SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint for realization of compensation etc.

          The averments in the complaint can be briefly  summarized as follows:

The complainant is an employee of KSRTC .  He availed a loan of Rs.27,000/-  from the first opp.party on 7.8.1998 vide No. NFDL 324/98.  One Mr. Cleetus  was the surety .    The loan was  to be repaid in 47 monthly instalment at the rate of Rs.804/- from 7.9.1998 to 7.7.2002 a sum of

Rs. 2700/-  was kept as security  and Rs.24, 300/-  was paid which was to be adjusted at the time of closure of the loan.   The complainant had remitted first 3 instalments  together  on 25.11.98.   In the meantime  the first opp.party has taken steps  for the recovery of the  loan amount  from the salary of the complainant.   Accordingly from 11/98 to 12/2001 the 2^nd opp.party had recovered a sum of Rs. 36,000/-  from the salary of the complainant, while he was working at Kozhikode and Rs.1,000/-  while he was working at Kottarakkara.   The cum of Rs. 1,000/- was also collected from the surety of the complainant which the complainant had paid to him Thus a total amount of Rs.40,412/-  was paid  by the complainant towards the loan account, in addition to Rs. 2,700/-  with interest  which was deducted from the loan amount and kept by the first opp.party.   Thus the complainant had paid the entire loan amount  and excess amount in January 2002 .  The complainant issued a notice to the first opp.party requesting  to refund the excess amount collected with interest along with the sum of Rs.2,700/-   But no reply was given nor made any payment.   The first opp.party had now initiated  steps for revenue recovery to realize  Rs.9.648/- with interest at the rate of   18% interest from the complainant and surety,    even though the entire  amount has been paid.   The complainant demanded the first opp.party for  a copy of statement of account but the same was not furnished to him.     It is alleged by the first opp.party that the 2^nd opp.party did not pay all the amount recovered from the salary of the complainant to the first opp.party.  The complainant furnished all the details relating  recovery  effected by the 2^nd opp.party .  But the first opp.party ignoring the same is proceeding against the complainant.  Hence the complaint.

          The first opp.party filed version contending, interalia that the complaint is not maintainable either in law or on facts.     The Forum has no jurisdiction to entertain this complaint.   The  first opp.party is a Financial Institution  availing loan and conducting  chitty as per the chitty Act.  As  a Government undertaking  they provided facilities  for loan to government employees with specific rate of  interest and penal interest  for default payment.  The complainant is a loanee of the first opp.party and not a consumer .  The complainant has availed a loan of Rs.27,000/- from the first opp.party after executing  necessary loan with sureties  for  the  repayment the loan amount.. However he committed default and the first repayment of loan amount was on 25.11.1998.  After that the complainant did not make any payment directly.  The  first opp.party thereupon initiated recovery proceedings and the 2^nd opp.party remitted at the  rate of Rs. 980 per month.    After  29.7 again  there was default.  The 2^nd opp.party did not make payment in  August and September 1999,  November  1999  May, June 2000 to March 2002 , May 2002 , July 2002 to September 2002.    After October 2002  the 2^nd opp.party  did not make payment upto June 2003   In the year 2003  only 6 monthly payment were  done  and 3 remittance were made by the 2^nd opp.party  on 21.1.2004, 13.2.2004 and 18.3.2004.   The 2^nd opp.party did not make any payment when the first opp.party initiated legal proceeding to recover the balance amount  to the complainant filed this complaint.  If the complainant had dispute regarding the remittance he should have approached a Civil Court  for remedy.  Hence the first opp.party prays to dismiss the complaint with their costs.

          The 2^nd opp.party filed a separate version contending that the complaint is not maintainable as  it is not filed in accordance with the law  or statutes  and so the same is to be dismissed in liminie.   There is no bonafides in the complaint.   The averments in para 1 of the complaint  is only best know to the complainant.  The averments in para 2   of the complaint are admitted to the extent that the recovery of salary from the complainant here in was done with effect from April 2002 the recovery was discontinued since the amount required to be satisfied was already effected and remitted.   The entire amount recovered has already  been remitted before the Kundara branch of KSFE that is Rs. 36,000/-  from the Kozhikode office and Rs. 1,000/-  while he was working at Kottaarakkara.  The averments  in paras 3 and 4 are false and hence denied.   There is   collusion between the complainant and the  1^st opp.party.  The 2^nd opp.party is no way liable for the illegal attempts of the complainant and the first opp.party.   There is no latches on the part of the  2^nd opp.party at any time..  As soon as the amount recovered  from the complainant the same was deposited before the first opp.party   The first opp.party  may be directed to  furnish the details  of remittance  made by the 2^nd opp.party.  Hence the 2^nd opp.party also prays to dismiss the complaint as against the 2^nd opp.party.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.     Reliefs and costs.

For the complainant PW.1 is examined..   Ext. P1 to P4 are marked.

For the opp.party DW.1 is examined.   Ext. D1 is marked.

POINTS 1 AND 2

          According to the complainant the loan of Rs.27,000/- availed of by him from opp.party1, though  was to be repaid by 7/2002 was repaid  by 31.12.2001  the opp.party 1 is initiating steps to realize excess amount from him which amounts to deficiency in service.  According to the complainant though repayment of 1^st , 2^nd and 3^rd instalments were defaulted he padid all the 3 defaulted instalments on 25.11.1998.  However  the 1^st opp.party has taken steps for recovery of the loan amount from his salary and accordingly the 2^nd opp.party recovered lRs.36,000/- for the period from 11/98 to 12/2001 @ Rs.1000/-  p.m.  Ext. P2 is a certificate issued lby the District Transport Officer, Kozhikode which shows that a sum of Rs.36,000/- was recovered from the salary of the complainant during the period from 11/98 to 12/01.  It is argued by the learned counsel for the complainant that though the repayment was to be completed by  7.7.02 the entire amount was repaid  by 12/01 and  opp.party 1 has no right to recover more amount.

          Ext. D1 is the statement of account produced by opp.party 1 in respect of the loan account of the complainant which shows that repayment of loan was being made or adjusted upto 7.8.02 and the total  amount as per Ext. D1 comes to Rs.40585/- Ext. P2 certificate shows that recovery was made from the salary of the complainant towards loan No.NFDL 324/98 of KSFE Kundara   and a sum of Rs.36,000/- was recovered in total as shown below

          From 11/98 to 8/2000 22 instalments @ Rs.1000/- p.m. amounting to Rs.22,000/-

          From 10/2000 to 7/01 10 instalments @ Rs.1000/- p.m. amounting to Rs.10,000/-and

          From 9/01 to 12/01  4 instalments @ Rs.1000/- p.m.  amounting  to Rs. 4000/-.  Hence the total recovery comes to Rs.36,000/-   This plus the amount of 3 defaulted instalments of Rs.2492/- comes to Rs. 38,492/- whereas the total amount to be repaid by 7.7.2002 if regularly paid comes to Rs.37,788/- [DW.1 cross examination on the  revirse side of page 1]  DW.1 further admitted in cross examination in the same page that as on December 2001 a sum of Rs.40,412/- has been received from the complainant including the 3 defaulted instalments paid in I  him Rs.2412/-.  It is not any mistake is obvious from the next sentence “domlsf 10%ejmjvv\vk 2700&% goe domj Llijsm Kn\mlujgkr\rk 2700&% goe ehjCum]A 4104&% goe 2002 8%lA alcA igik iv\vj}kn\mk;   It goes without saying that  security deposit is adjusted with the loan where the loan is completely repaid.  If that be so, one is at a loss to understand as to how the 1^st opp.party can claim that instalments from 41 to 48  are still in arrears.

          Opp.party 2 has effected recovery from the salary of the complainant @ Rs.1000/- p.m.  towards the loan amount presumably on the basis of the recovery order issued by opp.party.1   As a matter of fact opp.party 1 has not produced the agreement or the copy of the recovery letter.  Now let us compare Ext.P2 and Ext. D1   Ext.P2 shows that the recovery of Rs.36,000/- was over by .12/01 .  But  Ext. D2 shows that the instalments were being adjusted upto 22.1.2005 . No explanation is forthcoming as to who was remitting the instalments when Ext.P2 coupled with the evidence of DW.1 shows that the recovery was over as early as 12/01.  It is also pertinent to note that opp.party 1 is adjusting these amount on later dates charging penal interest.   For  eg. as per Ext.D1 the 29^th instalment which was due on 7.1.2001is seen remitted on 1.8.2003 and adjusted on 13.8.2003.  If Ext. P2 and the evidence of DW.1  relied on the recovery was over by 12/01 and it is quite  probable  that the recovered amount was sent by opp.party 2 to opp.party 1 immediately.  No attempt is made by opp.party 1 to establish that opp.party 2 forwarded the attached amount years after attachment enabling them to charge  penal interest.  It is also worth pointing out that opp.party 2 was effecting recovery from the salary of the complainant compulsorily as per the request of opp.party 1 and so for the delay, if any, in forwarding the amount to opp.party one by opp.party 2 the complainant cannot be penalized.  Opp.party 2 is also a Government undertaking just like opp.party 1 and we find no reason to disbelieve Ext.P2.  In the absence of other corroborating materials regarding  belated receipt of recovered amounts from opp.party 2 no credibility  can be given to the entries in Ext. D1.

          As pointed out earlier DW.1 admitted in cross examination that as on 2001 December a sum of Rs.40,412/- have been received in the account of the complainant.  He has further admitted that in addition to that security deposit of Rs.2700/-  with interest was also there.  If Rs.40,412/- was   received by 12/01 itself and the security deposit with interest was also  there it will be more than Rs.44000/- and it is obvious that Ext.P2 is true and the entries in Ext. D1 cannot be  believed .  If Rs.40412/- was received in 12/01 itself the entries relating to instalments 25 onwards cannot be believed for a moment.

          Another aspect which requires mention  is collection of penal interest.  Penal interest is seen  collected  for the  entire outstanding loan amount and not on defaulted amount.  In respect of entries from instalment 25 onwards the penal interest collected is much higher than the interest collected every month. Ext. D1 shows that a major portion of penal interest was collected after the payment of entire amount by 12/01.  It is also pertinent to note that the agreement was not produced with the result that  regarding  the rate of penal interest we have to grope into the darkness.  In the light of the evidence of DW.1 Ext. D1 cannot be swallowed without a pinch of salt.

          The opp.parties have initiated RR proceedings claiming that instalment Nos.41 to 48 are outstanding and the proceedings were initiated in the year 2005.  Recovery has also been effected from the salary of the surety of PW.1,  one Cleetus thereby causing mental agony and harassment to the complainant as well as his surety.   After collecting the entire loan amount with interest and penal interest by 12/01 the initiation of RR proceedings after maintaining  loan account incorrectly and negligently is gross deficiency in service on the part of the opp.parties.  Point found accordingly.

In the result the complaint is allowed.   The opp.parties 1 isdirected to pay the complainant Rs./2700/- with interest @ 12% p.a. from 7.8.1998 till payments.   Rs.7000/-f with interest @ 12% p.a. from October 2007 till payment.   The opp.party 1 is directed to pay the complainant a sum of Rs.10,000/- towards compensation and Rs.3000/- towards costs.

The opp.party 1 will pay the amount and realize the same from those who are responsible  if they choose to do so.

The order shall be complied with within one month from the date of this order.

Dated this the 29^th       day of August, 2009.

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I N D E X

List of witnesses for the complainant

PW.1. – Simon

List of documents for the complainant

P1. – Pass book

P2. – Recovery certificate dated 28.12.2001.

P3. – Demand notice

P4. – KSRTC. Schedule of Recoveries – General

List of witnesses for the opp.party

DW.1. – Thomas panicker

List of documents for the opp.parties

D1. – Copy of Ledger