COMPLAINT FILED:28-05-2009 <br /> DISPOSED ON: 13-10-2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 13TH OCTOBER 2009<br /> <br /> <br /> PRESENT :- SRI. B.S.REDDY PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> COMPLAINT NO.1219/2009<br /> <br /> <br /> COMPLAINANTS <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> 1)Lakshmi D.Setty<br /> W/o.K.Devandra Setty,<br /> Aged 49 Years,<br /> <br /> 2) K.Devandra Setty<br /> s/o.Late Muddarangappa,<br /> Aged 52 Years <br /> Both are R/at :<br /> No:575/1, 1st Floor, 8th Main,<br /> II Phase, Girinagar,<br /> Bangalore – 560 085.<br /> <br /> Advocate – <br /> Sri.B.V.Malla Reddy<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1)The Manager,<br /> Popular Motor Corporation,<br /> 123/107, 2nd Main, 7th Block,<br /> Jayanagar, Bangalore –82<br /> <br /> 2) The Manager,<br /> Bajaj Auto Finance Ltd,<br /> No.29, 1st and 2nd Floor,<br /> ‘Augraha’, 12th Cross, S.P.Extension, Palace Gutahalli Main Road,<br /> Malleshwaram – 560 003.<br /> <br /> Advocate – Sri.Venkataramana<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed the complaint u/s. 12 of the C.P. Act of 1986 seeking direction to Opposite Parties (herein after called as OPs) to refund the excess amount of Rs.2,670/- drawn from Bank account of the complainant No.2 from 8-06-2008 to 04-01-2009 with interest at 18% and to rectify EMI amount from Rs.1,734/- to 1,289/- and damages of Rs.5,000/- with costs on an allegations of deficiency in service on the part of the OP.<br /> <br /> 2. The case of the complainants is that the complainants intended to purchase bike Bajaj XCD model in the name of the complainant No.1 from OP No.1 for a sum of Rs.49,000/-. OP2 came forward to advance loan for purchasing the vehicle. The complainants availed loan of Rs.29,000/- from OP No.2 for purchasing the vehicle and paid a sum of Rs.20,000/- by cash to OP No.1. OP No.2 directly paid the amount of Rs.29,000/- to OP No.1 for purchasing of said motor cycle and OP No.2 fixed an EMI of Rs.1,289/-per month (including flat interest 03.33% p.a.) and the complainants have to pay the said EMI for the tenure of 24 months. OP No.1 delivered the motor cycle on 16-04-2008 with registration No:KA-05-HF-1697, registered in the name of complainant No.1 and the complainant No.2 is none other than the husband of the complainant No.1 and he is the surety to obtaining the loan by complainant No.1 from the OP No.2. <br /> <br /> 4. The EMI fixed is to be paid through Electronic Clearing System (ECS) from the Corporation Bank Account of the complainant No.2 and the instalment has been started from 08-06-2008 for Rs.1,289/- per month. Instead of Rs.1,289/- per month the OP No.2 has claimed Rs.1,734/- from the Bank account of the complainant No.2 and there by collected excess amount of Rs.445/-per month for first and second instalment. Thereafter the complainants came to know about the said fact and immediately they approached OPs and explained about the excess amount collected from the bank account of the complainant No.2. Thereafter complainant paid third and fourth EMI of Rs.1,289/- personally and OP assured that they rectify the said mistake. Even thereafter OPs collected excess amount of Rs.445/- per month from bank account of complainant No.2 from fifth to eighth EMI and thereafter the complainant No.2 stopped the payment by issuing letter dated 29-03-2009 to the Banker. From the day one excess debited, the complainants have approached several times to the OPs for rectification of EMI from Rs.1,734/- to Rs.1,289/-. The OP did not rectify their mistake and finally complainants issued notice on 04-03-2009 the OPs did not take action for rectifying the mistake. Inspite of repeated request and reminders OPs have not taken any steps for rectifying their mistake and same amounts to deficiency of service on the part of the OPs. Thus the complainants claimed for recovery of the excess amount drawn with interest and for damages. Complainant produced documents along with complaint.<br /> <br /> 5. OP No.1 inspite of service of notice failed to appear without any sufficient cause as such OP No.1 is placed exparte. <br /> <br /> 6. OP No.2 filed the version admitting the fact that complainants availed finance of Rs.29,000/- for the purchase of Bajaj XCD. The monthly instalment to be paid is Rs.1,734/-. The contract period is 24 months from 05-06-2008 to 05-05-10. The loan proposal was punched and booked with loan amount of Rs.39,000/- instead of Rs.29,000/-. Hence system has calculated as Rs.1,734/- instead of Rs.1,289/-. ECS monthly issued by complainants for 7 instalments got cleared with Rs.1,734/- instead of Rs.1,289/-. Thus the complainants surplus amount of Rs.3,115/- is with OP. OP has rectified their mistake and loan proposal is regularized with loan amount of Rs.29,000/- and EMI of Rs.1,289/-. OP has informed the complainants regarding the loan contract as regularized. The complainants have stopped payment with effect from March’2009 as such from March’2009 OP has not received EMI amount from the complainants OP is creditor and complainant is debtor of OP the relation between the debtor and creditor is in existence. Thus the complainant is not a consumer as per C.P. Act. There is no arbitration clause in the agreement as such matter in dispute is required to be referred to arbitrator at Pune. As such this Forum is not having jurisdiction to try and entertain the case. There is no deficiency in service on the part of the OP, a direction can be issued to complainants to make payment of Rs.4,619/- the instalment due and to pay future instlament regularly. <br /> <br /> 7. The complainant No.1 filed affidavit to substantiate the complaint allegations and the legal office of OP No.2 filled affidavit in support of the version filed.<br /> <br /> 8. After perusing the pleadings, the documents produced and the affidavit filed by way of evidence and after hearing on both sides the following points arise for our consideration :-<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 9. Our findings on :-<br /> <br /> Point No.1:- Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N <br /> <br /> 10. It is not in dispute that the complainant No.1 purchased two wheeler a bike bearing registration No.KA-05-HF-1697 by availing loan of Rs.29,000/- from OP No.2. As per the terms and conditions of advancing the loan monthly EMI fixed is Rs.1,289/-. Complainant No.2 is the husband of complainant No.1. EMI fixed was to be paid through Electronic Clearing System (ECS) from the Corporation Bank account of the complainant No.2. The first instalment starting from 08-06-2008 and the last instalment payable is by 05-05-2010. Instead of EMI at Rs.1,289/- OP No.2 has claimed Rs.1,734/- from the bank account of complainant No.2 and collected excess amount of R.445/- per month. First and second instalments were collected at Rs.1,734/- per month and complainant No.2 come to know the excess amount collected, they personally approached OP No.2 and requested to correct the EMI amount as Rs.1,289/- instead of 1,734/-. Third and fourth instlaments paid by them personally as OPs under taken to rectify the mistake. Even thereafter OP No.2 continued to collect the excess amount of Rs.445/- per month from account of complainant No.2 up to eighth EMI. Thus in all OP No.2 collected excess amount of Rs.445/- of seven instalments, total excess amount collected is Rs.3,115/-. Thereafter the complainant issued notice dated 04-03-2009 to rectify that mistake otherwise they would stop payment of EMI. The said notice was received by OPs on 09-03-2009. Inspite of receipt of the notice OP No.2 has not corrected the mistake. As a result, complainant No.2 issued letter dated 29-03-2009 requesting his banker Corporation Bank to stop payment. Thereafter EMI has not been paid. <br /> <br /> 11. OP No.2 admitted the fact of mistake committed in drawing the excess amount of Rs.445/- per month for seventh instalment i.e., for the month of June to December’ 2008 and January & February’ 2009. In the defence version it is stated that the loan proposal of the complainants was wrongly punched and booked to the loan amount of Rs.39,000/- instead of Rs.29,000/- and hence system has calculated EMI as Rs.1,734/- instead of Rs.1,289/-. Now they have rectified that mistake and monthly EMI is fixed at Rs.1,289/-. The very fact of committing mistake in calculating the EMI is gross negligence on the part of the OP No.2. The same amounts to deficiency in service. There is no merit in the contention that the complainant is not a consumer and the relation between the complainants and the OP is only debtor and creditor. Even the defence that since as per the agreement the dispute is to be referred to arbitrator at Pune as such this Forum has no jurisdiction is also not a valid defence. The relief claimed by the consumer by approaching this Forum is by way of additional relief available to him apart from other remedies available. Merely because there is an arbitration clause in the agreement it cannot be said that the matter is to be referred to arbitrator at Pune. <br /> <br /> 12. The excess amount collected by OP No.2 in seven instalments is Rs.3,115/-. The complainant have not paid the instalment from March’2009 as such OP No.2 is to adjust that amount of Rs.3,115/- towards the instalments due from the complainants. The complainants have to pay the balance instalments at the agreed rate of Rs.1,289/-. <br /> <br /> 13. OP No.2 would have rectified that mistake at the earliest when the complainants approached after they came to know about excess amount drawn while getting first and second instalment. Even after the complainants paid the third and fourth instalment personally and requested OP No.2 to rectify that mistake OP No.2 has not corrected the same further instalments were recovered by collecting excess amount of Rs.445/- per month till February’2009. Even the complainants issued notice dated 04-03-2009 and the same was received by OP No.1 & 2 on 09-03-2009 inspite of receipt of the notice OP No.2 had not rectified the mistake. Thereby compelled the complainants to stop payment of further instalments and made them to approach this Forum seeking necessary relief. It appears after the complaint is lodged OP No.2 has rectified that mistake. However by the hostile attitude of the OP No.2 the complainants were made to approach this Forum. Under these circumstances we are of the view that the excess amount drawn is to be adjusted towards the amount due from complainants. OP No.2 has already rectified the mistake by fixing the instalment at the rate of Rs.1,289/- per month. The complainants have not proved any loss suffered on account of the negligence of Op No.2 as the excess amount drawn is adjusted towards the amount due from them as such they are not entitled for any damages. Accordingly, we proceed to pass the following:<br /> <br /> O R D E R<br /> The complaint filed by the complainant is allowed in part. <br /> <br /> OP No.2 is directed to adjust an amount of Rs.3,115/- the excess amount collected towards amount due from the complainants. In view of nature of dispute no order as to costs. <br /> <br /> This order is to be complied within four weeks from the date of its communication. <br /> <br /> Send copy of this order to both the parties free of costs. <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 13th day of October 2009.) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> NRS<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />