BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 359/2009 Filed on 22/12/2009

Dated: 27..08..2012

Complainants:

1. Sureshkumar. K., S/o Krishna Panicker, Vadakkumkara Puthen Veedu, Vencode, Kunnathukal Village, Neyyattinkara, Thiruvananthapuram.

2. Shibu. K., S/o Kunjumon, Madahikkonam, Monnu Cent Michabhoomi, Kulathuppuzha, Pathanapuram, Kollam.

(By Adv. Rajeev. S.S.)

Opposite parties:

1. Shriram Transport Finance Company Ltd., Represented by its Franchisee, M/s. Tara Auto Finance, Having its corporate office at No.6, Bommulier Street, Sowcarpet, Chennai, Tamil Nadu – 600 079.

2. Krishna Auto Consulting & Finance Agent, TB Junction, Neyyattinkara, Thiruvananthapuram. Represented by its Proprietor, K.S. Anil Kumar.

(By Adv. N.B. Padmakumar)

This O.P having been heard on 16..08..2012, the Forum on 27..08..2012 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, 1^st complainant had purchased a Maruti Car of 800 cubic capacity bearing Reg. No: KL-04/H9867 from one Shibu, the original owner, that 1^st complainant had availed a cash credit facility from the 1^st opposite party, Shriram Transport Finance Company Ltd., represented by its Franchisee, M/s. Tara Auto Finance, Chennai through the 2^nd opposite party, Krishna Auto Consulting & Finance Agent, Neyyattinkara on 26/2/2007, to the tune of Rs. 75,000/- and had agreed to pay the same along with interest @ 15% in 30 equal installments of Rs. 3,700/- each, that 2^nd complainant had offered himself as a guarantor to the transaction by offering two signed cheques numbered 0722651 & 0722653 drawn on the Vellarada Branch of the Vijaya Bank, without endorsing any amount or date on the same, as security to the transaction, that consequent the transfer of the said vehicle in favour of the 1^st complainant and the hypothecation of the scheduled vehicle was endorsed in the registration certificate, that 1^st opposite party chose to retain the original registration certificate of the vehicle and duplicate of the key of the said vehicle, that complainant had been repaying the loan amount as per the agreement with the 2^nd opposite party till the 25^th installment of the said loan, that 2^nd opposite party had been issuing receipts acknowledging the receipt of the same and had endorsed the remittances made by the 1^st complainant on a ledger card issued on behalf of the 1^st opposite party, that 1^st complainant had already paid up Rs. 92,500/- till 21/6/2009, that as per the calculations of the complainants, Rs. 18,500/- is only due to the opposite party as on 26/3/2009 by virtue of the remaining 5 installments, that complainants were served with a lawyer's notice dated 10/3/2009 by the 1^st opposite party informing them that they have paid only 9 monthly installments so far and have defaulted payment of 24 installments and called upon the complainants to pay Rs. 55,500/- towards the defaulted amount along with outgoing expenses and other charges, that on enquiry with 2^nd opposite party it was made clear that 2^nd opposite party had promptly transferred the remittances made by the complainants in favour of the 1^st opposite party, that on enquiry with 1^st opposite party through one of the relatives of the 2^nd complainant settled at Chennai it was made clear that 1^st opposite party has not received the amount remitted by the 1^st complainant with the 2^nd opposite party, that 1^st opposite party did not bother to clarify the discrepancies and contradictions in the said demand notice, regarding the number of defaulted installments and the amount fallen due on the part of the complainants, despite repeated queries by the relatives of the complainant, that complainant had requested the 1^st opposite party to furnish the accounts of the transaction which was turned down by the 1^st opposite party, that opposite parties had committed unfair trade practice and deficiency in service. Hence this complaint to direct opposite parties to desist from continuing the unfair trade practice and to accept the sum of Rs. 18,500/- towards the remaining 5 installments defaulted by the complainants along with due interest, if any, on the same and to release the original registration book and duplicate key of the vehicle to the complainant along with compensation and cost.

2. 1^st opposite party has not turned up despite service of notice from this Forum, nor has 1^st opposite party filed version. Hence 1^st opposite party remains exparte.

3. 2^nd opposite party filed version contending inter alia that the complaint is not maintainable either in law or on facts, that 1^st complainant had availed the cash credit facility from the 1^st opposite party directly and 1^st opposite party entrusted the 2^nd opposite party to collect the installments paid by the complainant, that complainant has to remit the installment within a specified time and on default, he is liable to pay penal interest, that the terms and conditions of the 1^st opposite party is binding upon the complainants, that 1^st complainant was not prompt and regualr in paying the installments and he had paid only 9 installments all through these years and the amount so paid by him has been duly remitted to the 1^st opposite party, that the averment that 1^st complainant had been repaying the loan amount as per the agreement with the 2^nd opposite party till 25^th installment and 2^nd opposite party had issued receipt and endorsed the remittance on a ledger card are all devoid of truth, that huge amount is due towards 1^st complainant repayment, that there is no latches or negligence on the part of the 2^nd opposite party, that no sort of unfair trade practice has been done by the 2^nd opposite party as alleged. Hence 2^nd opposite party prayed for dismissal of the complaint.

4. The points that arise for consideration are:

1. Whether there is unfair trade practice and deficiency in service on the part of opposite parties?

2. Whether the complainants are entitled to any reliefs as prayed in the complaint?

In support of the complaint, 1^st complainant has filed proof affidavit and has marked Exts. P1 to P3. 2^nd opposite party has not filed proof affidavit or any documents.

5. Points (i) & (ii): The very case of the complainant is that he had availed a loan of Rs. 75,000/- from the 1^st opposite party through the 2^nd opposite party on 26/02/2007 on the condition that 1^st complainant has to repay the same along with interest @ 15% in 30 equal installments of Rs. 3700/-. It has been contended by the 1^st complainant that 1^st opposite party chose to retain the original registration certificate of the vehicle and duplicate of the key of the said vehicle. It has also been the case of the complainant that he had been repaying the loan amount as per the agreement with the 2^nd opposite party till the 25^th installment of the said loan and 2^nd opposite party had issued receipts acknowledging the receipt of the same and had endorsed the remittances made by the 1^st complainant on a ledger card issued on behalf of the 1^st opposite party. According to complainants, 1^st complainant had already paid of Rs. 92,500/- till 2/6/2009 and Rs. 18,500/- is only due to the opposite party as on 26/3/2009 by virtue of the remaining 5 installments. It has also been the case of the complainant that 1^st opposite party had sent a lawyer's notice dated 10/3/2009 informing him that he had paid only 9 monthly installments so far and has defaulted payment of 24 installments and called upon the 1^st complainant to pay Rs. 55,500/- towards the defaulted amount along with outgoing expenses and other charges. Complainants' evidence consisted of the oral testimony of the 1^st complainant and Exts. P1 to P3. Ext. P1 is the original ledger card issued on behalf of the 1^st opposite party. A perusal of Ext. P1 reveals that complainant had remitted 25 EMIs till 2/06/2009. It is to be noted from Ext. P1 that 1^st complainant was regular in paying EMIs from 26/03/2007 to 26/07/2007. The 6^th installment was due on 26/08/2007 but which was paid only on 4/09/2007 thereby there was some delay in the payment of the 6^th installment. 7^th installment was due on 26/9/2007 which was paid on 2/10/2007, 8^th installment was due on 26/10/2007 which was paid on 30/10/2007. Altogether complainant had remitted 25 installments from 10^th installment onwards around one month delay in every installment repayment. This continued till 21^st installment, 22^nd installment was due on 26/12/2008 which was remitted on 27/02/2009, 23^rd installment was due on 26/01/2009 which was remitted on 27/03/2009. Similarly, EMI which was due on 26/02/2009 was remitted on 1/05/2009, 25^th installment was due on 26/03/2009 but remitted only on 2/6/2009. On going through the ledger card showing remittance endorsed by the 2^nd opposite party it is seen that complainant had committed one month delay in repaying monthly installments especially from 10^th installment onwards. Ext. P2 is the Advocate notice issued by the 1^st opposite party calling upon the complainant to pay Rs. 55,500/- towards outstanding hire installments upto 10/03/2009 exclusive of additional hire charges and other expenses. Ext. P3 series are the original receipts issued by 2^nd opposite party towards vehicle No. KL-04 H 9867. Ext. P3 series consist of 25 receipts issued by 2^nd opposite party which are tallying with the endorsement made by 2^nd opposite party in the ledger card (Ext. P1) issued on behalf of the 1^st opposite party. 1^st complainant has been cross examined by the 2^nd opposite party. In his cross examination by 2^nd opposite party, 1^st complainant has deposed that the loan amount has been Rs. 75,000/-, EMI amount has been Rs. 37,000/- and number of installments is 30. 1^st complainant has admitted that there was some delay in remittance of EMI. 1^st complainant has also deposed that delay has happened in 2 – 4 installments. 1^st complainant denied the suggestion put by the 2^nd opposite party that there is provision for collection of penal interest on defaulted amount. 1^st complainant denied the suggestion put by the 2^nd opposite party that he has paid only 9 installments to 2^nd opposite party. 1^st opposite party remained exparte. The loan was given by 1^st opposite party through 2^nd opposite party. 1^st opposite party has never furnished the loan agreement and its terms and conditions. The copy of the said agreement is not available with the 1^st complainant, even the 2^nd opposite party has not filed proof affidavit nor has 2^nd opposite party produced any documents. Complainant has produced Exts. P1 to P3 series. Evidently, by Exts. P1 & P3 complainant had remitted 25 installments. It is to be noted that the 25^th installment which was drawn on 26/03/2009, but the 25^th installment was remitted on 2/6/2009. In view of the evidence available on records, we are of the view that the Ext. P1 ledger card issued by 1^st opposite party would disclose that the agreement date was on 26/2/2007, total amount to be recovered from the loanee is Rs. 1,11,000/- out of which 1^st complainant had remitted 25 installments which comes towards Rs. 92,500/-. Admittedly, there was around one month delay in payment of every installment, especially from the 10^th installment onwards. No documents furnished by opposite parties to claim penal interest, if any, on defaulted payment. In this case, from 10^th installment onwards 1^st complainant has committed one month delay in payment of EMIs. Evidently, by Exts. P1 & P3 series 5 EMIs worth Rs. 18,500/- is due to the opposite party. Opposite party is entitled to get the said amount also. Since neither the statement of account regarding the loan transaction nor the terms of agreement are furnished by opposite parties nor 1^st opposite party being contested the case of the complainant we find there is force in the argument of the complainant that opposite party is entitled to get the sum of Rs. 18,500/- towards remaining 5 installments. Ext. P2 notice never tallies with the contents of Exts. P1 & P3 series. Along with Ext. P3 no calculation statement was attached. Opposite party and complainant are bound to follow the conditions of the agreement if any. Herein, no such conditions are forwarded by the opposite parties nor challenged the case of the complainant by the 1^st opposite party. In the absence of any document in support of Ext. P2 legal notice opposite party cannot claim any amount at their will and interest. The act of the opposite party claiming exhorbitant amount by Ext. P2 without supporting documents amounts to unfair trade practice and deficiency in service. Admittedly, complainant has committed some delay in payment of installments to the 1^st opposite party through the 2^nd opposite party. Evidently by Ext. P1 complainant had remitted 25 installments to the 1^st opposite party through the 2^nd opposite party. There is no material on record to cast doubt on the receipts issued by the 2^nd opposite party to complainant or the endorsement of receipt made on Ext. P1 register by the 2^nd opposite party on behalf of the 1^st opposite party. In view of the foregoing discussion and evidence available on record we deem that justice will be well met if complainant is directed to pay Rs. 18,500/- towards the remaining 5 EMIS with 9% interest thereon from 26/3/2009 to the 1^st opposite party.

In the result, complaint is partly allowed. 1^st complainant shall pay the 1^st opposite party a sum of Rs. 18,500/- with 9% interest thereon from 26/3/2009. 1^st opposite party shall accept the said amount. On acceptance of the said amount 1^st opposite party shall release the original registration book and duplicate key of the vehicle to the 1^st complainant in connection with loan transaction to KL-04 H 9867. In facts and circumstances of the case there will be no order as to compenstion and cost.

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 27^th day of August, 2012.

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G. SIVAPRASAD,

PRESIDENT.

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BEENA KUMARI .A,

MEMBER.

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S.K. SREELA,

ad. MEMBER .

C.C.No: 359/2009

APPENDIX

I. Complainants' documents:

P1 : Original ledger card issued on behalf of the 1^st opposite party

P2 : Advocate notice issued by the 1^st opposite party dated 10/3/2009

P3 : Series are the original receipts issued by 2^nd opposite party towards vehicle No: KL-04 H 9867.

II. Complainants' witness:

PW1 : Suresh Kumar. K

III. Opposite parties' documents : NIL

IV. Opposite parties witness : NIL

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PRESIDENT