Tamil Nadu

StateCommission

CC/92/2013

A.P.Suryaprakasam - Complainant(s)

Versus

The General Manager,Kotak Mahendra Prime Ltd. & another - Opp.Party(s)

K.Kumaran

26 Feb 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE        HON’BLE THIRU JUSTICE R. REGUPATHI        PRESIDENT

                        THIRU.A.K.ANNAMALAI                          JUDICIAL MEMBER 

                        TMT. P. BAKIYAVATHI                                                 MEMBER                           

C.C.NO. 92/2013

Dated this the  26^th day of FEBRuary, 2015

 

                                                      Date of Complaint      :     23.8.2013

                                                      Date or Order            :     26.2.2015

 

A.P.Suryaprakasam

S/o A. Perumal,

C-4, Lakshmi No 179, Llyods Road,

Royapettah, Chennai 600 014                                ..complainant

                                                Vs

1. The General Manager

Kotak Mahindra Prime Limited,

No.36-38, Nariman Bhavan

No.227, Nariman point,

Mumbai 400 021

 

2. The Manager

Kotak Mahindra Prime Limited,

1^st Floor Ceebros Centre,

New No.39, Old No. 45

Montieth Road, Egmore

Chennai 600 008                                               ..opposite parties

 

Counsel for the complainant                  : M/s K. Kumaran

Counsel for opp.parties 1 and 2             : M/s Anand, Abdul & Vinoth

 

THIRU.A.K.ANNAMALAI,  JUDICIAL MEMBER

 

     The complaint filed under Section17 of the Consumer Protection Act, 1986. The complainant claiming a sum of Rs.10,00,000/- (Rupees Ten Lakhs only)  towards compensation for deficiency in service to the complainant, to pay a sum of Rs. 11,00,000/- (Rupees Eleven Lakhs only) for pain and suffering and mental agony and threats to damage the social status and life to the complainant and direction to close the loan Agreement and issue No Due Certificate to the complainant and to issue no objection certificate for cancellation of hypothecation endorsement in the Registration certificate and to pay the cost of the proceeding.

2. The gist of the complaint in brief as follows:

              The complainant being the Advocate in High Court of Madras, having 35 years of bar experience and former public Prosecutor of High Court of Madras obtained a car loan from the 2^nd opposite party in loan account No. CF - 4543113 dated 30.4.2008 for Rs.4,00,000/- to be re-paid in 60 installments till March 2013 and he had paid all the installments also closed his loan account as on March 2013 for which the statement of account was sent by the 2^nd opposite party while he was in office on 25.4.2013 at about 11.10 A.M through his mobile number one Ms. Archana of the 2^nd opposite party’s staff informed that his name was included in the list of defaulter with CIBIL. Further to remove the name, he has to pay a sum of Rs.1250/- to the 2^nd opposite party. Hence the complainant demanded for a demand notice in writing the amount to be paid and also when the same was heard by the 2^nd opposite party’s staff started abusing the complainant in filthy language and that the image is tarnished with the neighbours and further threatened to kidnap the complainant to the 2^nd opposite party office by force and when the complainant re-dialed to the phone number and re-checked the details found to be true and informed that only at the specific instruction of the opposite parties 1 and 2, she acted.

3.              The above acts of the staff, the opposite party in threatening the complainant through rowdy element to extract the money from the complainant and that the threat up violence against the complainant’s body and reputation is against the guidelines of RBI and the attempts of the opposite parties to collect a sum of Rs.1250/- by illegal force without any formal demand is bad in law. Hence they issued notice on 26.4.2013 and it was not responded which would amounts to deficiency in service even in March 2013, the loan was paid, the opposite parties failed to close the hire purchase agreement to issue NOC and failed to issue statement of account which caused mental agony and thereby the complainant filed the complaint seeking the reliefs.

4.    written version  of  opposite parties are as follows:

             The 2^nd opposite party filed the written version adopted by the 1^st opposite party denying the allegations contended that the Kodak Mahindra Prime Ltd is different entity altogether and is a non-banking. Finance company as certified by the Reserve Bank of India. The complainant has wrongly filed the present complaint against the same from whom the car loan was availed by him. It is admitted that the complainant under the loan agreement availed and paid entire loan but the penal charges of Rs. 1226.53 was pending which was mentioned in the statement of account regarding the allegations  of threat by the employee one M/s Archana on 25.4.2013 is false and no such person under their employment and inclusion of the complainant’s name as defaulter in CIBIL is also not supported by any proof and it was not shown as defaulter in CIBIL, he was not shown as defaulter.      The executive appointed by the opposite parties has never mis-behaved that the complainant and never used any abusive words or threat the statement of account would reflect the payment of amount by the complainant also the penal charges. Even there was no fault of the opposite parties, the opposite parties met the complainant in person at his residence and offered to issue NOC, and hence the reply was not given.

5.            The No objection certificate was printed on 14.5.2013 itself was refused to receive by the complainant. The opposite party though liable to receive penal charges as per loan agreement for the defaulters as a special case, it was waived for issue of NOC and the complainant only interested for compensation and to extract money from the opposite party on filing complaint wrongly and thereby there is no deficiency in service on the part of the opposite parties, the complaint to be dismissed.

6.            Both sides have filed their proof affidavit and documents Ex.A.1 to A.3 were filed on the side of the complainant.  Ex.B.1 to B.3 were filed on the side of the opposite parties.          

7.   Points for consideration are as follows:-

1)   Whether there was any negligence and deficiency in service by opposite parties in dealing with the loan account of the complainant for the purchase of car by non-issuing NOC, closure certificate etc.,?

2.    Whether the complainant is entitled for a sum of Rs.10,00,000/- towards compensation for deficiency in service from the opposite parties?

3.    Whether the complainant is entitled for Rs. 11,00,000/- towards pain and suffering and mental strain and threat to damage the social status and life of the complainant from the opposite parties?

4.   To what relief the complainant is entitled to?

8.  Point No. 1 and 2:-  

        In this complaint enquiry, the complainant being a practicing Advocate in High Court of Madras served as Public Prosecutor in the High Court of Madras which are all not denied by the opposite parties filed the complaint claiming that he had availed the car loan from the 2^nd opposite party for Rs. 4,00,000/- during the year 2008 to be payable in 60 installments from 2008 to March 2013 and accordingly settled entire dues in time and in spite of the same, it is alleged that he was threatened through mobile phones by one of the staff of the 2^nd opposite party informing  that his name was included in the defaulter list in the CIBIL and he has to pay Rs.1250/-  to remove the name from the same and also he was threatened that abusive languages and there for live.

9.       It is admitted facts of the payment of the entire loan except the alleged due of Rs.1250/- as penal charges which was not paid by him, eventhough it was mentioned in the statement of account and there was no allegations are regarding threat was proved.

10.         The opposite parties file a loan agreement with statement of Account as Ex.B.1 and as per the same as on 15.3.2003, a sum of Rs.1,250/- was mentioned as to be payable by the complainant and there  are three entries for cheque return and bouncing out of 60 cheques, three cheques bounced dated 16.9.2010, 16.8.2011, 18.1.2013 for Rs.9000/- each and the opposite parties contended because of this default payment for penal amount of Rs.1,226.53 is pending due as payable by the complainant.

11.      Though these contentions are acceptable and this complainant itself it is stated that there was demand of Rs.1,250/- for which they requested for demand notice in  writing which was not complied by the opposite parties’. They failed to prove  that they have intimated the same to the complainant in spite of the legal notice sent by the complainant under Ex.A.2 explaining the circumstances regarding the telephone call with threat and abusive languages received and this would amounts to deficiency of service when the complainant sincerely  paid all the installments except for the three cheques said to have been bounced as mentioned in Ex.B.1 for which they have not come forward to file the copy of the written memo or bounced cheque sent to the complainant before this Commission as pointed under Ex.B.1, when he paid all the amounts as for as the schedule and as per the inclusion of name of the complainant for default in CIBIL  list in the concerned opposite parties have filed as CIBIL report under Ex.B.2 in which regarding the loan obtained by the complainant mentioned relating to the past due assert classifications, there are two default entries for the month of 9/2012, 2/2012 are being found and as pointed out, earlier the opposite parties failed to produce the returned cheque or particular of any intimation regarding the same to the complainant, when the complainant alleged the entire amount paid within the agreed period. But the opposite party had relied upon Ex.B.3, NOC said to have given to the complainant addressing to the regional transport officer relating to the cancellation of hypothecation marking copy to the complainant and we find no specific date for dispatch but which it, we find the date as 14.5.2013 which is after issuance of legal notice under Ex.A.2. In the written version it is stated that the complainant refused to take NOC, eventhough it was prepared on 14.5.2013 is stated that they are keeping the NOC, since the complainant refused to receive the same. Hence we are of the view that the complainant had established deficiency in service against the opposite party in not settling the transactions in the due manner and  unnecessarily insisted for further payment without having issued any written demand and also not issuing NOC and thereby which caused deficiency of service for which the complainant is entitled for suitable compensation  for the same. The complainant claimed a sum of Rs.10,00,000/- as compensation towards deficiency of service and this amount of claim without having any proportionate to the case. While considering the deficiency of service alleged the claim was only for a sum of Rs. 1250/- in excess inspite of the entire loan settled for this, the opposite parties have stated that it is for towards penal charges for non-payment of penal charges due to bouncing of cheque etc., which was also pointed out in the statement of account as contended by them and subsequently waived for to issue NOC, in those circumstances for deficiency in service which is established, we are of the view a sum of Rs. 10,000/- could be awarded as compensation. Hence these points are answered accordingly.

12. Point. No.3

         The complainant had claimed a sum of Rs. 11,00,000/- for pain and suffering and mental strain and threat to damage the social status and life of the complainant. While considering this claim, the complainant has not given any police complaint regarding the life threatening and for abusive language used through the employee of the opposite party insisting for the alleged the non-payment of Rs.1250/- and thereby he issued a legal notice under Ex.A.2, demanding for damages for Rs.10,00,000/-. The complainant being the practicing High court Advocate having sufficient years of service while dealing with the opposite party regarding the car loan availed by him, since the deficiency of service against the opposite party was proved as pointed out in the finding in point No 1 and 2, certainly he could have undergone the mental agony, mental stress, and strain inspite of settlement of entire loan, further alleged demand without any proper procedure or in writing would have caused the harassment and thereby certainly he should be suitably compensated for the same.  While considering the facts and circumstances of the case, even though the complainant claimed Rs. 11,00,000/- (Rupees Eleven Lakhs) for the same, for which he had no explanation how such huge amount was arrived at and thereby we are of the view for the purpose of it,we could award a sum of Rs.40,000/- as compensation and this point is also answered accordingly.    

13. Point No.4:

        In view of the findings above in point Nos 1 to 3, the complaint is allowed in part by holding negligence and deficiency of service against the opposite parties in dealing with the loan transactions with them for the purchase of car by non-issuing NOC, closure certificate etc.,. Thereby the opposite parties 1 and 2 are jointly and severally directed to pay a sum of Rs. 10,000/- for deficiency of service and also directed to pay a sum of Rs. 40,000/- to the complainant for causing mental agony, stress and harassment and threat to damage his status in dealing with the loan transactions also directed to pay a sum of Rs.5000/- as cost.

         In the result, the complaint is allowed in part by holding negligence and deficiency of service against the opposite parties in dealing with the loan transactions with the complainant for the purchase of car by non-issuing NOC, closure certificate etc., by following procedures under law.

         Thereby the opposite parties 1 and 2 are jointly and severally directed to pay a sum of Rs. 10,000/- for deficiency of service and also directed to pay a sum of Rs. 40,000/- to the complainant for causing mental agony, stress and harassment and  threat to damage his status in dealing with the loan transactions.

      The opposite parties are directed to issue NOC at once for the purpose of cancellation of hypothecation endorsement if already not issued.

     The opposite parties are directed to pay a sum of Rs.5000/- as cost.

      The directions shall be complied by the opposite parties within six weeks from the date of this order.

 

P.BAKIYAVATHI                  A.K.ANNAMALAI                             R.REGUPATHI

   MEMBER                           JUDICIAL MEMBER                           PRESIDENT

 

                                      ANNEXURE

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT : 

Ex.A1           11.5.2008      copy of welcome letter with loan repayment

Ex.A.2          26.4.2013     copy of notice to the opposite parties with

                                       acknowledgement card

 

Ex.A.3          11.7.2013     copy of insurance policy

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY

 

Ex.B.1          22.10.2013   copy of Loan Agreement

 

Ex.B.2          copy of CIBIL Report

 

Ex.B.3          14.5.2013     copy of NOC

 

 

 

P.BAKIYAVATHI                  A.K.ANNAMALAI                             R.REGUPATHI

   MEMBER                           JUDICIAL MEMBER                           PRESIDENT