DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 19th day of August 2011
Present : Smt.Seena.H. President
:Smt. Preetha G Nair, Member
Date of filing: 08/11/2010
(C.C.No.140/2010)
Mary,
W/o.Shiji,
Thekkeyil House,
Thachampara (PO),
Mannarkkad Taluk - Complainant
(By Adv.K.K.Sreenivasan)
V/s
1. The Managing Director,
Muthoot Vehicle and Asset
Finance Ltd., Banerji Road,
Kochi, Ernakulam District
(By Adv.Jayachandran.G)
2. The Manager,
Muthoot Vehicle and Asset
Finance Ltd., Palakkad Branch,
A.V.Plaza, R.S.Road,
Palakkad.
(By Adv.Jayachandran.G) - Opposite parties
O R D E R
By Smt.PREETHA G NAIR, MEMBER
Complainant availed finance of Rs.3,60,000/- from the company of the opposite parties and purchased the Jeep bearing No.KL-50-2769. Finance was provided by the 2nd opposite party which is the branch of 1st opposite party at Palakkad. The repayment schedule fixed was 60 monthly installments at a rate of Rs.9045/. The complainant has properly paid upto 26th installment. The vehicle was stolen on 7/7/2009 and a crime was registered by Mannarkkad Police. The effort of the police to trace out the vehicle is failed and the police filed a report before the Judicial First Class Magistrate, Mannarkkad to that effect. The vehicle is insured with Bajaj Alliance General Insurance Co. Ltd. The insurance company allowed Rs.3,00,000/- as the insured amount to the complainant by way of cheque dated 30/7/2009. Since the vehicle was under the finance of opposite parties, the cheque was issued in favour of them. Out of that cheque amount the opposite parties realized Rs.2,57,827/- towards the finance amount and the balance amount of Rs.42173/- is issued to complainant as per cheque dated 17/8/09. The act of opposite parties highly illegal, deficiency in service and unfair trade practice. The opposite parties have no right to recover such a huge amount from an unexpected event and not within the control of complainant. So at the time of closing the finance the opposite parties have no right to realize penal interest or any other extra charges from the complainant. Many times complainant requested the opposite parties to return the excess amount with interest for which they were not turned up. Then the complainant send registered lawyer notice on 20/4/2010 to 2nd opposite parties. The 2nd opposite party received the notice. But the 2nd opposite party has not send reply and not paid the amount. Hence the complainant prays for an order directing the opposite parties to
Pay Rs.56122/- with 10.25% interest from 30/7/2009 onwards
Pay Rs.25,000/- as compensation for mental agony.
Opposite parties filed version stating the following contentions. The opposite parties admitted that the complainant had availed a loan facility from the opposite party for purchasing the jeep. The loan availed by the complainant on 4/5/2007. The amount availed is Rs.3,60,000/- and the complainant executed a hypothecation agreement agreed to pay interest at the rate of 10.15% flat per annum. It is true that the complainant had paid 26 installments to the loan amount. The opposite parties denied that they had issued a cheque for Rs.43,173/- to the complainant. The opposite parties paid an amount of Rs.42,173/- by way of cheque to the complainant on 17/8/2009. The opposite parties are realized excess amount of Rs.56,122/- is incorrect and denied. The amount and interest calculated in the complaint is not correct. The opposite parties not taken any interest at the rate of 10.25% as stated in the complaint. The complainant has to pay Rs.5,42,700/- in 60 installments. She had paid only 26 installments. The opposite parties has given rebate of Rs.51,863/- to the complainant and also waiver of Rs.3003/- and the balance amount of Rs.42,173/- was paid to the complainant by way of cheque. After verification of the statements of accounts the complainant had received the amount from the opposite parties. At the time of closing of the account, the complainant has no objection. The complainant does not come under Sec 2(d) of the Consumer Protection Act. The complainant is not entitled to get an amount of Rs.56,122/- with interest and compensation. Hence the opposite parties pray to dismiss the complaint with cost.
Both parties filed affidavit and documents. Ext.A1 to A6 marked on the side of the complainant. Ext.B1 & B2 marked on the side of the opposite parties. Matter was heard. Argument notes filed by both parties.
Issues to be considered are
1.Whether the complainant is a consumer under the Consumer
Protection Act ?
2.Whether there is any deficiency in service on the part of opposite
parties ?
If so, what is the relief and cost ?
Issue No.I
The opposite parties filed additional version and stated that Section 5 of the Arbitration & Conciliation Act 1996, complaint is not maintainable. Complainant stated that it is a clear case of unfair trade practice and deficiency in service on the side of opposite parties. According to Section 3 of Consumer Protection Act : Act not in derogation of any other law. The Provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence the complainant is a consumer under the Consumer Protection Act. The 1st issue answered accordingly.
Issue II & III
Admittedly the complainant had availed the vehicle loan of Rs.3,60,000/- and paid upto 26th installment. Thereafter the vehicle was stolen and the insurance company allowed Rs.3,00,000/- to the complainant by way of cheque dated 30/7/09 as the insured amount. The cheque was issued in favour of opposite parties. Out of that cheque amount the opposite parties realized Rs.2,57,827/- towards the finance amount and balance amount of Rs.42,173/- paid to the complainant. The complainant stated that rate of interest fixed by opposite parties was 10.25%. In Ext.B2, the interest on the hypothecation loan at the rate of 10.15% per annum. In Ext.A4 on 30/7/2009 the opposite parties received the cheque from the Insurance Company. In the present case the vehicle was stolen and the insured amount given to complainant. In Ext.B1, there was no special provision to adjust the loan amount when the vehicle was stolen. In page No.3 of Ext.B1 14 (iii), it is further agreed that Muthoot Leasing and Finance Ltd. shall not be responsible or liable even if there is a defect or dispute of any nature in the title (even if the vehicle is found to be a stolen vehicle) or ownership of vehicle. In the present case the loan amount debited in the insured amount and paid the balance amount to the complainant. Therefore the principal amount is Rs.3,60,000/- The Insurance Company allowed Rs.3,00,000/- to the complainant by way of cheque. The interest at the rate of 10.15% from 07/06/2007 to 07/07/2009 was Rs.4,36,125/-.
Amount paid : Rs.2,35,170/-
Balance : Rs.2,00,955/-
The opposite party realized the amount of Rs.2,57,827/-
Therefore the opposite parties realized Rs.56,872/- as the excess amount. No evidence was produced by the opposite parties to prove that any loss suffered to them in the event of premature closure of the account. The opposite parties have not made any condition in their agreement. The finance was not willfully closed by the complainant. The opposite parties have no right to collect the forthcoming interest from the complainant in the event of premature closure of the account. So the opposite parties have no right to realize the penal interest or any other extra charges from the complainant.
In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result the complaint is allowed. We direct opposite parties jointly and severally to pay Rs.56,872/- (Rupees Fifty six thousand eight hundred and seventy two only) with 10.15% interest from 30/7/2009 to date of order and pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 19th day of August 2011.
Sd/-
Smt.Seena.H
President
Sd/-
Smt.Preetha G Nair
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of Status Report loan payment details as on 4/8/2009
Ext.A2 – Photocopy of Form 35 issued by opposite party to complainant
Ext.A3 – Photocopy of letter send by Bajaj Allianze to the 2nd opposite party
dt.3/8/09
Ext.A4 – Photocopy of cheque issued by Bajaj Allianz to opposite party
dt.30/7/09 for Rs.3,00,000/-
Ext.A5 - Photocopy of cheque issued opposite party to the complainant
dt.17/8/09 for Rs.42,173/-
Ext.A6 – Photocopy of registered notice send by K.K.Ramdasan, Advocate to
opposite party dtd.20/4/10
Exhibits marked on the side of the opposite parties
Ext.B1 – True copy of hypothecation agreement signed by the complainant
dt.4/5/2007
Ext.B2 – Copy of Status Report loan payment details as on 3/9/2009
Cost Allowed
Rs.1,000/- allowed as cost of the proceedings
