BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st August 2009
COMPLAINT NO.27/2009
(Admitted on 09.02.2009)
PRESENT:
1. Smt. Asha Shetty, B.A. L.L.B., President
2. Sri. K. Ramachandra, Member
BETWEEN:
Mr.Abdu Salam Puthige,
So. E.M. Shafi,
Door No.2.157.A, Alangar,
Marpadi Village, Moodbidri,
Mangalore Taluk. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Shashiraj Rao, Kavoor).
VERSUS
1. The Branch Manager,
IndusInd Bank Ltd.,
Premium Enclave,
Light House Hill Road,
Mangalore.
2. The Authorized Officer,
IndusInd Bank Ltd.,
Retail Banking Division at 92,
Chamiers Road,
Chennai – 600 018. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.Dayananda Rao K.S.)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The case of the Complainant is that the Opposite Party No.1 is the banker of the Complainant and Opposite Party No.2 is the Head Office of the Opposite Party No.1. The Complainant has availed a loan for the purpose of purchase of Omni Maruthi Vehicle bearing registration No.KA 19Z-0378 by hypothecating the same with the Opposite Party No.1. It is submitted that the Complainant was very prompt and regular in payment of the loan installments by keeping sufficient funds in his account in order to encash the post dated cheques issued by the Complainant. No cheques have been dishonoured for any reason. It is contended that the Opposite Party No.1 had presented and encashed only 10 cheques but with a deliberate intention Opposite Party No.1 had not presented the 3 cheques for encashment though there was sufficient fund in the bank account of the Complainant in order to cause exorbitant interest and penal charges. It is submitted that inspite of Complainant’s request, Opposite Party No.1 had not taken steps to present the cheques.
The 2nd allegation of the Complainant is that, the Opposite Party No.1 also threatened by some rowdy elements to seize the vehicle and the Complainant lodged police complaint before the Bunder Police Station on 22.1.2008.
The 3rd allegation of the Complainant is that, the Complainant had issued legal notice dated 18.2.2008 to the Opposite Party No.1 calling upon to furnish the up-to-date statement of account pertaining to the loan transaction of the Complainant. The said notice served but had given reply to the notice not sent up-to-date statement of account. In between the Complainant had received a legal notice dated 8.2.2008 received on 19.2.2008 issued by the advocate of Opposite Party No.2 by stating that the cheque was returned since there was insufficient fund in the account of the Complainant even though the Complainant had sufficient fund in his account and there was no due whatsoever as stated by the Opposite Party No.2.
It is submitted that the Opposite Parties and their recovery agents tried to seize the vehicle and insulted the Complainant in front of his friends and family members due to which the Complainant had suffered mental agony and harassment hence filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.1,00,000/- as compensation and also hand over up-to-date no due certificate to the Complainant in respect of cleared cheques and further claimed compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version. It is admitted that the Complainant had availed the loan of Rs.1,93,014/- from the Opposite Party and entered into a loan agreement dated 6.1.2007 for purchase of vehicle. It is also admitted that the Complainant had given cheques towards the loan installments payable in terms of the loan agreement. The cheques issued by the Complainant were presented within its validity period. The Opposite Parties have acted in terms of the loan agreement and the Opposite Parties have not threatened or tried to seize the vehicle or they have not deputed any recovery agents to seize the vehicle. It is submitted that the Complainant issued 10 cheques i.e., from 7.2.2007 to 7.11.2007 at the time of availing loan and promised to issue the remaining post dated cheques well within the due date of the last cheque i.e., 7.11.2007. Since the Complainant handed over the remaining post dated cheques at the tag end of December 2007 could not be presented for payment on its date. No additional amount was either collected or interest on the cheque amount was claimed from the Complainant.
It is further submitted that the notice dated 8.2.2008 caused by the bank through advocate was on account of mistake of fact and technical snags. The said mistake was later discovered and not acted upon.
Regarding the issuance of up-to-date account statement this Opposite Party submitted that there is no just reason for claiming up-to-date no due certificate in respect of cleared cheques. This Opposite Party have acted in terms of the loan agreement and there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Abdu Salam (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Sri.Jagadish Rao (RW1), Assistant Manager in Opposite Party No.1 Bank filed counter affidavit and answered the interrogatories served on him. Ex R1 to R5 were marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
On consideration of documents and materials placed before the FORA it is admitted by the parties that the Complainant had availed the loan of Rs.1,93,014/- from the Opposite Party and entered into a loan agreement dated 6.1.2007 for purchase of the vehicle. It is also admitted that the Complainant had given post dated cheques towards the loan installments payable in terms of the loan agreement. The cheques issued by the Complainant were presented within its validity period.
The main grievances of the Complainant is that, he was very prompt and regular in the matter of repayment of loan installments by keeping sufficient funds in his account in order to encash the post dated cheques for discharge of the liability. According to the Complainant, he had issued post dated cheques from 7.2.2007 to 7.9.2008. It is contended that the Opposite Party presented only 10 cheques i.e., from 7.2.2007 to 7.11.2007 and thereafter 3 cheques were not presented for encashment deliberately in order to impose exorbitant interest/penal charges.
The 2nd allegation is that, the Opposite Party bank failed to issue up-to-date statement of account pertaining to the loan transaction of the Complainant. Thirdly, the Opposite Party bank issued a false and frivolous legal notice dated 8.2.2008 received on 19.2.2008 with a contention that the cheques issued by the Complainant were returned due to insufficient fund even though there was sufficient fund in his bank account and there was no due whatsoever. And fourthly the Opposite Party threatened and tried to seize the vehicle even though there was no due to the Opposite Party bank. It is contended that the above action of the Opposite Party insulted the Complainant and caused mental agony, harassment hence he came up with this complaint claiming compensation.
On the contrary, the Opposite Parties contended that the Complainant had not issued 20 cheques but issued only 10 cheques and rest of the cheques were issued in the month of December 2007 i.e., tag end of the month and it could not be presented for encashment. And further contended that the legal notice dated 8.2.2008 caused by the Opposite Party through advocate was on account of mistake of facts and technical snags, the said mistake was later discovered and the same was not acted upon. As far as up-to-date statement of account is concerned, Opposite Party contended that there is no just reason to issue up-to-date statement of account and rest of the allegations are denied.
In order to prove the case of the Complainant, Complainant produced the evidence of CW1 and the documents Ex C1 to C8. The Opposite Parties examined RW1 and produced Ex R1 to R5. We have considered the arguments and the materials placed before the FORA.
As far as the 1st allegation is concerned, there is no documentary evidence available before the FORA to show that the Complainant issued 20 post dated cheques i.e., 7.2.2007 to 7.9.2008 in respect of the installments in the above loan transaction at the time of availing loan. On the contrary, the loan agreement i.e. Ex. R1 produced by the Opposite Party reveals that initially 10 post dated cheques in respect of the EMI’s were issued by the Complainant. However, the Opposite Party bank in their evidence admitted that the disputed cheques not issued well in advance but the same has been issued at the end of December 2007 which could not be presented for payment on its date that means the cheques were issued by the Complainant within the due date. Apart from the above, the Opposite Party bank produced the loan account statement wherein no additional interest or penal charges on the cheque amount regarding the installment was claimed by the Opposite Party bank. Hence this allegation is not acceptable.
As far as the 2nd allegation is concerned, the Opposite Party bank failed to issue up-to-date statement of account in respect of the loan transaction. Admittedly the Complainant issued a legal notice dated 18.2.2008 i.e., Ex C1 to the Opposite Party bank and sought for up-to-date statement of account pertaining to the loan transaction by giving one week time and also sought no due certificate from the Opposite Party. The Opposite Party being a banker should have issued the up-to-date statement of account pertaining to the loan transaction to the Complainant by collecting fee if any. But in the given case the Opposite Party bank miserably failed to issue the up-to-date statement of account to the Complainant within reasonable time amounts to deficiency in service. The reason stated by the Opposite Party bank is not acceptable as far as statement of account is concerned.
As far as third allegation is concerned, the Opposite Party bank issued a false and frivolous notice by stating that the Complainant’s cheques were returned as insufficient funds in his bank account and called upon to pay Rs.18,858/- towards the due eventhough there was no due and the Complainant had sufficient balance in his bank account. No doubt, while filing the version the Opposite Party bank turned round and said the same is done by mistake of facts and technical snags, the same is not acted upon which is not acceptable because the Opposite Party bank officials ought to have withdrawn their mistake at the earliest point of time before filing the written version. It is not that the action was not taken, the point is to be considered is that the negligence shown towards the customer of the bank by issuing a false and frivolous legal notice without looking into the documentary evidence available on record with the bank shows their sheer negligence. Further it has to be considered that when there is no due and there was sufficient fund in the account of the Complainant, on receipt of the above false legal notice how the Complainant might have felt is to be considered. Therefore, issuing false legal notice also amounts to deficiency in service.
As far as the another allegation is concerned, the Opposite Party bank tried to seize the vehicle is not acceptable because there is no credible evidence available on record to consider the same.
On overall looking into the materials on record, it is proved that the Opposite Party bank while discharging their duty towards the customer – Complainant committed sheer negligence which should not be repeated any more. By considering the above facts and circumstances of the case, we hold that the Opposite Party bank without issuing up-to-date statement of account as sought by the Complainant on time and by issuing frivolous legal notice dated 8.2.2008 committed deficiency in service and thereby the Complainant was put to inconvenience and the harassment. By considering the above, we hold that the Opposite Party bank is hereby directed to pay Rs.3,000/- as compensation for the deficiency of service. Since the statement of account already produced before the FORA question of issuing statement of account does not arise. And further the no due certificate is concerned, there is no document to show that the entire installments were paid as of now. Hence the question of issuing no due certificate also do not arise. Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are hereby directed to pay to the Complainant Rs.3,000/- (Rupees three thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Abdu Salam – Complainant.
Documents marked on behalf of the Complainant:
Ex C1 –18.02.2008: Legal notice issued on behalf of the Complainant.
Ex C2 – 19.02.2008: Postal acknowledgement.
Ex C3 – 29.02.2008: Reply notice of the O.P. No.1.
Ex C4 – 08.02.2008: Notice sent on behalf of Opposite Party No.2.
Ex C5 – 26.02.2008: Reply notice sent to Sri.S.R.Sundar, Advocate.
Ex C6 – 14.07.2008: Legal notice sent to both the Opposite Parties.
Ex C7 – : Postal acknowledgement.
Ex C8 – : Postal acknowledgement.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Jagadish Rao, Assistant Manager in Opposite Party No.1 Bank.
Documents marked on behalf of the Opposite Parties:
Ex R1 – 06.01.2007: Copy of the loan agreement.
Ex R2 – : Statement of account relating to the loan account as on 2.3.2009.
Ex R3 - : Statement of settlement of amount relating to loan account as on 5.3.2009.
Ex R4 – 29.02.2008: Copy of the reply notice.
Ex R5 – 25.08.2008: Copy of the reply notice.
Dated:31.08.2009 PRESIDENT
