D.o.F:08/04/2010

D.o.O:4/5/2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                          CC 85/2010

                     Dated this, the 4th   day of May 2011

PRESENT:

SRI.K.T.SIDHIQ                                : PRESIDENT

SMT.P.RAMADEVI                        : MEMBER

SMT.BEENA.K.G                        : MEMBER 

Ampa Nayak,

S/o late Narayana Nayak,

Businessman, R/at Naikap

, Kumbla , Koipady,Kasaragod.                                             : Complainant

(Adv.Sadananda Kamath, Kasaragod)

TATA Motors Finance Ltd,

Kannur Branch, Opp. Ramananda Oil Mills,                      : Opposite party

South Bazar,Kannur.

(Adv.M.Preman,Kannur)

                                                          ORDER

SRI.K.T.SIDHIQ        : PRESIDENT

           Bereft of unnecessaries the case of the complainant is that opposite party refused to issue No objection certificate and loan clearance  letter demanding overdue charges inspite of payment of entire instalments in due time.  According to him he issued 47 post dated cheques towards the discharge of  monthly instalment and arranged sufficient amount in his account to honor the cheques.  But opposite party was irregular in presenting the cheques for which he is not liable.

2.       According to opposite party complainant availed a loan for purchasing a SFC Truck after executing an agreement with opposite party.  As per the agreement in case of dispute the matter shall be referred to an arbitrator for proper adjudication.  Hence complaint is liable to be dismissed and the complainant was highly irregular in repaying the instalments.  Therefore he is liable to pay overdue interest .  As on 12/5/10  he is liable to pay ` 17084/- towards  overdue instalments ` 18334/-  being the overdue  charges and  ` 700/- being other charges.  Hence he is not entitled to get  No objection  certificate  on loan clearance letter pertaining to his vehicle.

3.     Complainant filed proof  affidavit in support of his case.  Exts. A1 to A7  marked .  On the side of opposite party Exts.B1 & B2 marked.  Both sides heard.

4.   The issues to be settled in this case are

        1. Whether the complaint is maintainable in view of the agreement executed by the      

           complainant that contain arbitration clause?

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

         3. What order as o relief and costs?

5.  Point No.1:  The opposite party in their version has taken a contention that the complaint is not maintainable in view of the arbitration clause contained in the agreement executed by the complainant.    According to them, as per clause 25 of the agreement in the event of any dispute, the matter shall be referred to for adjudication to an arbitrator.  But we are unable to accept the contention mainly on 2 grounds.  Firstly, the opposite parties has received in the notice under sec.13 of the Consumer Protection Act from the Forum and they have no case that the dispute herein is not a consumer dispute.  So in view of Sec.3 of the C.P.Act the provision of Consumer Protection Act shall be in addition to and not in derogation of the provisions of the any other law for the time being in force.  Therefore the opposite party should acquiesce to the jurisdiction of the Consumer Forum.  

      2ndly  the Hon’ble Supreme Court in the case Skypak Couriers  Vs Tata Chemicals Ltd has held that  the existence of an arbitration clause will not be  a bar to the entertainment of a complaint by the redressal agency constituted under the C.P.Act. Therefore, this point is found against the opposite party and the complaint is maintainable before the Forum.

6.  Point No.2: The definite case of the complainant is that towards the repayment of the monthly installments he has submitted 47 signed blanked cheque in advance with the opposite party and has always kept sufficient fund in the account maintained by him in State Bank of Mysore Kasaragod branch.  But the opposite party was quite irregular and negligent in presenting the cheques which aggravated the additional finance charges calculated by the opposite parties.  Complainant produced Exts.A1 to A7 to substantiate his case.  ExtA4 is the statement of account issued by the opposite party to the complainant in which a sum of ` 8657.09 is calculated as overdue charges and a sum of  ` 19264.98 is shown as overdue installment.   This would show that complaint is liable to pay one more installment to the opposite party.  But the calculation of overdue interest is against the law of appropriation of interest.  As per law of appropriation interest when an amount carries interest and overdue interest the remittances ought to have been first adjusted towards the overdue interest then to interest and the balance is toward principal amounts.  But Ext A4 shows  a different mode of calculation as per that an overdue interest for 1316 days has been calculated as on the date of preparation of Ext.B1 (A4).  That is repugnant to law.   So the complaint is not at all liable to pay the additional finance charges.   Ext.A7 is the statement of account of State Bank of Mysore Kasaragod branch where the complainant  maintains his account.  As per that it is seen that complainant was always keeping sufficient amount in his account to honour the cheques issued by him.   As argued by the learned counsel for complainant Sri.Sadananda Kamath it was the opposite party who committed default in presenting the cheques issued by the complainant.  Therefore we hold that complainant is not  liable to pay  any installment due to opposite party .  Hence opposite party committed deficiency in their service and they are liable under Consumer Protection Act.

7. Point No.3:  The prayer of the complainant is to issue hypothecation clearance certificate in respect of his vehicle bearing Reg.No.KL-14/3032 and also to pay sum of  ` 10,000 as compensation for the deficiency in service, mental stress and agony together with cost of the proceedings.

  In the circumstances we direct the  opposite party  to  issue HP termination letter and no objection certificate pertaining to the vehicle bearing Reg.No. KL 14/3032 within one month from the date of receipt of copy of  order.  Opposite party also liable to pay ` 3000/- towards the cost of these proceedings. .  If the opposite party commits default in issuing the HP termination letter and no objection certificate as stipulated above then they will be further liable to pay a sum of ` 5,000/- as compensation.   Further on application by the complainant necessary direction will be issued to the concerned registering authority to cancel the HP endorsement made in favor of the opposite party from the  RC of the vehicle  bearing Reg.No KL 14/ 3032.

Exts:

A1-copy of repayment schedule

A2-15/1/2010- copy of lawyer notice

A3-postal acknowledgment

A4- Contract details

A5- notice of arbitration proceedings

A6-  20/7/2010-reply notice

A7- statement of account

B1- Contract details

B2- Termination  details

MEMBER                                       MEMBER                                     PRESIDENT

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