D.O.F. 13.09.2010
D.O.O. 24.08.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P. Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 24th day of August, 2011.
C.C.No.228/2010
Dr. K. Abdulla,
S/o. Pakky, : Complainant
‘Deems’, Chirakkara P.O.,
Thalassery.
(Rep. by Adv. John Joseph)
1. The Managing Director,
M/s. Tata Motors Limited,
Wasan House, 3rd Floor, Sindhi Society,
C.S.T. Road, Chembur.
Mumbai 400 071 : Opposite Parties
2. The Manager.
M/s. Tata Motors Limited (Motor Finance)
Opp. Ramananda Oil Mill, South Bazar,
Kannur-2.
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite parties.
(1) To issue a loan clearance certificate to the complainant.
(2) To pay ` 75,000 along with 12% interest as compensation and
(3) To pay cost of this proceedings.
The brief facts of the case set up by the complainant is as follows : Complainant availed a loan for an amount of ` 2,00,000 from 1st opposite party through 2nd opposite party for purchasing a car bearing No.KL 13P 6416. 2nd opposite party did not furnish copy of loan agreement but furnished a copy of letter dated 23.01.06 regarding the transaction and installments together with payment schedule. The interest payable was ` 37,800. The complainant had made a down payment of ` 1,39,200 to the dealer before delivery of the vehicle. As per the document complainant has to pay ` 7,200 as first installment and 46 installments of ` 6,100 each from 02.02.06 and ending on 02.11.09. Hypothecation has been duly endorsed in the certificate or registration. The complainant is entitled to get loan clearance certificate from the opposite parties on payment of entire loan. The complainant issued 24 post dated cheques for ` 6,100 each drawn on Indian Bank, Thalassery branch for installment due from February, 2006 to January, 2008. The initial 21 EMIs of the said loan were duly encashed on the basis of the post dated cheques. The complainant always kept his account with adequate funds. There was delay on the part of opposite parties in presentation of the cheques for encashment and complainant received several unnecessary communications from 1st opposite party regarding delay in payment of installments. On realizing the mistakes the officials of the local branch apologized for the omission on their part. During November, 2007 Kannur Branch again requested for post dated cheques and the complainant issued 12 post dated cheques for the period from November, 2007 to November, 2008. Thereafter complainant realized that there was duplication regarding cheques issued to opposite parties drawn on Indian bank, Thalassery and Vijaya Bank, Kuthuparamba during the period November, 2007 to January, 2008. Therefore complainant orally issued stop payment instruction to Indian Bank regarding three cheques viz. issued to respondent for the month of November and December, 2007 and January, 2008. By mistakes the complainant issued stop payment instruction to Vijaya Bank, Kuthuparamba regarding cheque issued for the month of November, 2007. After realizing the said mistake on the part of the complainant the complainant paid the said installment on 17.01.2008 by way of cash including penalty of ` 600 for delayed payment of ` 6,700. Due to confusion the officials in Kannur Branch and cheque of January was not presented by them. Opposite party omitted to present the post dates cheques for the installment payable for the Month of March and April, 2008. The said omission was informed to complainant and accordingly the complainant’s son paid ` 12,200 on 26.03.08 and another sum of ` 6,100 on 29.04.08 without any penalty. The officials apologized the complainant. Subsequently they omitted to present cheque for the month of May, 2008, September and November, 2008. Complainant contacted 2nd opposite party and convinced them that there was sufficient balance. Accordingly the officials of Kannur branch received a sum of ` 18,300 from the complainant by way of cash on demand complainant issued 12 other post dated cheques for the period from December, 2008 to November, 2009 on 03.11.2008. All the said 12 cheques were duly encashed. Accordingly complainant paid entire 47 installments and thereafter demand opposite party to issue the loan clearance certificate. Since there was no response complainant sent letter dated 22.04.10. But6 they did not issue the certificate company issued lawyer notice dated 28.06.2010. Both of them did not even send reply. Complainant suffered much mental pain and agony in connection with receipt of several communications with illegal demands for extraneous amount especially for retainer charges regarding delay in payment of EMI. Complainant also suffered financial loss of more than ` 50,000 on account of depreciation of the value of the vehicle. Hence this complaint.
Pursuant to the notice opposite party entered appearance and filed version, the content of which is in brief, given below : The complainant purchased one Indica DLS vehicle bearing registration No.KL.13P.6416 on 30.12.05 for a sum of ` 3,89,200 for which the initial amount of ` 1,39,200 was paid by the complainant and the remaining amount of ` 2,50,000 was financed by these opposite parties. As per the contract value of the said loan, complainant was liable to pay ` 2,87,800 to these opposite parties. As per clause 11 the vehicle was hypothecated and it shall remain in full force so long as all the amounts due under are paid by the complainant. Complainant herein guilty of delayed and inappropriate payment of the instalment amounts on various occasions and is liable to pay the over due installment and accrued overdue charges in order to get the loan clearance certificate. As per the agreement, the complainant has undertaken to pay ` 7,200 towards the first installment and further periodical instalments ` 6,100 per month for remaining 46 installments from 30.12.2005 to 02.11.2009. Complaint had issued 24 post dated cheque of ` 6,100 drawn on Indian Bank for the period of February, 2006 to January, 2008. The complainant showed irregularity in payment on several occasions and defaulted in payment of 24th instalment. Complainant issued 12 cheques for the period of November, 2007 to November, 2008 drawn on Vijaya Bank. 25th instalment was due on 02.01.2008 but the complainant paid ` 6,700 on 17.01.2008 in which ` 5,800 was appropriated towards the installments and rest of the amount appropriated as per clause 7. 26th installment also defaulted complainant paid ` 12,200 on 26.03.2008. ` 12,000 appropriated towards instalment and rest as clause 7. The cheques issued for the Month of May, September and November, 2008 returned due to over writing. Opposite party received the amount of ` 18,300 on 20.02.2009 in which ` 17,568 appropriated towards the instalment and the rest towards as per Clause 7. Hence due to the irregular payment and default in payment on 01.04.2008 and 02.12.2007 the complainant is liable to pay the overdue instalments and accrued over due charges on the total amount and hence the complainant is liable to pay ` 7,055.68 towards over due instalment and ` 9,282.73 towards the accured overdue charges as on 04.11.2010. Hence there is no deficiency in service or unfair trade practice on the part of opposite parties. Complainant is not entitled for any remedy.
On the above pleadings the following issues had been taken for consideration.
1. Whether there is any deficiency on the part of opposite parties?
2. Whether complainant is entitled for the relief as prayed in the complaint?
3. Relief and cost.
The evidence consists of oral evidence of PW1 and Ext.A1 to A27. Opposite party has neither oral nor documentary evidence.
Issues 1 to 3 :
Admittedly complainant purchased an Indica DLS vehicle having Registration No.KL 13P-6416 for a sum of ` 3,89,200 on 30.12.2005 for which complainant paid an initial payment of an amount of ` 1,39,200 and the balance amount ` 2,50,000 had been financed by the opposite parties. As per the agreement hypothecation complainant is liable to pay a total amount of ` 2,87,800 inclusive of financial charge. It is agreed to pay the entire amount by 47 instalments. Out of which the first instalment ` 7,200 and rest of the amount by 46 EMIs of ` 6,100. The first instalment paid on 30.12.2005. The maturity date of loan as per the agreement is 02.11.2009.
The case of the complainant is that he has discharged the entire amount within the scheduled period, but opposite party did not issue the loan clearance certificate. Opposite party on the other hand contended that complainant is liable to pay the outstanding amount of ` 16,338.
Complainant adduced evidence by way of affidavit that he had paid entire amount by means of 47 instalments viz. 21 instalments through Indian Bank, Thalassery Branch, 18 instalments through Vijaya Bank, Kuthuparamba and 8 instalments by ready cash. Complainant adduced evidence that the entire loan transaction was done through 2nd opposite party. The 1st instalment of ` 7,200 was paid on 30.12.05 by cash. Complainant further stated in evidence that he had issued 24 post dated cheques drawn on Indian Bank, Thalassery for ` 6,100 each, out of which 21 cheques were duly encashed. He also stated that he has maintained his account with sufficient amount with Indian Bank during relevant period. Complainant further states that despite due payment of instalments complainant received unnecessary communication from 1st opposite party with respect to delay in payment. When he had taken up the matter before 2nd opposite party officials of local branch had apologized complainant and admitted omission on their part regarding presentation of the cheques. Ext.A1 is the payment schedule. Ext.A3, statement account goes to show that instalments Nos. 2 to 22 were duly paid. It is also proved that the complainant maintained his account with sufficient amount.
Complainant further stated by means of affidavit evidence that he has issued 12 post dated cheques drawn on Vijaya Bank, Kuthuparamba towards the instalments from November 2007 to November, 2008 forgetting the fact that he had already issued post dated cheque upto January, 2008. Therefore complainant gave instructions for stop payment regarding three cheques of November, 2007 to January, 2008. The cheque of November included by mistake so that delay caused regarding the payment of the month of November, 2007. Hence complainant paid the amount with a penalty of ` l,600. Ext.A4 dated 17.01.08 reveals that opposite party received ` 6,700 from complainant by cash. Afterwards due to some confusions Kannur Branch officials did not present the cheque for the month of January 2008. So also they were omitted to present cheques for the month of March and April also. When the omission was informed the complainant paid ` 12,200 on 26.03.2008 and another sum ` 6,100 on 29.04.08. It can be seen by Ext.A5 dated 26.03.2008 and A6 dated 29.04.08 that the said amount ` 12,200 and ` 6,100 had been paid by the complainant. Complainant further stated that since it was an omission on the part of opposite party they did not demand any fine or penalty and the officials apologized on this mistake and omission. Complainant pleaded this fact and it was not denied by the opposite parties. No evidence given by 2nd opposite party against pleading and evidence of complainant. Hence it can be safely assume that it is a mistake committed by 2nd opposite party and the payment of the amount is proved by Ext.A5 and A6. Complainant again pleaded that Kannur Branch officials failed to present the post dated cheque of complainant towards the instalments payable for the month of May, September and November, 2008. On written communication complainant contacted 2nd opposite party and convinced them there was sufficient balance in the account of the complainant. Thus in pursuance of conciliation talk between the parties through the mediation of Adv. O.G. Premarajan complainant paid a sum of ` 18,300 on 20.02.2009 and received by opposite party without any default interest. Ext. A 15 to 17 reveals that the same had not been presented. Ext.A2 also shows that there was sufficient fund in the account to pay the amount of cheque. Complainant adduced evidence by way of cheque that when complainant was about to take legal action against the opposite party the officials Kannur Branch agreed to receive EMI to the said three months without any default interest. He has also stated that thus he has paid 36 instalments. Ext.A7 receipt proves that complainant has paid ` 18,300 on 20.02.2009 and opposite party issued receipt for the same. Ext.A7 seen recorded “Received with thanks from K. Abdullah – cash of ` 18,300 towards the following”. Ext.A7 proves the payment. The aspect of conciliation and all has not been denied by the opposite party. Hence that can also be taken for granted. Opposite party has not adduced any evidence against this. Though PW1 was cross-examined vehemently no question regarding the conciliation and payment of amount without default fee etc has not been put to the witness. In the cross examination opposite party could not bring out anything in favour of opposite parties. Complainant also adduced evidence by way of evidence affidavit that subsequently he had issued 12 post dated cheques drawn on Vijay Bank, Kuthuparamba for the period from December, 2008 to November, 2009 on 03.11.08. He also staed that all the 12 cheques were duly cashed through the said Bank. The specific case of the complainant is that complainant has paid the entire 47 instalments viz 21 instalments through Indian Bank, 18 instalments through Vijaya Bank and 8 instalments through cash including penalty of ` 600 for delayed payment. Opposite party has admitted in version that complainant had issued 24 post dated cheques of ` 6,100 drawn on Indian Bank for the period February 2006 to January 2008. Opposite party again admitted in version complainant had issued 12 post dated cheques from November 2007 to November, 2008. Further admitted that ` 6700 paid on 02.10.2008 to pay instalments. It is also admitted payment of ` 12,200 on 26.03.08. Ext.A4 receipt for ` 6,700, Ext.A5 receipt for ` 12,200 and A6 for ` 6,100 were admitted by opposite party. Opposite party has again admitted the payment of ` 18,300 on 20.02.09. Actually the case of the complaint with respect to payment is proved by the admission of the opposite party itself. The contention of opposite party is that there are irregularity in payments so that a position of the amount from the payment had been made towards penalty as per Clause 7. But opposite party did not prove this contention by adducing any evidence.
Complainant has specific case that all the payment that had caused delay not by the mistake of complainant but by the defect of opposite party by not producing the post dated cheque eventhough there were sufficient balance in the account. Moreover, complainant specifically pleaded that except the payment of November, 2007 where complainant paid the amount with a penalty of ` 600. There was no demand for fine or penalty as far as any other payment is concerned since 2nd opposite party was negligent in producing the cheque on due date. He has even pleaded that 2nd opposite party apologized for the default committed by them for non-production of the cheque. With respect to the default in payment for the months of May, September and November, 2008 complainant pleaded that complainant convinced 2nd opposite party that there was sufficient balance in his account and it was in pursuance of conciliation talk between parties through the mediation of Advocate O.G. Premarajan the amount 18,300 was paid by the complainant on 20.02.09 which was received by opposite party without any default interest. Ext.A2 also produced to prove that there was sufficient amount in his account. Opposite party has not stated any reason for non-production of cheque. Opposite party has no case that they have no post dated cheque with them. They have no case that there was no sufficient amount in the account of complaint. They have nothing to say about the conciliation process. They have no case that they have demanded complainant any fine or penalty at the time of payment. Fine or penalty if not asked to pay at the time of payment how does this fine and penalty above remains acceptable to pay, long after the payment. If that was asked to pay then there the regularly paying consumer in ordinary course would not have kept it as arrears to create a burden in the future. Moreover, complainant has the case that opposite party did not ask for any fine or penalty since it was due to the fault of opposite party for which opposite party has no explanation. Complainant repeatedly pleaded that 2nd opposite party apologized complainant for the default of non-production of cheque but opposite party did not respond to this allegation even in their version. Complainant’s specific allegation is that 2nd opposite party is liable for non-production of post dated cheques. 2nd opposite party never entered in box to adduce evidence. The pleadings of opposite parties left in air neither supported by oral evidence nor documentary evidence. Single document has not been marked on the side of the opposite party. It is a well accepted position that mere pleadings are not evidence. Hence complainants case with respect to the payment of entire loan amount has been definitely proved beyond doubt. Thus we are of opinion that the non-issuance of clearance certificate thereby amounts to deficiency in service on the part of opposite parties.
Ext.A11 reveals that complainant sent notice/Ext.A10 dated 24.04.2010. It was not responded by opposite party. Ext.A12 is the lawyer notice copy calling upon to issue certificate since the entire loan has been repaid and free from any liability. Complainant’s case is that even after Ext.A.12 no clearance certificate has been issued. Complainant alleges that due to the non-issuance of certificate he has suffered a loss of ` 50,000 towards depreciation of the car. The counsel for the complainant argued that private car insurance package policy by National Insurance Company will reveal that for a car exceeding 3 years of age but not exceeding 4 years, the standard depreciation is 40%. By 24.11.09 the age of complainant’s Indica car was only 3 years and 11 months and its value after standard depreciation of 40% is ` 1,94,600. The standard depreciation for a car exceeding 4 years of age is 50%. Thus the complainant suffered a loss of 10% of total value of the car by way of depreciation loss amounting to ` 38,920. Depreciation for the period June, 2010 to July, 2011 when taken into account, complainant argues this would be reasonable if the amount is ` 20,000 under the head depreciation. He has also estimated ` 50,000 for his mental agony. However he has limited his claim for compensation to ` 75,000. Taking in account the ground reality the depreciation in value in accordance with the age cannot be ignored. The schedule of age-wise depreciation of the vehicle shown in private car package policy issued by National Insurance Company Limited shows that the car exceeding 3 years but not exceeding 4 years the percentage of depreciation comes to 40%and to those that of exceeding 4 years it is 50%. So there is substance in the argument of learned consel for the complainant that he has suffered a loss of 10% of the total value of the vehicle. So also in a case like this where clearance certificate has been denied evenafter paying the entire loan amount to the complainant would have suffered much mental pain. Hence he deserves for compensation which we consider an amount of ` 30,000 as compensation will do the justice. Complainant is entitled for an amount of ` 30,000 as compensation. Thus the opposite parties are liable to issue clearance certificate and to pay ` 30,000 as compensation together with a cost of ` 1,000. The issues 1 to 3 are found in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing the opposite parties to issue the loan clearance certificate to the complainant pertaining to loan No.HPA No.CAR 827774 in respect of the vehicle bearing number KL 13 P 6416 and to pay ` 30,000 (Rupees Thirty Thousand only) as compensation together with a sum of ` 1,000 (Rupees One Thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which opposite party is liable to pay interest @ 12% from the date of order. Complainant is at liberty to execute the order after the expiry of 30 days in accordance with the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Letter dated 23.01.06.
A2. Duty certified computerized statement by Vijaya Bank,
Kuthuparamba Branch.
A3. Duty certified computerized statement by Indian Bank, Thalassery Branch.
A4. Cash receipt dated 17.01.08.
A5. Cash receipt daeted 26.03.08.
A6. Cash receipt dated 29.04.08.
A7. Cash receipt dated 20.02.09.
A8. True photocopy of registered lawyer notice.
A9. Postal receipt.
A10. True copy of letter by complainant dated 22.04.10
A11. Courier receipt of A10 dated 22.04.10.
A12. Lawyer notice dated 28.06.10.
A13. Postal receipt.
A14. Letter from 2nd opposite party dated 06.08.10.
A15. Returned cheque drawn on Vijaya Bank, Kuthuparamba branch datd 01.03.08.
A16. Returned cheque dated 01.05.08.
A17. Returned cheque dated 01.09.08.
A18. Letter from opposite party.
A19. Letter dated 04.09.10.
A20. Letter dated 31.10.09 from opposite party.
A21. Letter dated 15.10.08.
A22. Verified photocopy of R.C.
A23. Letter from opposite party dated 04.02.10.
A24. Letter from opposite party dated 04.03.10.
A25. Letter from opposite party dated 08.04.10.
A26. Letter from opposite party dated 05.06.10.
A27. Lawyer notice dated 25.11.09.
Exhibits for the opposite parties
Nil
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
Witness examined for Court
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
