By Smt.C.S. Sulekha Beevi, President.
1.Facts.
Complainant is the registered owner of Trax Cruier Euro 11 bearing registration no. KL.10Z- 670 which is plied for earning his livelihood. On 25.05.2006 he availed a loan of Rs.3,50,000/- upon the vehicle from first opposite party. As per the repayment chart complainant had to pay 46/- EMI of 9,100/- and one installment of Rs.8400/-. The total repayment was thus calculated and shown as Rs.4,27,000/- including interest. Complainant also paid Rs.36000/- towards insurance premium as directed. The date of last installment shown in chart was 20.03.2010. He repaid more than the amount shown in the chart even before the due date. On 04.03.2010 he paid Rs.25,300/- towards the entire balance. When complainant requested for hire purchase clearance letter first opposite party refused the same demanding further amount. At the time of granting the loan first opposite party had received two blank cheque leavs and photocopy of the document of the property
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owned by complainant, its tax receipt and also the duplicate key of the vehicle. On 10.02.2010 first
opposite party issued a notice demanding further amount , to which the complaint has send reply denying any further liability. Complainant alleges deficiency and hence this complaint.
2. First opposite party filed version admitting the loan transaction. It is submitted that the vehicle is used for commercial purpose and therefore complainant is not a consumer. The agreement executed between the parties contain a clause for arbitration and therefore the Forum has no jurisdiction to try the dispute. The terms and conditions of the loan are set out in the agreement .As per the terms the complainant has to repay Rs.4,63,000/- in 47 installments commencing from 25.05.2006 and ending on 21.03.2010. He has to pay the EMI within21st of every month. On failure he has to pay additional finance charges(AFC) @ of 36%. The complainant was not prompt in paying the installments. He remitted the installments with delay in October 2006, July 2007, February 2009, March 2009, April 2009, May2009, July 2009, September 2009, and October 2009 .He has not paid monthly installment of September2008.As per the account statement he is liable to pay further sum of Rs.5493.39+3032.29=8525.68 as on 4.06.2010. It is correct that complainant has paid Rs.25,3000/- on 04.03.2010.The other allegations that opposite party received blank cheque leaves and other documents are denied as false. Without clearing the entire balance opposite party is not bound to issue the clearance letter. That there is no deficiency.
3. Second opposite party filed version stating that the endorsement in the Registration Certificate stands in the name of first opposite party .That complainant has not so far made any application along with necessary documents. That the dispute is between the financier and borrower only.
4. Evidence consists of the affidavit filed by complainant and Exts. A1 to A5 marked for complainant. First opposite party filed counter affidavit and Ext B1 to B4 marked for first opposite party. No evidence adduced for second opposite party.
The allegations of deficiency are leveled against first opposite party alone. The complaint is resisted by first opposite party contending that complainant has to pay AFC of RS.8525.68/- as on 04.06.2010. Ext B2 is the copy of the agreement showing the terms and conditions and the repayment schedule. It shows that complainant is bound to pay AFC @36% in case of default. The due date for EMI is 21st of each month. The loan availed is Rs.3,50,000/- .Adding the interest of Rs.77,000/- the amount to be repaid is contended by opposite party to be Rs.4,63,000/-.In Ext B3 notice issued by opposite party on 10.02.2010 the AFC demanded is Rs.36,317/- . Ext B4 is
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the account statement giving details of AFC. The copy of the account statement is not entirely as per Bankers Book of Evidence Act (as amended) . The certificate required under Sec.2A of Bankers Book Evidence Act is merely signed but does not contain the seal of the Bank or the details of the person who has signed the print out. Ext. B4 is therefore not reliable. On perusal of Ext .B4 it is seen that opposite party has collected AFC charges even if the amount is paid within due date. To this, the counsel for opposite party explained that when the amount is paid after banking hours ,one day delay is accounted for AFC. This explanation is not acceptable to us. If the bank collects the amount after banking hours then bank is bound to give credit on the same day itself. Ext. A5 receipts issued to the complainant does not specifically show that it was paid after banking time. So it is clear that the calculation of AFC charges is wrong as the number of delays include the days inserted contending that the amount was received after banking hours. The interest is charged for 47 months without any deduction for the payment made for each month. Opposite party has not apportioned the payment received to the penal interest , which if any, already outstanding .Further although it is shown in Ext B2 agreement and Ext B4 account statement that the amount to be repaid is Rs.4,63,000/- ,when adding the total interest charged(77000/- ) to the loan availed the amount to be repaid would only be Rs.4,27,000/-. Insurance amount was collected from the complainant separately . Complainant has repaid more than Rs. 4,27,000/-. It is explicit that the account submitted by opposite party includes hidden charges. Opposite party has no case that any amount is outstanding towards principal or interest. Only AFC is claimed. We, therefore are of the view that complainant is not entitled to pay any more amount towards the loan. One of the conditions seen stated in Ext. B2 agreement is that opposite party has to issue monthly statement of interest accrued and out standing to the borrower every month. This condition has not been complied by opposite party. If monthly statements are issued to the consumer it would alert about the actual amount due as interest and principal. Not issuing the clearance certificate by demanding illegal charges is deficiency on the part of opposite party. We find first opposite party deficient.
In the result we allow the complaint and order opposite party to issue hire purchase termination letter to the complainant in regard to the vehicle No. KL.10 Z/670 within three weeks from the date of receiving copy of this order. Failing which on the request made by the complainant a copy of this order will be communicated to second opposite party (R.T.O) who on receiving the copy of the order shall cancel the endorsement in the R.C. of the vehicle standing in favor of first opposite party. First opposite party is restrained form using the signed blank cheque leaves and
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documents in any manner. We make no order as to costs.
Dated this 17th day of September, 2011.
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN,
MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to Ext. A4
Ext. A1 : Copy of Repayment Schedule dated on 25/05/2006 to 21/01/2008
Ext.A2 :Duplicate Copy of R.C. Of Vehicle Kl-10-Z 670
Ext.A3 :Lawyer notice issued to complainant by opposite party dated 10.2.2010
Ext.A4 :Lawyer notice issued to opposite party by complainant dated 05/03/2010
Ext.A5 (s) :Original Copy of Receipt dated 16.05.2006 onwards
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 to Ext. B4
Ext.B1 :Copy of Registration details dated 29/06/2007
Ext. B2 :Carbon Copy of Loan Agreement dated 25/05/2006
Ext.B3 :Photocopy of Legal Notice given to complainant by Opposite party dated 10.02.2010
Ext.B4 : Copy of Statement of Account dated 04/06/2010
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN,
MEMBER E. AYISHAKUTTY, MEMBER
