DOF 7.11.2008
DOO.15.12. 2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Smt.M.D.Jessy: Member
Dated this, the 15th day of December 2010
C.C.No.267/2008
Nazar Malandy,
Malandy House,
Edakkad,
P.O.Muzhappilangad. Complainant (Rep. by Adv.K.Ranjith)
The Manager,
Tata Motor Finance,
Kannur.
(Rep. by Adv.M.Preman) Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite party to handover No Objection certificate and duplicate key of the vehicle together with compensation of ` 55,550/- along with cost.
The brief facts of the case of the complainant are as follows: The complainant availed car loan for his Tata Indica Diesel Car bearing No.KL.13.P.166 from the opposite party on 10.10.2005. Complainant agreed to discharge the loan amount in 35 installments. The total loan amount was ` 2, 19,500 including the finance charge ` 19500. Monthly installment was ` 6250. Complainant handed over 20 cheque leaves as security to the opposite party. Opposite party informed the complainant on 11.11.06 the cheque No.252306 was returned with an endorsement that “other reason”. Opposite party further intimated to pay ` 1750 as collection charge of the dishonoured cheque and the cheque amount in cash. The complainant paid ` 1750/- to the opposite party. Later complainant learnt that the cheque No.252306 was not dishonoured and complainant asked to return the amount he has paid but refused to return the same. On 11.5.07 the opposite party again intimated the complainant that two cheques bearing No.252312 dt.11.5.07 and 252313 dt.11.6.07 are dishonoured for the reason of insufficiency of funds and directed the complainant to pay the amount in cash. The complainant approached the opposite party and told them not to present the cheque in bank since he has already closed their account and gave two new cheques No. 29921 and 29922 of Dhanalakshmi Bank, Thalassery. The opposite party presented the two chques and received the amount on 28.6.07. Now the opposite party demanding ` 3800/- as collection charges and other expenses. The opposite party misused the cheques without complying the direction of the complainant since the opposite party threatened that they will not return the duplicate key and NOC if the amount is not paid. So complainant paid `3800 to the opposite party. But the opposite party did not return the duplicate key and No objection Certificate to the complainant. The complainant discharged the entire amount on 8.1.08. As per the terms and conditions of agreement the opposite party is liable to return the NOC and duplicate key immediately after the discharge of the loan installment. Though the complainant approached the opposite party so many times and asked to return the same opposite party did not give the certificate and the key. Hence the complainant sent lawyer notice on 10.9.08. Opposite party neither comply the notice nor issued any reply. The complainant is a business man and the inconsiderable attitude of the opposite party caused much mental agony and pain to the complainant. He assess the compensation to the tune of `50000 and an amount of `5550 to be paid as an excess amount levied by the opposite party. The complainant has no other way except approaching the Forum for the remedy. Hence this complaint.
In pursuance to the notice opposite party entered appearance and filed version denying the allegation of the complainant. The brief facts of the contention of opposite party are as follows:
The complainant availed car loan from opposite party on 10.10.05. The complainant had also issued post dated cheque leaves for ensuring the payment. The cheque No.25306 was dishonoured due to the strike conducted by the bank staff. There was no mistake or fault on the part of the opposite party in the matter of dishonour of cheque. The amount paid by the complainant has adjusted in the account. After the intimation of dishonour of two other cheques the complainant came to the opposite party’s office and issued fresh cheque leaves belonging to another bank for the payment towards the dishonour of cheque. So complainant is liable to pay the cheque dishonouring charges and the penalty for the delayed payment since the cheques were dishonoured due to the default of the complainant himself. The allegation that opposite party misused the cheque without complying the direction of the complainant is not correct and also the allegation of the complainant that opposite party threatened him is false. Soon after the closing of the loan steps has been taken to issue NOC. The contract termination letter was ready on 4.10.08. The complainant was informed to collect the same from the opposite party. But he has not turned up to collect the same. After getting the lawyer notice opposite party contacted the complainant and informed that the matter has been taken up to the Head office. The allegation of the complainant that there was always sufficient money in the account of the complainant is not at all correct. The complainant had issued the cheque to NRI account. There was no sufficient amount in the account to honour the 3 cheques. Since the complainant was not ready to come and receive the termination letter the opposite party had issued the termination letter to the complainant soon after getting the summons from the Hon’ble Forum. The duplicate key of the vehicle is not available with the opposite party. So there is no deficiency in service on the part of opposite party and hence the complainant is not entitled to get any amount. Since there is no merits, the complaint is liable to be dismissed.
On the above pleadings the following issues were raised for consideration.
1. Whether there is any deficiency in service on the part of the
Opposite party?
2. Whether the complainant is entitled for relief as prayed in the
Complaint?
3. Relief and cost.
The evidence consists of the oral testimony of PW1, Exts.A1 to A7and B1 to B3.
Issue No. 1 to 3
Admittedly the complainant has availed a car loan on 10.10.05. It was agreed to discharge the loan in35 installments. The entire loan amount was discharged on 8.1.08. The main case of the complainant is that opposite party did not give him NOC and duplicate key even long after the clearance of entire loan. Complainant also alleged that the opposite party has extracted excess amount by way of collection charge. Opposite party contended that 2 cheques were dishonoured for reasons of insufficiency of fund. The opposite party intimated the complainant, 2 cheques were dishonoured. After the intimation the complainant came to the opposite party and issued fresh cheque leaves. Since it is already dishonoured the complainant is liable to pay the cheque dishonouring charges and the penalty.
It is the admitted fact that the complainant paid the entire loan amount naturally opposite party is obliged to issue NOC and to return duplicate key after the discharge of the loan. The complainant discharged the entire loan amount on 8.1.08. But opposite party did not issue NOC and not returned the duplicate key. Ext.A4 is the lawyer notice sent by the complainant. Opposite party contended that contract termination letter was ready on 4.10.08 and complainant was informed to collect the same. Opposite party stated that opposite party had issued the termination letter to the complainant soon after getting the summons from the Forum. It is also stated that duplicate key of the vehicle is not available with the opposite party. It is pertinent to note that opposite party did not send any reply to the notice, Ext.A4. Complainant sent a lawyer notice after performing his part of contractual obligations. In such circumstances if reply is not given by the opposite party it can only be presumed that the reply was not sent because they have no reasonable answer to the allegations placed by the complainant. Circumstances and available evidence shows that opposite party did not issued the NOC and duplicate key in time even after discharging the loan. There is no reasonable explanation for the delay. Opposite party contended that the termination letter was ready on 4.10.08 itself and the complainant was informed to collect the same from opposite party. But did not produce any document to show that he has acknowledged such information. There is no evidence to show that opposite party has sent any such information to complainant. He could have at least produce the postal receipt. Ext.A4 notice was sent on 10.9.08. Opposite party has not sent any reply to Ext.A4. Exts.A5 and A6 proves that opposite party received lawyer notice. In the light of this lawyer notice if opposite party was intended to solve the grievance of complainant a reply would have been sent to Ext.A4. It is difficult to believe that the opposite party has informed the complainant to collect the termination letter. This is clearly a deficiency in service on the part of opposite party. Moreover the complainant alleged that opposite party charge excess amount of Rs.1750/- as collection charge and other charges on cheque No.25306 saying that he cheque was dishonoured. Herein opposite party has no charge that the cheque was dishonoured due to any fault on the side of the complainant. Opposite party himself has stated in his affidavit evidence that the cheque was returned due to the strike of bank employees. It is pertinent to note that the cheque was returned not due to insufficiency of fund. When cheque is issued the prime duty of the complainant is to keep the money in bank readily available. The endorsement clearly shows that it was returned due to “other reasons” and not that of insufficiency of fund. It reveals that complainant in no way responsible for the return of cheque. The amount on the concerned cheque 25306 is seen withdrawn on 22.11.06. Complainant further alleged that the cheque was not really dishonoured. The opposite party has not produced any document from the bank to show that it was dishonoured. Memo of return of cheque has not been produced before the Forum.
Complainant in his evidence stated that he approached the opposite party and told that he had closed the NRI account, so that the cheqes 29921 and 29922 could not been produced before the bank. He has also issued two other cheques instead of the old 2 cheques. Complainant further alleged that opposite party produced the old cheque even after informing that it should not be produced, is only for making undue economic advantage. But complainant did not show the exact date when he issued the new cheque instead of the old 2 NRI cheques. Opposite party contended that the new cheques were issued by the complainant after informing the fact that the previous cheques were dishonoured from the bank due to the insufficiency of fund. The relevant question to be proved in this aspect is the date of issuance of new cheque. The burden is upon the complainant to prove when exactly the alleged new cheques to Dhanalaksmi Bank had been issued. That is not proved. Hence complainant is not entitled to get the amount of collection charge of 2 cheques. It can be seen that complainant has not demanded for the old two cheques at the time when he issued new cheques. If the complainant has issued the cheques earlier he could have asked the opposite party to return the old unused cheques in order to avoid the presentation of the cheque before the bank.
In the light of the evidence it can be seen that opposite party did not issue NOC and so also has not returned the duplicate key even after clearing the entire loan amount. The lawyer notice also ignored. There is no reasonable ground for the delay of issuing NOC. It is true that opposite party has sent NOC after receiving notice from the Forum. But the same could have been done by the opposite party much earlier hence this delay could not be justified. It is therefore we are of opinion that there is deficiency in service on the part of opposite party. Opposite party is liable to return `1750/- as excess charge collected by them by saying dishonour of cheque NO.25306. Since the NOC is already issued we are of opinion that the amount of `2000/- as compensation is sufficient to meet the ends of justice. The opposite party is also liable to pay the amount of `1000/- as cost. Thus issues 1 to 3 are found
infavour of the complainant.
In the result, the complaint is allowed directing the opposite party to refund `1750 (Rupees One thousand seven hundred and fifty only) as excess charge collected by way of collection charge and an amount of `2000/-(Rupees Two thousand only) as compensation for the deficiency in service together with a sum of `1000 (Rupees One thousand only) as cost of the proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order against opposite party as per provisions of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1. Copy of statement of accounts from10.11.06 to4.8.07
A 2 & 3. Receipts dt.16.5.07 & 6.9.08 issued by OP
A4. Copy of the lawyer notice sent to OP
A5 & 6. Postal receipt and AD card
A7. Receipt dt.17.4.07 issued by OP
Exhibits for the Opposite party
B1. Copy of repayment details of the complainant.
B2. Copy of expense details of the complainant
B3. Copy of Due registered receipts details of the complainant.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite parties: Nil
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur
