By. Smt. Renimol Mathew, Member:

The complaint is filed under section 12 of the Consumer Protection Act to get compensation for the deficiency of service by opposite parties.

2. Brief of the complaint:- The complainant availed a loan of Rs.2,49,000/- from the 1^st opposite party. As per the terms of agreement the installment amount of Rs.8,630/- is to be paid on or before 15^th day of every month. On 15.03.2017 the complainant deposited money in his bank account at South Indian Bank, Pulpally at 10.30 am, but before that the 1^st opposite party send the cheque for collection and the cheque was dishonoured as ''funds insufficient'' without detailed verification and processing by opposite party No.3. Later 1^st opposite party made phone calls several times with an intention to insult the complainant and messages were sent to the complainant demanding for penal interest of Rs.53/-. Aggrieved by this act of opposite party complainant approached before this Forum.

3. On receipt of notice opposite party No.1 entered in appearance and written version filed.

4. Brief facts of version of opposite party No.1:- Opposite party No.1 admitted the loan transaction with the complainant. The repayment of loan were fixed at 35 monthly installments with an agreement value of Rs.2,96,420/-. As per agreement installments were to be paid on or before 15^th of every month. As per the agreed terms it is the complainant, himself who has solely made arrangements with his bank to transfer the loan repayment installment amount to the 1^st opposite party's account, on all its due dates by availing the ACH facility provided by his bank only and the first opposite party has nothing to do with the same as alleged. The 1^st opposite party is legally entitled to collect cheque return charges from the complainant as and when the cheques are returned and the contract between the complainant and the opposite party No.1 empowers them to do so. Also opposite party No.1 is empowered to collect additional finance charges for the delayed payment. It is denied by the opposite party that the complainant is having right to deposit the repayment installment amount in bank till next day morning (12 AM) of the due date and the first opposite party made phone calls several times with an intention to insult the complainant and messages were sent daily by intimating about penal interest etc.. The 1^st opposite party were not at all made any such attempt to insult the complainant as alleged in the complaint.

5. Opposite party No.1 further stated that this complainant is a chronic defaulter of the loan repayments and the subject matter of the loan was purchased by the complainant solely for commercial purpose and this complaint is filed to escape from the legal liability towards 1^st opposite party and there is no deficiency in service or unfair trade practice occurred on the part of the opposite party and the same is liable to be dismissed.

6. On receipt of notice, opposite party No.2 not appeared before the Forum and set ex-parte. Subsequently as per the Order in I.A 261/2017 supplemental opposite party No.3 was impleaded. On receipt of notice opposite party No.3 appeared before the Forum and written version filed.

7. Brief facts of version of opposite party No.3:- Opposite party stated that complainant is maintaining a savings bank account with the opposite party No.3 bank bearing Account No.0260053000011501. The allegation in 4th paragraph that this opposite party had returned the cheque issued by the complainant without detailed verification and processing of his account, is totally false, absolutely baseless and contrary to facts. It is admitted by the complainant that the cash was deposited in his bank account maintained with this opposite party only at 10.30 A.M on 15.03.2017, the cheque issued by the Complainant in favour of other opposite party was presented for payment prior to the above cash remittance in the account of Complainant. When a cheque is presented for payment, it is the duty of the opposite party being the payment banker to verify the account of the drawer of cheque and make payment if sufficient fund is provided in the account or to immediately return the cheque, if adequate fund is not provided in the account. In the instant case, the subject cheque was presented on 15.03.2017 at 10 A.M, prior to the remittance of cash in the account and so after verification of Complainant's account, since there was no sufficient credit balance, the cheque was duly returned with return memo. As a payment banker, this Opposite party is legally bound to immediately return any cheque present for payment, in case sufficient fund is not available in the account of drawer of cheque. Further, when an account holder draws a cheque in his account, he is 'duty bound to provide sufficient balance in his account, so as to enable the payment banker to honour the cheque as and when it is presented for payment. In the instant case, the Complainant having failed to provide sufficient balance either at the time of drawing of cheque or prior to the presentation of same for payment, is trying to illegally pass on the responsibility on this opposite party and make undue enrichment. Opposite party No.3 further submitted that there is no allegation or plea of deficiency of service against them and this complaint is not maintainable against this opposite party.

8. Complainant filed proof affidavit and examined as PW1 and Ext.A1 to A3 documents were marked. Ext.A1 is the Finance Scheme given by opposite party No.1. Ext.A2 is the Transaction details given by opposite party No.3. Ext.A3 is the Receipt given by opposite party No.1. Opposite party No.1 and 3 were examined as OPW1 and OPW2. Ext.B1 Agreement is admitted by complainant, it is confronted and marked as Ext.B1. Ext.B2 is the Copy of Power of Attorney of OPW1. Ext.B3 is the Copy of Statement of Account. Ext.B4 is the Copy of ACH Form.

9. On considering the complaint, versions and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

10. Point No.1:- PW1 deposed that on 15.03.2017 at 10.30 am he has deposited Rs.9,000/- in his bank account. But as per the evidence of OPW2 the cheque issued by the complainant in favour of 1^st opposite party was presented for payment prior to the above cash remittance in the account of the complainant. When a cheque is presented for payment make payment if sufficient fund is provided in the account or to immediately return the cheque, if adequate fund is not there in the account. In this case cheque was presented on 15.03.2017 at 10 am ie prior to the remittance of cash in the account after verification since there was no sufficient credit balance, the cheque was duly returned. Opposite party No.1 contented that as per the stipulations of loan agreement installment is not paid in time same attracts additional penal charges, in case of dishonour of cheques they are entitled to collect cheque return charges.

11. In the present case it is the complainant himself who has solely made arrangements with his bank to transfer the loan installment amount to the opposite party No.1 on all its due dates by availing ACH facility provided by his Bank and the same is an internal arrangement between the complainant and his bank and the financier has nothing to do with the same. Here opposite party No.1 presented the cheque for collection at 10.00 am itself. Complainant deposited the amount by 10.30 am of the due date. Admittedly sufficient balance was there in the account of the complainant from 10.30 am onwards. Opposite party No.1 failed to give proper clarification for the above said demand for penal interest.

12. On going through the entire evidence and records we opine that opposite party No.1's claim for the penal interest of Rs.53/- on the ground of delayed payment on 15.03.2016 is not at all justifiable that there is sufficient funds in complainant's account at 10.30 am on wards. Hence opposite party No.1 is deficient in providing proper service to the complainant. Hence complainant is entitled to get cost and compensation from opposite party No.1. Since there is no prayer against other opposite parties, No Order against opposite party No.2 and 3.

13. Point No.2:- Since the Point No.1 is found against the opposite party No.1, they are liable to pay cost and compensation to the complainant. Point No.2 is decided accordingly.

In the result, the complaint is partly allowed and opposite party No.1 is directed to pay Rs.1,500/- (Rupees One Thousand and Five Hundred) as compensation and Rs.1,000/- (Rupees One Thousand) as cost of the proceedings to the complainant within 30 days from the date of receipt of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 21^st day of December 2017.

Date of Filing: 17.04.2017.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

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PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Joseph. P. J. Business.

Witness for the Opposite Parties:-

OPW1. Devananth. Branch Manager, Mahindra Finance, Bathery.

OPW2. Febin Rappai. Manager, South Indian Bank, Pulpally Branch.

Exhibits for the complainant:

A1. Finance Scheme Details.

A2. Transaction Details.

A3. Receipt.

Exhibits for the opposite parties:-

B1. Loan Agreement. Dt:19.06.2015.

B2. Copy of Power of Attorney.

B3. Copy of Statement of Account.

B4. Copy of Submission of ACH Form.

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PRESIDENT, CDRF, WAYANAD.

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