KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.282/12
JUDGMENT DATED 8.11.2012
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
Prakash Joseph,
S/o Joseph, Tharayil House,
Vaduvanchal Post, -- APPELLANT
Ambalavayal, Wayanad.
(By Adv.Celine Joseph)
Vs.
1. M/s.Tata Motor Finance,
6/1167, 3rd Floor, Arafa Complex,
Cherooty Road, Calicut- 673032. -- RESPONDENTS
2. The Regional Transport Officer,
Regional Transport Office,
Kalpetta, Wayanad.
JUDGMENT
SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER
The appellant was the complainant in CC.No.14/11 in the CDRF Wayanad, Kalpetta. The complainant purchased a stage carriage bearing registration No. KL 12 D 4140 with the financial assistance of the first opposite party. It is alleged that as security for the transaction, the complainant gave 30 blank and signed cheques and 2 stamp papers. The complainant had to repay the loan amount of Rs.8,40,000/- in 45 monthly instalments, the first instalment being Rs.26,250/- and the remaining instalments Rs.25,950/- each. In addition, the complainant paid documentation charges of Rs.4,000/-. He punctually remitted the instalments due to the first opposite party. But the first opposite party sent notices demanding excess amount as overdue interest and other charges, The complainant paid more than Rs.7,00,000/-. At the time of availing the loan, the first opposite party assured that till the delivery of the vehicle, the amount would be free from interest but the first opposite party failed to keep the assurance. As per the repayment schedule, repayment was to begin from 2.9.08 onwards. The first opposite party claimed interest for the initial period also contrary to the assurance given. The first opposite party found one reason or another to extract huge amount from the complainant. As a result, the complainant had to pay an excess amount of Rs.50,000/-. Even then the first opposite party failed to close the account. Hence the complaint.
2. The first opposite party filed version and contended before the forum that the complainant was a chronic defaulter in repaying the loan. Of the total 46 EMI, repayments were not done in time in majority of EMIs. The complainant remitted partly and out of time about 30 instalments as per the chart. The total repayments made by the complainant in and out of time is Rs.7,02,748/-. The balance amount payable by the complainant as on 3.3.11 is Rs.1,02,002/- and audit charge of Rs.34,320/-. As per the agreement executed at the time of hire purchase, the complainant is bound to pay interest for the defaulted payments. The cheques issued by the complainant towards repayment of the loan instalments were dishonored in all the instances due to insufficiency of funds in his accounts. The agreement executed empowered the first opposite party to charge Rs.400/ for each dishonored cheque. The first opposite party is entitled to claim additional charges for every notice sent. The questions raised by the complainant are complex questions which can be decided by a Civil Court only. The loan availed by the complainant is Rs.8,40,000/-. The complainant had to pay Rs.60,000/- towards insurance and financial charges. The opposite party is entitled to realize overdue charges. The complainant had agreed to pay interest at the rate of 8.75 % per annum. He purchased the vehicle for commercial purpose. The claim for overdue charges would come to Rs.1,36,322/-. There was no deficiency in service on the part of the first opposite party. The complaint does not fall within the purview of the Consumer Protection Act.
3. The second opposite party filed version stating that no application was filed by the financier to cancel hypothecation endorsement. Hence the complaint was liable to be dismissed.
4. Before the CDRF, Wayanad, the complainant was examined as PW1. Exts.A1 to A5 series were marked on the side of the complainant. One witness was examined on the side of the first opposite party. Exts.B1 to B11 were marked on the side of the first opposite party.
5. The Forum partly allowed the complaint and directed the first opposite party to consider Rs.1 lakh as the amount due on 3.3.11 and that future instalments were liable to be paid by the complainant. On receipt of future instalments and the amount due as on 3.3.11 the first opposite party was directed to give no objection certificate to the complainant after closing the liability. No other relief was granted. The complainant has preferred this appeal contending that his complaint has to be allowed in toto.
6. The only question that arises for consideration is whether on the facts alleged and proved any deficiency in service can be found on the part of the first opposite party and whether the appellant is entitled to succeed in the appeal.
7. Admittedly, the complainant/appellant availed a loan of Rs.8,40,000/- from the first opposite party and purchased stage carriage bearing Registration No. KL 12 D 4140. The loan was repayable in 45 monthly instalments starting from 2.9.08. As per the allegations in the complaint repayment of Rs.7 lakhs was made in various instalmens. According to the first opposite party, the actual repayment made in and out of time was Rs.7,02,748/-. It is the definite contention of the first opposite party that most of the instalments were paid out of time. Most of the cheques issued by the appellant were dishonored on presentation, for want of funds. The terms and conditions of the loan are not disputed. The forum itself found that as on 3.3.11 an amount of Rs.1 lakh was outstanding towards the loan instalments due to the first opposite party and the complainant was liable to pay future instalments also. The direction to close liability was given on the basis of the above conclusions. There is absolutely no finding to the effect that there was deficiency in service on the part of the opposite party and no compensation was allowed. It is in the above background, the complainant sought the following reliefs: (i) not to seize the vehicle till the disposal of the complaint (2) to give compensation of Rs.50,000/- for the deficiency in service on the part of the opposite party (3) to return Rs.50,000/- allegedly collected illegally from the complainant (4) to give direction to the first opposite party to issue loan clearance certificate if the loan is closed and on their failure to give direction to the second opposite party to remove loan endorsement in the RC book of the vehicle and (5) to pay cost to the complainant.
8. It is pertinent to notice that the transaction between the appellant and the first opposite party was one of loan transaction. Deficiency in service on the part of the first opposite party is alleged. According to the complainant an amount of Rs.50,000/- was illegally collected from the complainant. On the very allegations in the complaint the loan amount was Rs.8,40,000/- and only Rs.7,02,748/- was remitted by the appellant. If that be so, even the loan instalments were not repaid in full, though the period for repayment has expired. There is absolutely nothing to indicate that any other amount was paid by the complainant. As per the agreement, the first opposite party was entitled to collect overdue interest and other charges. What the forum did was to settle accounts between the appellant and the first opposite party for which it had no jurisdiction. On the very fact that amounts are still due from the appellant to the first opposite party deficiency in service on the part of the first opposite party cannot be found. There is absolutely nothing to indicate that any amount was illegally collected from the complainant. Under the above circumstances, the forum really erred in passing the order referred to. However since the first opposite party has not filed any appeal I am not interfering with the directions of the CDRF, Wayanad. For the very same reasons already mentioned the appeal is devoid of merit and is therefore liable to be dismissed.
In the result, the appeal fails and is accordingly dismissed with costs of Rs.5000/- to the first opposite party.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
