O R D E R
(By Sri Ganesh Jadhav, President)
- This is a complaint filed under Section 12 of Consumer Protection Act, 1986 alleging in brief are as under:
2. The complainant is driver and owner living on bus No. AP 01 X 2008 which was financed by the Opposite Party to the tune of Rs. 5,00,000/- through HP agreement No. NIZA-30003180003 and that the said loan amount was to be repaid in 45 equal installments @ Rs. 18,000/- per month. The complainant repaid an amount of Rs. 2,18,900/- by the date of this complaint. The personnel of Opposite Party though received the amount but for some of the installments they have not issued the receipts on the pretext of issuance of receipt later. Further no copy of such agreement is supplied to him by the Opposite Party. Further it is alleged that though the payments received by the Opposite Party, they had adjusted the same towards heavily charged penal interest, overdue charges which is not mentioned in the agreement nor informed the complainant at the time of loan. Though amount was paid in time the amount of installments were adjusted for the ODC charges without any intimation to the complainant. Without any responsibility the opposite party demanded to the complainant for Rs. 7,00,000/- by dt: 18-11-2011 towards ODC penal amount even after clearing the due of loan. Further it is alleged that due to Telangana Bandh the bus could not run for a period of 3 months and he could not pay the installments as the bus was made road off. The complainant paid an amount of Rs. 7,00,000/- to the OP during Bandh but only with a view to harass complainant the OP did not credited the said amount to the account. The complainant invested his own amount for repairs but the OP is trying to seize the bus to harass the complainant. At any cost it is not proper and accountable to demand such huge amount. At the time of loan Opposite Party paid only Rs. 4,39,500/- to the complainant instead of Rs. 5,00,000/-. On crediting the said amount the complainant is not due of installments as Rs. 60,500/- is in advance with OP.
It is further alleged that on 19-11-2011 when the complainant approached the Opposite Party to clear the loan account but shockingly the OP demanded for Rs. 7,00,000/- which include ODC and penal interest of Rs. 3,00,000/-. The authorities of the company illegally demanded the complainant to pay further amount of Rs. 8,15,000/- as the earlier amount paid was adjusted towards penal interest and costs. Further it is alleged that the OP company had obtained blank signed Cheques from complainant at the time of issuing the loan, which may used by the OP for harassing complainant. The people of Opposite party without issuing notice and intimation came to the house of complainant on the same day on 19-11-2011 to seize the bus even though there is no due to the OP Company. The OP has no right to seize the bus in case of default as the HP agreement does not term any condition of seizure and penal interest. The OP by misusing the signed papers and blank cheques of complainant is trying to extract huge money from the complainant. The act of OP of seizing the bus is illegal. So, also issuance of notices, seizure notices etc., by OP is illegal as they were not authorized to do so. Keeping blank signed cheques and Profarma papers belonging to complainant at the pretext of security is also illegal and they had to be returned to the complainant. Therefore the complainant prayed to direct the Op not to seize the vehicle bus bearing No. AP01 X 2008 and to pay Rs. 90,000/- towards damages and Rs. 8,000/- towards costs and also to award future interests and costs of the litigation.
3. The Opposite Party filed counter denying the material allegations contained in the complaint except the fact of availing of HP loan by complainant from the Opposite party. It is stated that the complainant neither paid an amount of Rs. 2,78,000/- up to November 2011 nor any payments were not acknowledged by the Opposite Party. It is false to allege that, the manager of Opposite party company illegally collected heavy amount under ODC and penal charges. It is also false to allege that the amount of Rs. 60,500/- was retained by the Opposite party and that they tried to seize the vehicle illegally. It is also false to state that the bus made off road for a period of three months and the complainant paid instalments in advance. It is also false to state that on 19-11-2011 the officers of the opposite party had been to the house of complainant and threatened to seize the bus and also demanded Rs. 7,00,000/- for clearance of the loan amount.
It is stated that the complainant obtained loan of Rs. 5,00,000/- on 19-03-2010 to be repaid in 45 instalments @ Rs. 18,222/- as a first instalment, @ Rs. 18,629/- as the second instalment , @ Rs. 18,222/- from 3rd to 44th instalments and @ Rs. 18,232/- as a last instalment which includes of interest of Rs. 3,20,407/-. On 19-03-2010 the complainant had executed the HP agreement vide No. NIZA30003180003 in favour of the Opposite party company. It is further stated that the complainant is a chronic defaulter who has no financial discipline. However he had paid the total amount of Rs. 2,19,122/- up to 13-09-2011 which amount 12 number of instalments and thereafter he failed to pay the instalments and became chronic defaulter. The opposite party issued notices to the complainant on many dates i.e.viz 30-09-2010, 29-08-2011 and having received the same the complainant did not react positively but chose the wrong path of filing false complaint before this Forum.
It is further stated that at the time of availing the loan of Rs. 5,00,000/- the complainant requested the opposite party to adjust Rs. 35,000/- towards due amount of the Hp agreement. An amount of Rs. 18.222/- was collected towards advance EMI’s which reflected in the amounts of the instalments paid by the complainant. An amount of Rs. 1,739/- was collected towards insurance premium at the requests of the complainant. An amount of Rs. 5,500/- was collected towards documents and service charges. Thus the total amount of Rs. 60,461/- was adjusted under various heads at the request of complainant himself. Adjusting the said amount is not illegal. The request letter dated ; 8-03-2010 duly executed by the complainant clearly authorised the OP to recover such amount. As such allegation that entire loan was not disbursed to the complainant is false and fabricated story. The complainant never objected for the said recovery for a period of one year and only after issuance of notices filed this complaint with false allegation. The fact that the Opposite party obtained the blank signed documents from the complainant are false. It is also false that opposite party did not issue receipts for the amount received. It is only false allegations made by the complainant to escape from the liability and cover the jurisdiction of the Forum. The opposite party never tried to seize the bus illegally without issuance of notice. Only to harass and to degrade the goodwill of the opposite party such false allegations made by complainant which are not binding on opposite party. It is stated that the complainant is liable to pay Rs. 4,37,338/- towards balance instalments/EMI’s and Rs. 2,51,310/- towards penal charges total Rs. 6,88,648/- which the opposite party is entitled to recover from the defaulter like the complainant herein. The complainant is motivated and vexatious as such liable to be dismissed. Therefore the opposite party prayed to dismiss the complaint with exemplary costs
4. During enquiry no witnesses were examined and no documents were marked on behalf of the complainant. On behalf of the Opposite Party its branch Manager Sri. Y. Ramakrishnudu, is examined as RW1 and got marked Ex. B1 to B10.
5. The points for consideration are:
i) Whether the complainant is entitled for any relief as prayed for?
ii) To what relief?
6. POINT NO.1 & 2
The facts that the Opposite Party financed Rs. 5,00,000/ - to the complainant under HP loan agreement No. NIZA 30003180003 for the bus No. AP01X2008 and that the said loan amount was to be re paid in 45 equal instalments @ Rs. 18,000/- per month are not in dispute. It is also not in dispute that the complainant executed the said HP loan agreement in favour of the OP. The dispute is only with regard to the allegations in the complaint that the most of the payments were received by the Opposite Party but they did not pass any receipt on the pretext of issuance of receipt later, and that though the payments received by the personnel of Opposite Party they had adjusted the same towards heavily charged penal interest, overdue charges which are not mentioned in the agreement nor informed to the complainant at the time of advancing loan and that the OP demanded Rs. 7,00,000/- by dated 18-11-2011 towards ODC, penal amount even after clearing the due amount of the loan. The further allegations of the complainant are that the OP obtained the blank signed cheques from the complainant at the time of issuance of loan which may be used by the OP for harassing him. Further allegation is that on 19-11-2011 without issuing notice and intimation the Opposite Party demanded huge amount of Rs. 7,00,000/- for clearance of due and they tried to seize his vehicle which acts of the OP are illegal.
Except these bald allegations made by the complainant there is no evidence on his behalf to substantiate the said allegations. The complainant has not adduced any evidence either by way of filling his affidavit or examining any witnesses. He has failed to prove the allegations made by him against the OP inspite of sufficient and reasonable time granted. In absence of any evidence the allegations made by the complainant cannot be gone into by the Forum as the pleadings are not the evidence in view of the decision in Solanki Bharthuji Fataji V/s. National Insurance Co.Ltd.,of Hon’ble Gujrat SCDRC, Ahmedabad, reported in II(1993) CPJ 854 and also in view of the decisions in Fakroudine Adamjee V/s. Yusuff Abdulla of Hon,ble Karnataka SCDRC, Banglore reported II(1993) CPJ 941 and M/s. Konark Television Limited V/s Rakesh Garg of Hon,ble Bihar SCDRC, Patna reported in II(1993) CPJ 972.
Having considering the facts and circumstances of the case, in absence of the evidence on behalf of the complainant and in view of the above decisions we are of the considered opinion that complainant had failed to prove his case. Therefore the complainant is not entitled for any relief as prayed for and the complaint is liable to be dismissed. Accordingly point Nos.1 and 2 are answered against the complainant.
7. In the result, the complaint is “DISMISSED’. No costs.
Typed to dictation, corrected and pronounced by us in Open Forum on this the 28th day of February 2014.
