Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case is that the Complainant named Paritosh Roy purchased one Motor Cycle bearing No. WB-64 U/3649 with the financial help of OP i.e. Bajaj Finance Limited vide Loan Agreement No. L2WCOB06792712 and as per terms and condition of loan Complainant paid total EMI to the OP (Annexure-A is the copy of statement of account). On 03.09.19 and 03.03.20 OP illegally imposed fine of Rs.1062/- from the Complainant despite have sufficient balance of the bank account. Complainant several times filed complaint before the OP, thereafter OP sent massage on 26.12.20 and told the Complainant to pay Rs.725/- and take NOC, accordingly Complainant deposited Rs.715/- to the OP through paytm but till today OP did not provide the NOC (Annexure-B & C are the copy of massage and payment receipt). Subsequently, on 18.03.19 Complainant filed written complaint to his Cooch Behar agent but did not deliver the NOC (Annexure-D is the copy of written complaint filed by Complainant dated 18.03.21). On 06.04.21 Complainant further sent written complaint through e-mail before the OP but till today OP did not reply the same (The copy of e-mail is the Annexure-E). The above illegal activities of the OP clearly deficiency in service and the Complainant is suffering mental pain and agony. The cause of action arose on 26.12.20 when the OP demanded of Rs.715/- and on 18.03.21 when the Complainant filed written complaint and it is still continuing. The Complainant therefore prayed for an order and direction the OP to issue NOC in favour of the Complainant and further directed the OP to pay Rs.40,000/- for deficiency in service and mental pain and agony and Rs.10,000/- towards litigation cost.
The OP contested the case by filing written version on his behalf denying each and every allegation against the OP. The defence case in a nutshell is that the Complainant executed the loan agreement after gone through and understood all the terms and conditions of the loan agreement. As per loan agreement the monthly instalment to be paid by the Complainant was Rs.3812/- per month for 18 months. The borrower shall repay the principal amount which was financed and the finance charges and interest in monthly instalments. OP also stated that the Complainant had bounce memo out of these four bounce instalments the Complainant has remitted the bounce charges for the month on 03.09.19 only and the rest bounce charges were remitted unpaid to this OP till 26.12.20. The Complainant has paid only Rs.715/- on 26.12.20 (Annexure-C is the copy of evident). OP submitted that Complainant is defaulter which is evident from Annexure-B & C. Hence the Complaint itself deserves to be dismissed on this mere fact, as the defaulter cannot be termed as a consumer and should not be entertained. OP also stated that Complainant has no any cause of action for filing this complaint against the OP and there is no deficiency in service on the part of the Complainant. The OP has not breached any terms of loan agreement and the Complainant has failed and wilfully neglected to clear other dues towards loan account hence the complaint itself deserves to be dismissed.
The specific allegation and denial thereof by the parties to this case demands for adjudication of the following points.
Points for Determination
- Whether the Complainant is a consumer under the C.P. Act?
- Whether the activities of the OP amounts to deficiency in service?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decision with reasons
Point No.1.
After perusing the entire case record it transpires that the Complainant named Paritosh Roy purchased one motorcycle with the financial help of OP i.e. Bajaj Finance Limited. It is admitted position that the transaction between the Complainant and the OP took place at the time of purchasing by the Complainant and subsequently during the transaction relating to finance by the Complainant with the OP in relation to said vehicle.
The OP did not deny that there was no transaction between the Complainant and the OP. The disputed transaction relates to some financial matter relating to deliver NOC from the OP and accordingly after perusing the entire case record and the pleadings of the parties the Commission comes to the findings that the Complainant is a consumer under the C.P. Act.
So, accordingly point number one is answered in favour of the Complainant.
Point Nos.2, 3 & 4.
All the points have a close nexus with one and other. Therefore, these issues are taken up together for convenience and brevity of discussion. The Complainant in order to substantiate the case adduced evidence by filing evidence on affidavit and filing some documents. Annexure- A being the statement of account where it is specifically cleared that Complainant has paid Rs.715 /- on 26.12.2020 and in the said loan account the remaining balance is left Rs. 878/-. But OP neither deduct the balancing amount and nor issue the NOC in favour of the Complainant and it is still lying in the loan account. So on the part of the OP there is deficiency in service in favour of the Complainant. The agreement does not contain any clause that in the event of default in payment of instalment the OP has any right to refuse to issue the NOC.
The lender has only right to recover only loan amount but has no right to withhold NOC. The OP stated in para-5 of the written version that the OP is always willing to issue NOC subject to payment of other bounds charges as per Annexure-C. Moreover, the OP could not deny that the Complainant sent message to the OP.
So, the Complainant has right to claim NOC from the OP.
The Complainant in order to further substantiate his claim also proved Annexure-A being the statement of account. Annexure-B being the massage of the OP on 26.12.20. OP sent massage to the Complainant where OP declared that paid Rs.715/- and got NOC in the name of the Complainant. Annexure-C being the payment of money receipt issued by the OP on 26.12.20. Annexure-D being the written complaint on 18.03.21. Despite receiving the amount of Rs.715/- which the OP claimed from the Complainant vide text massage.
Although OP submitted in his written version and evidence in chief that the loan account is in dues of Rs.878/- towards non-payment of bounce charges as per the agreed terms and condition of the loan agreement this OP could not provide NOC in favour of the Complainant.
After perusing the case record it is found that the Complainant categorically affirmed the allegation of non-issuing the NOC, despite the alleged amount is still lying in the loan account of the Complainant.
Regard being also had to the previous observation, the Complainant paid the bounce charges as per next massage of the OP on 26.12.20. So despite sending the written complaint on 18.03.21 and other on 06.04.21 through E-mail before the OP, but OP did not reply the same.
So, the misdeed on the part of the OP should reasonably be considered to have been proved his deficiency in service.
The aforesaid misdeed of the OP as proved by the Complainant reasonably to issue NOC in favour of the Complainant. The averment made and the evidence led by the Complainant are duly proved to establish that he had sufficient ground to issue NOC in favour of the Complainant.
Ld. Defence Counsel on behalf of the OP argued that they have no knowledge of alleged massage dated 26.12.20 and they had not sent any massage as alleged stated in the complaint. Annexure-C is to show that transaction receipt given by OP of the amount Rs.715/- paid by Complainant. This is the computer generated receipt and does not require physical signature.
The OP also argued that as on 17.11.21 the loan account was dues of Rs.878/- towards others dues accrued due to non-payment of bounce charges. But on 26.12.20 the remaining balance amount is lying in loan account of the Complainant as per Annexure-A of the statement of account filed by the Complainant.
The said clause does not come to the help of the OP to refuse issuance of NOC in favour of the Complainant in as much as OP admitted pleading and evidence.
In this regard OP cited some decisions of Hon’ble State Consumer Disputes Redressal Commission of Tamil Nadu in 2004 where it has clearly stated that in contracted service Complainant availed loan but payment of instalments had been defaulted. So, the vehicle was seized and thereafter sold in auction. There was no deficiency in service.
Another Judgment passed by Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission in the year 1999 where it stated that the Complainant availed bank loan but default in payment of instalments the vehicle was seized. But there was no deficiency in service on the part of the OP bank.
Lastly, OP cited one decision passed by Hon’ble State Consumer Disputes Redressal Commission of Rajasthan in 1995. It was reported in 1995 Vol-III CPJ 513. Complainant filed a case alleging breach of contract for which remedy may in Civil Court and not under the Consumer Protection Act, 1986. So, the case deserves to be dismissed.
But the above Judgements are not applicable in this case. So these Judgements of the OP do not consider in this complaint case. The argument does not mention any clause that in case of default in payment of instalment the OP has not issued NOC. The above Judgments referred by OP do not relate to the issuance of NOC. So OP has no right to withhold the NOC. Moreover, the OP could not deny that the Complainant sent massage to the OP. So, the Complainant has every right to claim the NOC for the OP.
Thus, after assessing the pleadings of both the parties as well as the evidence on record vis-à-vis the observation made herein above in foregoing paragraph this Commission is of the view that there was deficiency in service in regard to the disputed transaction between the parties.
Accordingly, the Complainant is entitled to get the relief as prayed for.
So Point Nos. 2,3 & 4 are therefore decided on behalf of the Complainant positively.
Consequently, the complaint case succeeds on contest without cost.
Hence, it is
Ordered
That the complaint case No. CC/25/2021 be and the same is allowed on contest without cost.
The OP is directed to issue NOC in favour of the Complainant subject to payment of due EMI. The OP is further directed to pay Rs.10,000/- for deficiency in service and mental pain agony and Rs.5,000/- as per litigation cost. The OP company is directed to issue NOC in favour of the complainant and to pay Rs.15,000/- in favour of the Complainant within one month from the date of passing the Final Order failing which the entire awarded sum shall carry an interest @ 6% per annum to be borne by the OP.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
