BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 05/11/2010

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 526/2010

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are as follows :-

In May 2010, the complainant booked a brand new car with the 3^rd opposite party. The 1^st opposite party offered financial assistance to purchase the car through their agent the 2^nd opposite party. The 1^st opposite party sanctioned a loan of Rs. 4,80,000/-. Thereafter, the 2^nd opposite party received Rs. 26,115/- from the complainant allegedly towards processing charge. An amount of Rs. 35,000/- was paid to the 3^rd opposite party by cheque towards initial payment of the value of the vehicle. Thereafter, the complainant decided not to purchase the vehicle and not to avail the loan. However, the 1^st opposite party collected two instalments of Rs. 13,515/- each from the complainant's bank account with HDFC bank by using post dated cheques entrusted with the 2^nd opposite party for repayment of loan amount in case loan is availed. The opposite parties failed to refund the installments, processing charge and Rs. 35,000/- the initial payment respectively, in spite of repeated requests. The complainant is entitled to get refund of the above amounts with interest together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :

Based on the loan application submitted by the complainant through the 2^nd and 3^rd opposite parties, the 1^st opposite party sanctioned a loan of Rs. 4,80,000/- to the complainant. The cheque for Rs. 4,80,000/- was issued on 31-05-2010 in favour of the 3^rd opposite party. Accordingly, the 1^st opposite party collected two instalments of Rs. 13,515/- each by presenting post dated EMI cheques towards loan account of the complainant. As per Clause 10 (a) to (d) of the loan agreement the financier is not responsible for delay in delivery of the vehicle. The complainant had not given any loan cancellation request or information regarding non-acceptance of delivery of the vehicle to the 1^st opposite party till 01-08-2010, the date of receipt of the notice issued by the complainant. On receipt of the cancellation request, the 1^st opposite party requested the 3^rd opposite party to refund the amount with interest. The 1^st opposite party received Rs. 4,80,000/- by cheque dated 07-10-2010. The 1^st opposite party had collected Rs. 3,000/- towards the processing charges of the loan account and collected Rs. 13,515/- towards advance instalment amount from the complainant. The complainant is bound to pay an amount of Rs. 5,000/- towards the loan cancellation charges and interest @ 15% for Rs. 4,80,000/- from 30-05-2010 to 06-10-2010. The 1^st opposite party is ready to refund Rs. 16,515/- the balance amount after deducting the above amounts. The 1^st opposite party duly intimated their readiness to pay the said amount to the complainant. There is no deficiency in service on the part of the 1^st opposite party.

3. The defense of the 3^rd opposite party is as follows :

The complainant had paid an amount of Rs. 25,000/- by way of cheque No. 269390 dated 27-05-2010 drawn on HDFC bank. The same was returned on 27-05-2010 due to insufficiency of funds in the bank account. The 1^st opposite party paid an amount of Rs. 4,80,000/- to the 3^rd opposite party vide cheque dated 31-05-2010. The amount has been returned to the 1^st opposite party on 05-10-2010 in view of cancellation of booking of the car by the complainant. The 3^rd opposite party is not liable to pay any amount as claimed by the complainant. The complaint is liable to be dismissed with costs of the 3^rd opposite party.

4. Despite service of notice of this complaint, the 2^nd opposite party remained absent during the proceedings for their own reasons. The complainant was examined as PW1 and Exts. A1 to A5 were marked on his side. Witness for the 1^st opposite party was examined as DW1 and Exts. B1 to B6 were marked on their side. Exts. X1 and X2 were also marked. Heard the counsel for the contesting parties.

5. The points that arose for consideration are as follows :

1. Whether the complainant is entitled to get refund of Rs. 35,000/- from the 3^rd opposite party?

2. Whether the 1^st and 2^nd opposite parties are liable to refund processing charge of Rs. 21,115/- after deducting Rs. 5,000/- out of the total amount of Rs. 26,115/- with interest?

3. Whether the 1^st and 2^nd opposite parties are liable to refund the 2 instalments of Rs. 13,515/- each with interest?

6. Point No. i. :- According to the complainant, he paid a sum of Rs. 35,000/- to the 3^rd opposite party by cheque dated 22-06-2010 drawn on HDFC bank towards initial payment of the value of the vehicle. During evidence, the complainant who was examined as PW1 categorically deposed that the cheque issued by the complainant for Rs. 25,000/- bounced. Moreover, the complainant stated that there is no deficiency in service on the part of the 3^rd opposite party. It is pertinent to note that the complainant has not stated the factum of dishonour of the cheque either in his complaint or in the proof affidavit. Not to mention the grievance of the complainant only ruse to cover up the bouncing of the cheque which this Forum cannot appreciate in law.

7. Point Nos. ii. & iii. :- The undisputed issues in the complaint are as follows :

1. The complainant availed himself of a loan amount of Rs. 4,80,000/- from the 1^st opposite party.

2. The loan amount was issued on 31-05-2010 in favour of the 3^rd opposite party.

3. The 1^st opposite party collected 2 EMIs of Rs. 13,515/- each from the complainant's bank account.

4. On 01-08-2010, the complainant requested the 1^st opposite party to cancel the loan transaction.

5. The 2^nd opposite party collected the amounts as per Exts. X1 and X2 cheques.

6. The 3^rd opposite party returned the loan amount to the 1^st opposite party on 05-10-2010.

8. Admittedly, the complainant availed a vehicle loan of Rs. 4,80,000/- from the 1^st opposite party. The 1^st opposite party forwarded the amount to the 3^rd opposite party on 31-05-2010. At the request of the complainant on 01-08-2010, the 1^st opposite party cancelled the loan transaction and they managed to retrieve the loan amount on 07-10-2010. Naturally, the complainant is liable to pay interest for the loan amount from 31-05-2010 to 07-10-2010. Since the interest rate is not stated in Ext. B2 the loan agreement, we fix it at 12% p.a.

9. According to the complainant, he paid a sum of Rs. 35,000/- and 26,115/- to the 2^nd opposite party on 22-06-2010 and 27-05-2010 respectively evident from Exts. X1 and X2 uncontroverted.

10. According to the 1^st opposite party, since the complainant failed to intimate the cancellation of the loan transaction in time as per the terms in Ext. B2 loan agreement, they collected 2 instalments of Rs. 13,315/- each from the bank account of the complainant. However, the 1^st opposite party in their version expressed their willingness to refund the amounts after deducting the loan cancellation charges of Rs. 5,000/-. The complainant is entitled to collect the amounts form the 1^st opposite party with interest after deducting Rs. 5,000/-. The absence of the 2^nd opposite party in this Forum, in spite of service of notice amounts to acceptance of their responsibility irrefutably.

11. The due execution of law in this matter calls this Forum to order as under :

1. The complainant shall pay to the 1^st opposite party interest for the loan amount of Rs. 4,80,000/-from 31-05-2010 to 07-10-2010 @ 12% p.a.

2. The 2^nd opposite party shall refund the amounts as per Exts. X1 and X2 to the complainant with interest @ 12% p.a. from the date of receipt till realisation after deducting Rs. 5,000/- towards the cancellation charge of the loan transaction.

3. The 1^st opposite party shall refund the 2 instalments of Rs. 13,315/- each to the complainant with 12% p.a. from the date of each receipt till realisation.

4. The 1^st and 2^nd opposite parties are free to settle the issues between them if any, as per law.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of July 2012

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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