Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for refund of Rs.5,521/- + Rs.4,800/- with interest from 14.02.2008 and compensation of Rs.2 lakhs and to return the 10 blank cheques. 2. The brief facts of the complaint are thus; The complainant for purchasing Indica Car, availed loan of Rs.90,000/- from the Opposite party with interest at 14% on flat rate basis and the period of repayment was 24 months at monthly installment of Rs.4,800/-. The complainant had issued 24 advance cheques for Rs.4,800/- and Opposite party had realized 13 cheques. The complainant selling the Indica Car approached the Opposite eparty for prepayment of the balance loan amount on 14.02.2008 and made payment of Rs.48,643/- and requested for return of 12 cheques, but the Opposite party assured that the unused cheques will be destroyed. In spite of pre-closure of the loan, the Opposite party had presented 1 cheque on 10.03.2008 and realized Rs.4,800/-. Further, doubting accuracy of the account made by the Opposite party, the complainant made calculation and came to know that the Opposite party has collected excess amount of Rs.5,521/-. Therefore, he issued a letter to the Opposite party with calculation sheet requested for the excess amount. However, the Opposite party did not reply, nor made any payment of excess amount. When the complainant approached the Opposite party for enquiring the realization of the cheque after foreclosure along with his friend, the Opposite party posed threat to the complainant and his friend. Therefore, the Opposite party has committed deficiency in service the attitude of caused unbearable mental shock and agony to the complainant. Therefore, the present complaint is filed. 3. The Opposite party has filed version admitting the loan borrowed by the complainant and issue of cheques for monthly installments and realization of the 13 cheques. As per the request of the complainant and according to the company norms, the Opposite party received Rs.48,643/- at once and issued the clearance certificate to the complainant. The excess amount of Rs.5,521/- is denied. The Opposite party has received lesser amount, when the complainant approached for early settlement. The complainant was still due of 11 installments coming to Rs.52,800/-, but the Opposite party received Rs.48,643/- with 4% pre-closure charge and hence the complainant himself is still due of Rs.4,157/- to the Opposite party. Since, the complainant has made payment of the balance loan at Mandya Branch, but it was not intimated to the Head Office by over sight and as such the Head Office at Bangalore has presented the cheque to the banker of the complainant by over sight. The complainant and his friend never appeared before the Branch Office to enquire the realization of the said cheque. The Opposite party has not received excess amount and Opposite party is even now ready to return the 10 cheques and also the amount of Rs.4,800/- to the complainant collected by over sight. There is no deficiency in service and the complaint is liable to be dismissed. 4. During trail, the Complainant and one witness are examined as CW.1 and CW.2 and Officer of the Opposite party Company is examined as RW.1 and Ex.R.1 to R.4 are marked. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the Opposite party has collected excess amount of Rs.5,521/- towards the loan amount? 2) Whether the Opposite party proves that the realization of one cheque of Rs.4,800/- is by over sight? 3) Whether the Opposite party has committed deficiency in service? 4) What order? 7. Our findings and reasons are as here under:- 8. POINTS No.1 to 4:- The undisputed facts are that, the complainant availed loan of Rs.90,000/- from the Opposite party with interest at the rate of 14% on flat rate basis to be payable in 24 months at the installment of Rs.4,800/- and the complainant had issued 24 advance cheques for Rs.4,800/- each and the Opposite party had realized 13 cheques. Further, on 14.02.2008 the complainant approached the Opposite party for pre-closure of the loan and the complainant deposited Rs.48,643/-, the Opposite party issued clearance certificate and assured that to destroy the remaining 11 cheques. 9. The contention of the complainant is that he doubted accuracy of the accounts maintained by the Opposite party and he himself made calculation and came to know that the Opposite party has collected excess amount of Rs.5,521/- and thereafter issued a letter to the Opposite party bringing to the notice of the Opposite party about collection of excess amount of Rs.5,521/- and requested for repayment. The complainant has produced Ex.C.1 the copy of the letter and calculation sheet Ex.C.7 on 14.02.2008 and the Opposite party has received the same, but there is no reply at all to the calculation made by the complainant. According to the Opposite party, the complainant was due of 11 installments and totally Rs.52,800/-. But the Opposite party has received only Rs.48,643/- with 4% as pre-closure charges and the complainant was given concession of Rs.4,157/-. Now in the agreement Ex.R.4 produced by the Opposite party, the Condition No.1.11 provides provision for Prepayment. It reads thus; The borrower/guarantor shall not, without the approval of the lender be entitled to prepay the outstanding amount of the loan or any part thereof before the due date. The lender may at its discretion give approval subject to the borrowers fulfilling any terms and conditions as may be stipulated including foreclosure charges as specified by the lender. Clause 10.2 of the agreement also provides for pre-closure. 10. According to the Opposite party it has calculated the pre-closure charge at 4%. The calculation sheet Ex.C.7 is furnished to the Opposite party. As per this calculation out of 13 installments, the principle amount paid is Rs.48,750/- and the remaining amount is Rs.41,250/-, because the every installment includes principal amount of Rs.3,750/- and interest of Rs.1,050/-. So, the balance principal amount is only Rs.41,250/- and the 4% foreclosure comes to Rs.1,650/-. Though the prepayment of the loan is at the discretion of the Opposite party as per the conditions of the agreement and subject to any terms and conditions as may be stipulated including foreclosure charges as specified the lender, what are the terms and conditions for pre-closure is not forthcoming. The Opposite party has not produced any calculation sheet as to how it has calculated and collected Rs.48,643/- instead of Rs.42,900/-. In the absence of any terms and conditions stipulated for the foreclosure, except the foreclosure amount at 4% charge by the Opposite party and when the entire balance loan is paid once, the Opposite party is not entitled to receive excess amount. Therefore, the complainant has proved that the Opposite party has illegally collected excess amount of Rs.5,521/-, though he has collected Rs.5,543/- in excess actually. 11. It is an admitted fact that the loan was cleared on 14.02.2008 and the clearance certificate was issued to the complainant and further as per Ex.C.1 dated 14.02.2008 with calculation was submitted to the Opposite party and inspite of it the Opposite party company at Bangalore has realized the cheque dated 10.03.2008 for Rs.4,800/-. According to the Opposite party, it is by over sight as the Opposite party Branch at Mandya did not inform the settlement of the loan. It cannot be accepted that by over sight, the Branch Office did not inform the Office at Bangalore about the pre-closure of the loan amount and it proves the failure of the Opposite party in discharging the duty properly and even thereafter the Opposite party did not refund the cheque amount of Rs.4,800/- sending by post and only after filing the complaint on 03.04.2008, the Opposite party made up his mind to send the cheque for Rs.4,800/- to the complainant on 20.05.2008. So, the delay in sending the cheque for Rs.4,800/- and further collection of excess amount of Rs.5,521/- amounts to clear deficiency in service. 12. The complainant sought for compensation of Rs.2 lakhs for mental shock, agony and inconvenience. According to the evidence of complainant and his witness CW.2, when they went to give the petition on 14.02.2008 at Mandya Office the Opposite party sent out by threatening them. The Opposite party is not examined, but the Officer of the Bangalore is examined and therefore mere denial cannot be believed. The Financiers cannot use any threat to the borrowers at any circumstances. Under these circumstances, the complainant is entitled to refund excess amount of Rs.5,521/- and also Rs.4,800/- with interest and also compensation. 13. In the result, we proceed to pass the following order; ORDER The complaint is allowed directing the Opposite Party to refund Rs.5,521/- + Rs.4,800/- with interest at 9% p.a. from 14.02.2008 and also to pay compensation of Rs.1,000/- to the complainant within 4 weeks with cost of Rs.500/-. The complainant is entitled to collect the 10 cheques Ex.R.3 produced by the Opposite party before the Forum and Opposite party is directed to collect the cheque Ex.R.2 from the Forum. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 10th day of July 2008). (PRESIDENT) (MEMBER) (MEMBER)
