BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29th day of June, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.144/2008

Between

Complainants : 1. Dr. Lissy Thomas,

Vengasseril House,

Adimali P.O.

Adimali, Idukki District.

2. Adv. Thomas Paul,

Vengasseril House,

Adimali P.O.

Adimali, Idukki District.

(Both by Adv: Shiji Joseph)

And

Opposite Parties : 1. The Managing Director,

Tata Motors Finance Limited,

Wasan House, 1st Floor,

Sindhi Society, CST Road,

Chembur, Mumbai - 400 071.

(By Advs: Rajesh Thomas &

Jijo Joseph)

2. The Branch Manager,

Tata Motors Finance Limited,

No.8/311, Velloorkunnam,

Muvattupuzha.

3. The Branch Manger,

Tata Motors Finance Limited,

Housing Board Complex,

Kattappana.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESDIENT)

complainants availed a loan of Rs.2,90,000/- from 1st opposite party for the purchase of a new Tata Indica Car. The loan repayment was equal monthly installments of Rs.6,900/- each as per the agreement created between them. 30 check leaves were also given a security for the same by the complainant's. Some of the installments were became due. Certain check leaves were also dishonoured when presented for encashment because of lack of fund. So the opposite party issued lawyers Notice for the same. The 2nd complainant has paid the due installments, but the opposite party never endorsed the full amount paid by them in the loan account. The opposite party threatened the 2nd complainant through telephone and also collected excess amount from the complainants. The petition is filed for getting compensation for deficiency in service and for statements of accounts.

2. The opposite party filed written version. As per the written version, the complainant is not maintainable because the cause of action for the complainant arose at Kochi not in Idukki District. It is admitted by the opposite party that the 1st complainant availed vehicle loan from the opposite party ,but the loan amount was Rs.3,22,000/- not the amount mentioned by the complainant. The repayment was in 59 equal monthly installments of Rs.6,900/- each. Complainants had issued only 27 post dated cheque leaves, at the time of availing the loan, to the opposite party as security. Most of the cheque leaves were 'dishonoured' for "Insufficient funds". The opposite party is entitled to get the penal interest, cheque dishonour charges, and bank collection charges from the complainant as per the agreement. Notice was issued for that purpose. They never threatened the complainant through telephone in any occasion. There is no deficiency in the part of the opposite party. The petition is filed only for delaying the payments of the vehicle loan.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P10 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1series to R4 marked on the side of the opposite parties.

5. The POINT:- The complainant is filed against the deficiency in service of the opposite party, also for getting the excess amount collected by the opposite parties from the complainants. The second complainant was examined as PW1 who is a practicing lawyer of Adimaly Court. Wife of PW1 who is a doctor in profession who entrusted 30 post dated cheque leaves to the opposite party at the time of availing the loan. The 3rd opposite party approached PW1 for additional 16 cheque leaves, they where also executed and issued by the wife of PW1. Out of that, 3 of them were dishonoured. The 1st opposite party sent a lawyer Notice demanding Rs.33,273/-, the amount due up to 5.06.08. For the payment of the due amount, PW1 issued a cheque for Rs.41,810/- including the amount of interest on 05.06.08. The 1st opposite party encashed the cheque. The account extract from the Federal Bank Adimaly from 01.01.08 to 18.08.08 is marked as Ext.P1 and that from 01.04.08 to 04.09.08 is marked as Ext.P2. Again a lawyers Notice was issued by the opposite party on 06.08.08 demanding an amount of Rs.14,563/- along with Rs.8,00/- as cheque dishonour charge. The copy of the lawyer Notice is Ext.P3. The complainants are not entitled to pay that amount. On getting that Notice, the 1st complainant approached 3rd opposite party. The 3rd opposite party threatened the complainant through telephone in telephone number 919993050701 and abused the complainant, when PW1 was at Munsiff Court Devikulam on 19.08.08. The opposite party tried to extort some money from PW1. The demand notices were issued by the opposite party for Rs.276/-, and Rs.400/- respectively for bank charges, were marked as Ext.P5 and P6. The opposite party has charged Rs.14,000/- as penal interest till the date of the complaint. When the complainant issued a cheque of Rs.41,810/-, the opposite party has endorsed only Rs.39,010/- as per Ext.P9 account. On the month of August there was a balance of Rs.10,000/- in the account as per Ext.P2. But no cheque was given for collection in that month. But the opposite party has sent Notice demanding Rs.400/- as cheque collection charge on that month. DW2 is the Manager of the Federal Bank, Adimaly Branch. PW2 deposed that cheque No.188297 was given for collection in the bank on 10.07.08 for Rs.41,810/- and it was encashed. Ext.P10 is the account statement of the complainant's account from 01.01.08 to 11.02.09. It cannot be seen from Ext.P10 that the cheque in the name of Tata Motors has came on 10.07.08 for collection. The name Tata Motors is not stated. The legal Manager of opposite party was examined as DW1. Ext.R1(series) is the loan Hypothecation guarantee statement and the details of the complainant's loan. When the installments become due, the complainants are liable to pay the default interest from that date and the cheque return charges. There was no amount morethan Rs.6,900/- in the bank account after August 2008. They also entitled to get expenses for recovery of the same. 19 cheque leaves where dishonoured when produced in bank. The complainants are liable to pay Rs.32,213/- apart from the interest and future installments by 05.06.08. There is a due of Rs.46,673/-. The complainants issued a cheque of Rs.39,010/- as No.188297 on 30.06.2008 for clearing the due and never issued a cheque of Rs.41,810/-. On 11.07.2008 a sum of Rs.21,463/- was due, and on 11.08.2008 it increased as Rs.28,363/- apart from the interest and future installments. The complainant defaulted the repayment of her loan on various occasions and consequently incurred penal interest, even due charges, in accordance with the terms of the agreement. Ext.R3 series is the report of the registered reprint showing the dishonour of cheque leaves. The repayment schedule is Ext.R4.

It is admitted by the complainant itself that 19 cheque leaves given by the complainants were dishonoured by the bank when given for collection by the opposite parties. The vehicle loan was also due from the very beginning. So it means that the complaints are the defaulters of the loan. It is admitted by PW1, who is a practicing lawyer that the loan agreement says that the opposite party has the right to recover default interest, cheque return charges and the expenses for the recovery of the same from the complainants. As per PW1, 3rd the opposite party has threatened him through telephone. The phone number is also delivered. Then what prevented the complainants to file a criminal complaint against the opposite party for the same. There was interim application from the complainants for restraining the opposite party from forcible possession of the vehicle. It makes as to a conclusion that the petition is filed for getting a reasonable time for repayment of the dues made in the loan. It may be true that the opposite party charged penal interest for the defaulted amount. It is not proper to charge Rs.400/- as default interest for each installment. It is fit to charge Rs.200/- as default charge and cheque dishonour charge if it pays within one month. Interest for defaulted amount can be calculated as morethan 2% of the maximum existing interest of the available government authorized financial institutions in that area such as Co-operative banks, Kerala Finance Corporation, Kerala State Financial Enterprises etc., Or as per the money lenders Act. The fine written in Ext.R1 is only 5.33%. Hence the interest charged by the opposite party is exorbitant.

Hence the petition allowed, the following relief are awarded.

I. Opposite parties are retrained from taking possession of the vehicle No.

K.L6 C 7687 forcibly from the custody of the petitioners without due process of law.

II. The opposite parties can calculate the interest for defaulted installments as morethan 2% of the maximum interest of the existing government financial institutions, like co-operative banks, Kerala Financial Corporation, Kerala State Financial Enterprises etc., of that area.

III. The statement of Accounts of the loan should be given to the complainants as per agreement.

IV. The opposite parties are also directed to pay Rs.2,000/- as cost of this petition.

Pronounced in the Open Forum on this the 29th day of June,2009.

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainants :

PW1 - Thomas Paul

PW2 - C.G. Alexandar

On the side of Opposite Parties :

DW1 - Siby Antony

Exhibits:

On the side of Complainants:

Ext.P1 - Statement of Account from 01/01/2008 to 18/08/2008

Ext.P2 - Statement of Account from 01/04/2008 to 04/09/2008

Ext.P3 - Copy of the Lawyer Notice.

Ext.P4 - Copy of Notice dated 25/07/2008

Ext.P5 - Copy of Notice dated 19/11/2008

Ext.P6 - Copy of Notice dated 29/11/2008

Ext.P7 - Copy of Notice dated 20/12/2008

Ext.P8 - Legal Notice dated 22/01/2009

Ext.P9 - Copy of repayment schedule dated 16/01/2009

Ext.P10 - Account statement of the complainant's account from 01/01/08 to 11/02/09.

On the side of Opposite Parties :

Ext.R1(series) - Loan Hypothecation guarantee statement

Ext.R2 - Stock Information details.

Ext.R3 - Rejected Receipts

Ext.R4 - Repayment schedule