BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Tuesday the 30th day of September, 2008
C.C.No. 177/07
Between:
H.M.G. Crescent English Medium School, Represented by its Correspondent, B.Md.Rafeeq, S/o. B. Sofi Saheb,
Beside II-Town Police Station, Kurnool. … Complainant
Versus
1. Teja Associates, Represented by its Manager, Francheise of ICICI Bank Limited,
Commercial Vehicle Loans, 2nd Floor, Soma Arcade, Kurnool.
2. J.U.M. Subrahmanyam, Authorized Representative of Teja Associates, Francheise of ICICI Bank Limited,Commercial Vehicle Loans,
2nd Floor, Soma Arcade, Kurnool.
3. The Branch Manager, ICICI Bank Limited,
U-co Plaza, Kurnool.
4. The Manager, ICICI Bank Limited, Commercial Vehicle Loans,
East Wing and 5th Floor, Begumpet, Hyderabad. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate, for the complainant, and Sri.S.Chand Bhasa, Advocate, for the opposite parties 1 and 2 and opposite party No.3 and 4 called absent set exparte and upon perusing the material papers on record, the Forum made the following
ORDER
(As per Smt. C.Preethi, Lady Member)
C.C.No.177/07
1. This consumer complaint of the complainant is filed U/S 11and 12 of C.P.Act, 1986 seeking a direction on opposite parties to pay Rs.1 lakh towards loss suffered by the complainant, Rs.1 lakh towards compensation, Rs.1,000/- towards surveyors fees, to direct to opposite parties to issue necessary forms and no objection for removal of endorsement in the registration certificate or to direct them to release the loan amount, and cost of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainants case is that the complainant is the owner of the vehicles bearing No.AP 24 W 8596 and AP 07 x 2728 and using the said vehicles for the purpose of his educational institutions. In the month of July, 2007 the complainant approached opposite party No.1 and 2 for the purpose of availing loan for said two vehicles and approached opposite party No.3 through opposite party No.2 and an application for loan, for sanction of Rs. 5 lakhs was submited to opposite party No.3 for both vehicles and the complainant agreed to hypothecate his two vehicles infavour of opposite party No.4 . The opposite party No.2 agreed for the same obtained signatures on hypothecation agreement and on form 34,35, and 36 and also obtained blank cheques from the complainant. The complainant also submitted RC of both the vehicles and other relevant documents towards collateral security as required. After verification the opposite party No.2 and 3 appointed a surveyor to assess the value of the two vehicles and the surveyor assessed the value of the vehicle bearing No. AP 07 x 2728 as Rs.1,50,000/- and vehicle bearing No. AP 24 W 8596 as Rs.4,50,000/- and the complainant paid Rs.1,000/- to the insurance surveyor. Thereafter, the opposite party No.2 promised to arrange the loan within three days and retained the original RCs of both vehicles and promised to return them after making an endorsement of opposite party No.4 along with bank draft of Rs. 5 lakhs as loan of the complainant is sanctioned. Thereafter , the complainant approached several times the opposite parties 1 and 2 for loan amount there was no response and inspite of completion of all formalities the said loan was not released. On 11-10-2007 the complainant got issued legal notice to opposite parties 2 and 4 with a request to release loan of Rs.5 lakhs but there was no response. On 4-10-2007 the opposite parties made an endorsement of opposite party No.4 in the RCs without releasing the loan amount. It further submits that the opposite parties have no right to make an endorsement of opposite party No.4 as financier in the RCs of both vehicles of the complainant , due to said endorsement the complainant could not sale his vehicle nor obtained loan from any other bank. Because of infair trade practice of opposite parties the complainants suffered mental agony and resorted to the forum for reliefs.
3. In support of his case the complainant relied on the following documents viz., (1) attested copy of certificate of registration of vehicle bearing No. AP07 x 2728 , (2) attested copy of certificate of registration of vehicle bearing No. AP 24 W 8596 , (3) attested Xerox copy of insurance policy No.620601/31/ 06/1/00004724 , (4) attested copy of certificate of registration of vehicle No. 0G/ 08/ 1806 / 1812/ 00000013 and (5) office copy of legal notice dated 11-10-2007 , besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 to A5 for its appreciation in this case and replies to the interrogatories exchanged.
4. In pursuance to the notice of this forum as to this case of the complainant the opposite parties 1 and 2 appeared through their standing counsel and contested the case by filling written version of opposite party No.2 and adoption memo of opposite party No.1 . The opposite parties 3 and 4 remains absent through out the case proceedings.
5. The written version of opposite parties 1 and 2 submits that they are only to process the loan application ,accordingly complainants loan application was also processed at the instance and instructions of opposite party No.3 and 4 . The loan papers given to the complainant, who after going through filled up the forms and forms No.34,35 and 36 and put his signatures. Thereafter, the opposite party No.2 processed the forms submitted by the complainant and were submitted to opposite party No.3 and 4 for consideration and opposite party No.1 and 2 has nothing to do with sanction of loan and their job is to receive the loan application , getting them filled and to see the loan application is submit to opposite parties 3 and 4 in proper proforma , after submission of loan application it is for the opposite parties 3 and 4 either to sanction the loan or to reject the loan application and this opposite parties 1 and 2 have absolutely no role in sanction of loan. On 1-10-2007 the complainant issued a legal notice and sending the said notice the opposite parties seems not to sanction the loan to the complainant and thereafter there were sittings of complainant and opposite parties and they came to a settlement deed which was prepare by both parties and signed by them and as per the said settlement, the complainant received all the documents submitted, duly endorsed receipt of all documents . It lastly submits that the opposite parties 3 and 4, with regard to the policy issued to the said vehicle where in, the policy of the vehicle is standing in the name of M/s. Noble Public School , Guntur where as in Rc it is mentioned as van only, and stood in the name of complainants school, so when clarification is sought the complainant became arrogant and issued the legal notice and in hurry of getting loan from opposite parties 3 and 4, the complainant himself got endorsement of financier in his RC books. When the loan transaction was closed all the clearance certificates were given to the complainant , showing the complainant did not owe any amount to opposite parties 3 and 4 as no loan was raised. It also further submits that to grant loan or no to grant loan is the discretion by the bank and submits that there is no deficiency of service on their part and seeks for the dismissal of complaint with exemplary cost of Rs.50,000/-.
6. In support of their case the opposite parties 1 and 2 relied on the following documents viz., (1) terms of settlement dated 13-10-2007 ,(2) office copy of letter dated 19-10-2007of complainant to opposite party No.2 , (3) letter dated 16-10-2007 of opposite party No.4 to 3 bearing endorsement of complainant, (4) letter dated 16-10-2007 of opposite party No.4 to 3 bearing endorsement of complainant , (5) notice of termination of agreement of hire purchase , (6) notice of termination of agreement of hire purchase , besides to the sworn affidavit of opposite party No.2 in reiteration of his written version averments and the above documents are marked as Ex. B1 to B6 for its appreciation in this case and replies to the interrogatories exchanged .
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service ?.
- It is the case of the complainant that in the month of July, 2007 he approached opposite parties 1 to 4 for availment of loan of Rs.5,00,000/- to his two vehicles. The opposite parties 1 to 4 agreed to the said loan on hypothecation of two vehicles by the complainant and the opposite parties have taken RCs of two vehicles and signatures of complainant on hypothecation agreement and in forms 34,35, and 36 and also received six blank cheques. Thereafter, there was no response from the opposite parties inspite of several approaches by the complainant. The opposite parties did not release the loan amount even though all the formalities are completed, but on 4-10-2007 the opposite parties made an endorsement of opposite party N.4 as a hirer to the said vehicles in RCs vide Ex.A1 & A2 without releasing the loan amount to the complainant. Thereafter, on 11-10-2007 the complainant got issued legal notice dated 11-10-2007 vide Ex.A5 even though the opposite parties received the said notice did not reply. On the other side the opposite parties 1 and 2 who are the contesting parties in their written version submitted that they are only to process the loan applications on the instructions of opposite parties 3 and 4 and sanctioning of loan or not in the discretion of opposite parties 3 and 4 it has nothing to do regarding the non sanction of complainants loan by opposite parties 3 &4 but brought on record Ex.B1 to B6. It further submitted that the opposite parties 3 & 4 did not sanction loan to the complainant, but in Ex.A1 & A2 RCs of the complainants vehicles there is an endorsement of opposite party No.4 as hirer to the vehicles of the complainant. The written version of opposite party No.1 & 2 submits that the complainant himself got the said endorsement ,there is no merit and force in the said contention as per Law it is for the hirer who has to get the endorsement in the RCs and not the owner of the vehicle. Hence, from the above it is clear that the opposite parties though no loan amount is sanctioned got their endorsement in the RCs of the complainants vehicles which amounts to clear deficiency of service on part of opposite parties.
9. The opposite parties 1 & 2 further submitted that the opposite parties and the complainant have come to a settlement vide Ex.B1. The Ex.B1 is the terms of settlement between the complainant and opposite party No.2 where in it was agreed to return all the documents and cheques received by opposite arties and also see that the hypothecation endorsement cancelled in RC books of the complainants vehicles , the Ex.B2 is the letter addressed to complainant on the letter head of opposite party No.2 and it was signed by complainant on 19-10-2007 , the Ex.B2 was addressed to complainant and signed by complainant , hence this document cannot be looked into. Ex.B3 & B4 are the letters dated 16-10-2007 of opposite party No.3 addressed to the Registering Authority , Kurnool informing no objection for termination of an agreement of hypothecation for vehicle No. AP 24 W 8596 & vehicle No. AP 07 x 2728 . Ex.B5 & B6 are the form 35 issued by opposite party No.3 as to the termination of an agreement of hire purchase. The Ex. B3 to B6 are the documents issued by opposite party No.3 and all these exhibits copies are given to the complainant, by opposite parties 1 and 2 but the opposite parties 1 and 2 in this case submitted that they are only to process the applications and submitted to the opposite parties 3 & 4 for availing loans . When its duty is only to process the applications, then how did they file into case record the Ex.B3 to B6. There is no averment as how they received these documents in their written version averments, hence from the above it is clear that the contention of opposite parties 1 & 2 that they are only to process the application is not corrected and there are performing the duty of banker also. The Ex.B3 to B6 shows that no objection and notice of termination of hire agreement copies were handed over to the complainant, but as per Ex.B1 it is for the opposite parties 1 to 4 to get the cancellation of hypothecation endorsement in RCs of two vehicles of the complainant, because it is the opposite parties 1 to 4 who got the endorsement in the two RCs of the complainant , hence it is the duty of opposite parties 1 to 4 to get it cancelled and in not doing so there is deficiency of service on their part.
10. In this case the complainant approached opposite parties for availment of loan the facts and evidence referred above clearly establish that the opposite parties had under taken to perform the services by providing facilities in connection with finance. The complainant approached the opposite parties for hiring its services for a consideration in the nature of interest. The opposite parties have agreed to provide the service to the complainant, therefore there is no doubt that the complainant is a consumer within the meaning of Act having hired the services of Bank for a consideration. But subsequently , the opposite parties refused to perform the services which it had under taken to perform, there by resulting in fault in the performance of the services. Thus, the services which the opposite party has under taken to perform suffered from deficiency . In this case no direction can be given to the bank to advance loan to the complainant, such relief is not contemplated even U/S 14 of the Act, but due to the deficiency in the services, the complainant had suffered both monterily as well as mentally and that suffered was caused to him solely due to the negligence on part of opposite parties and the complainant relied on the decision of our State Commission reported in I ( 1991) CPJ Pg.362 between State Bank of India Vs. Shri Baili Lingam . Where in it was held that when a bank committed default in performing banking services in advancing a promised loan to complainant, the forum cannot direct it to advance the loan to the complainant , the proper direction is to direct the bank to pay compensation to the complainant arising from said deficiency in its services.
11. To sum up, there is clear deficiency in service on part of opposite parties 1 to 4 in getting hypothecation endorsement in the two RCs of the complainant without release of the loan and also not getting the said endorsement cancelled. As there is no material placed by the opposite parties that the said endorsement was cancelled by Registering Authority , in the absence of any material it cannot be said that the endorsement was cancelled. Hence, relying on the above cited decision & discussions made above, the complainant is certainly remaining entitled to compensation of Rs.10,000/- for suffered mental agony and Rs. 2,000/- as costs as the opposite parties driven the complainant to the forum for relief.
12. In the result, the complaint is allowed directing the opposite parties 1 to 4 jointly and severally to get the hypothecation endorsement cancelled in the two RCs of the complainant and to pay to the complainant Rs.10,000/- as compensation for suffered mental agony and Rs.2,000/- as costs of this case within one month from the date of receipt of this order. In default, the opposite parties 1 to 4 jointly and severally liable to pay the supra award with 12% interest from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 30th day of September, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Attested Xerox copy of certificate of registration of
Vehicle No. AP 07 x 2728.
Ex.A2. Attested Xerox copy of certificate of registration of vehicle
No. AP 24 W 8596.
Ex.A3. Attested Xerox copy of insurance policy No. 620601 / 31/
06/01/ 00004724.
Ex.A4. Attested Xerox copy of Insurance policy No. 0G -08-
1806 -1812 – 00000013.
Ex.A5. Office copy of legal notice, dated 11-10-2007.
List of exhibits marked for the opposite parties:
Ex.B1. Terms of settlement, dated 13-10-2007.
Ex.B2. Office copy of letter, dated 19-10-2007 of complainant to opposite party No.2.
Ex.B3. Letter, dated 16-10-2007 of OP.No.4 to OP.No.3 bearing
endorsement of complainant.
Ex.B4. Letter, dated 16-10-2007 of OP.No.4 to OP.No.3 bearing
endorsement of complainant.
Ex.B5. Notice of termination of agreement of hire purchase.
Ex.B6. Notice of termination of agreement of hire purchase.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
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