal was partly allowed and complaint was remanded for giving permission to opposite parties to produce loan agreement before Forum with direction to the Forum to decide the complaint afresh.  Upon remand of the complaint, the loan agreement was produced before the Forum. Further we find that though in the loan agreement there is a clause about application of interest @ 36% p.a. over the amount due, there is no evidence to show that five post dated Cheques delivered by the complainant to the opposite parties towards future instalments, were dishonoured. In our view, the account statement produced on record is not sufficient to show that those Cheques were dishonoured because of insufficient amount in the account of the complainant on which the said Cheques were drawn. It is the specific case of the complainant / respondent herein that he regularly paid instalments.  No notice was given to the complainant by the opposite parties about dishonour of the Cheques and about amount due from him prior to taking possession of the vehicle from him.

10.    Moreover, we also find that the loan agreement was produced after a long delay before the Forum and considering all facts & circumstances, the Forum below has rightly not believed that loan agreement.

11.    The opposite parties also did not come with clean hands before the Forum.  The opposite parties did not produce any document before the Forum showing that amount of insurance claim was received by them after the insured vehicle was damaged and taken to the workshop for repairing by the complainant.

12.    We also find that the opposite parties / appellants admitted in their reply that an amount of Rs.2,32,979/- was due from complainant and they recovered Rs.3,70,262/- from him and therefore, Rs.1,37,283/- was to be refunded to him. However, it refunded only Rs.83,325/- to him and no explanation is given for not refunding balance amount of Rs.53,958/- to him.  Hence, the Forum has rightly directed the opposite parties to refund Rs.53,958/- with interest @ 9% p.a. to him.

13.    The Forum below has rightly held that the complainant is entitled to recover Rs.12,517/- towards insurance premium not paid through recovered from him.  The Forum has also rightly held that the complainant is also entitled to money deposit of Rs.10,000/- and refund of Rs.1,500/- towards charges recovered as against dishonour of Cheuqes, which is not proved.

14.    In our view, there is no merit in this appeal.  The Forum has considered all the material aspects of the case in right perspectives and reached to correct conclusion and findings. Hence, the appeal deserves to be dismissed.

ORDER

i.        The appeal is dismissed.

ii.       No order as to costs in this appeal.

iii.      Copy of the order be furnished to both parties free of cost.