BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 417/2002 Filed on 28.09.2002

Dated : 15.10.2010

Complainant :

Dina Mony D, Kuzhivila Veedu, Kuzhivila, Chani, Kanjiramkulam P.O, Neyyattinkara.

(By adv. J.R. Sanudas)

Opposite parties :

1. The Managing Director, Muthoot Leasing and Finance Ltd., Preethi Building, Vyttila, Ernakulam.

    

2. The Branch Manager, Muthoot Leasing and Finance Ltd., Vazhuthacaud, Thiruvananthapuram.

    

   (By adv. Vennikulam George Varughese)

    

3. M/s Popular Vehicle & Services Ltd., Karamana, Thiruvananthapuram.

(By adv. K.L. Narasimhan)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 12.04.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 31.08.2010, the Forum on 15.10.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The case of the complainant is that he has availed a hire purchase finance loan from the 1^st opposite party through their branch, the 2^nd opposite party for the purchase of a Maruti Zen Diesel car from the 3^rd opposite party on 12.10.1998 vide loan No. 18/98, that he has paid an amount of Rs. 10,000/- as booking advance to the 2^nd opposite party on 12.10.1998 vide receipt dated 12.10.1998, that on 16.10.1998 2^nd opposite party booked with the 3^rd opposite party for the said car and remitted Rs. 1,50,541/- to the 2^nd opposite party towards margin money, service charge, 2 advance installment of repayment for the months of October and November 1998 documents charges etc, that the total amount that was financed by opposite parties 1 & 2 was Rs. 3,62,000/-, which was to be repaid with interest by 36 monthly installments of Rs. 13,100/- each upto 35^th installment and Rs. 12,100/- as the 36^th installment, that total amount inclusive of interest was fixed to be Rs. 4,70,600/-, that complainant also furnished 2 employees as guarantors, surrendered property tax receipt and 20 Nos. of signed blank cheque leaves of his wife, that at the time of delivery of the car, the duplicate key of the car was retained by the 2^nd opposite party and endorsement in the R.C Book was also made regarding the hypothecation of the vehicle with the 1^st opposite party. It is submitted by the complainant that he had repaid the hire purchase loan in full and on request of the complainant 2^nd opposite party has issued a statement of account which did not tally with the actual remittance, that complainant sent a letter on 13.02.2002 to the 2^nd opposite party requesting for the clarification seen in the statement of account, but opposite party did not send any reply. It is further submitted by the complainant that complainant has paid an excess amount of Rs. 20,944.03 which was not accounted in the statement of account. Since there was no reply from the opposite parties, he caused to send lawyer's notice to opposite parties. Neither reply nor any action on the matter was done by opposite parties 1 & 2. Hence this complaint to direct opposite parties 1 & 2 to refund the sum of Rs. 20,944.03 with 18% interest, to return all items viz. Salary certificate of the guarantors, 20 Nos. of signed cheque leaves, tax receipt and key of the car, to close the hypothecation by necessary endorsement in the R.C Book and to pay compensation and costs.

Opposite parties 1 & 2 filed version contending interalia that from the very beginning complainant delayed the monthly payment, that a sum of Rs. 10,000/- was paid by the complainant as booking advance, that the said amount was made to book a vehicle costing Rs. 4,82,570/- with an understanding that Rs. 9,500/- to be appropriated towards interest on booking advance and Rs. 500/- as service charges, that if any interest is paid by the manufacturer or dealer, that is to be in the account of the financier and the financier received Rs. 5,114/-. Out of Rs. 1,50,541/- a sum of Rs. 1,46,770/- was paid and balance is taken as part of initial payment outstanding, that the intention of the complainant is to extract amount from the opposite parties, that complainant has not paid any excess amount, but has to repay a sum of Rs. 11,133.75 to the opposite party for clearing the loan transaction. Hence opposite parties 1 & 2 prayed for dismissal of the complaint.

3^rd opposite party filed version contending interalia that no relief is sought against 3^rd opposite party, that 3^rd opposite party is not a necessary party. Therefore no relief to be granted against 3^rd opposite party. There is no negligence or omission on the part of the 3^rd opposite party and 3^rd opposite party is brought into the party array without any justification. Hence 3^rd opposite party prayed for dismissal of the complaint.

The issues that arise for consideration are:-

1. Whether the opposite party has collected excess amount from the complainant?

2. Whether the complainant is entitled to get back R.C Book, key of the car and other documents from the opposite parties?

3. Whether the complainant is entitled to get R.C book with endorsement of hypothecation closed therein?

4. Whether there is deficiency in service on the part of the opposite parties?

5. Whether the complainant is entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P12. In rebuttal, affidavits filed by opposite parties 1 to 3 and Exts. D1 & D2 were marked.

Points (i) to (v):- There is no point in dispute regarding the hire purchase arrangements with opposite parties 1 & 2. There is no point in dispute regarding payment of Rs. 10,000/- as booking advance. There is no point in dispute regarding the payment of Rs. 1,50,541/-. There is no specific denial as regards the surrender of tax receipts, 20 Nos. of blank cheques, key of the car, R.C Book etc. The issue herein is that the amount of Rs. 10,000/- paid as booking advance was not accounted in the statement of account issued by opposite parties 1 & 2 and opposite party has collected interest of Rs. 4,000/- on 08.02.1999, Rs. 900/- on 09.04.1999, Rs. 930/- on 08.05.1999 and Rs. 5,114.03 towards interest accrued on the booking amount. It is further argued by the learned counsel for the complainant that the said amounts have not accounted even after requests from the complainant, no reply was issued by opposite parties, nor any action on the matter was done by the opposite parties. Ext. P1 is the receipt for Rs. 10,000/- issued by 1^st opposite party dated 12.10.1998. On perusal of Ext. P1 it is seen that the same was received as booking advance for a new Maruti Zen diesel car. Ext. P2 is the copy of the order booking form dated 16.10.1998 wherein the amount mentioned is Rs. 4,24,238/-. Ext. P3 is the letter for hire purchase finance of Rs. 3,62,000/-. On perusal of Ext. P3 asset is Maruti Zen Diesel car, cost of asset is Rs. 4,82,570/-, margin money 25%-Rs. 1,20,570/-, net amount financed 3,62,000/-, Additional finance charges @ 10% for 36 months comes to Rs. 1,08,600/-, H.P. Agreement value Rs. 4,70,600/-, Repayment-35 monthly installments of Rs. 13,100/- each and a final (36^th installment) of Rs. 12,100/-. As per Ext. P3 Rs. 1,50,541/- to be remitted before the disbursement of the advance out of which margin Rs. 1,20,570/-, service charge Rs. 3,620/-, documentation charge Rs. 150/-, 2 installments Rs. 26,200/-, option money Re. 1. Ext. P4 is the copy of invoice dated 11.11.1998 issued by Popular Vehicles. Ext. P5 includes two receipts issued by Muthoot Leasing and Finance Ltd. dated 09.04.1999. Ext. P6 is the receipt dated 08.05.1999 for Rs. 930/- towards balance and interest of H.P 18/98. Ext. P7 is the receipt dated 08.02.1999 for Rs. 13,100/- towards 5^th installment. Ext. P8 is the copy of the letter addressed to Muthoot Leasing & Finance Ltd. regarding rectification of mistakes in the calculation of the hire purchase interest and other charges. Ext. P9 is the H.P status report as on 09.11.2001. As per Ext. P9 opposite party has received H.P agreement value of Rs. 4,70,600/- and Rs. 12,963.75 towards penal charge. On perusal of Ext. D1, from 11^th installment onwards complainant has belated the payment of installment thereby penal charges imposed. According to opposite party a sum of Rs. 11,133/- is to be paid by the complainant to the opposite party. It is to be noted that complainant had initially remitted Rs. 10,000/- which was accepted by the opposite parties as booking advance. But the same is not seen accounted in the statement of account prepared by opposite parties. That is one of the allegations raised by the complainant against opposite parties 1 & 2. According to opposite party there was an understanding that Rs. 9,500/- to be appropriated towards interest and Rs. 500/- as service charges. There is no material to substantiate that aspect in the records nor is any adjustment made by opposite parties in the statement of account, nor is it mentioned in Ext. P3 hire purchase document also. Further it is to be noted that as per Ext. P5 opposite party received Rs. 900/- towards interest on 09.04.1999. As per Ext. P9 H.P Status report issued by opposite party the 7^th installment was due on 09.04.1999, on the same day complainant remitted the said amount. The reason for calculation of Rs. 900/- towards interest is known to opposite party only. Similarly as per Ext. P6, opposite party received Rs. 930/- on 08.05.1999. It is to be noted that the due date of 8^th installment was 09.05.1999, that is within the time period complainant remitted the installment amount. The reason for calculation of interest is not substantiated by opposite party. The amount stated in Ext. P5 & P6 not reflected in Ext. P9 status report. Complainant submits that he has remitted Rs. 4,000/- towards interest on 08.02.1999, but there is no material in the records to show that he has remitted such amount on 08.02.1999 towards interest. There is no material in the records to show that he is eligible to get interest on the booking amount. As per the available records, it is seen that opposite party has received Rs. 10,000/- vide Ext. P1, Rs. 900/- vide Ext. P5, Rs. 930/- vide Ext. P6 which is not reflected in the status report. In view of the above we find opposite parties 1 & 2 collected excess amount of Rs. 11,830/- from the complainant which is not reflected in the status report. Since as per Ext. P9 entire installment amount was received by opposite parties, we find complainant is entitled to get back all the documents including key of the car and removal of hypothecation in the R.C book etc. Complainant is also entitled for refund of Rs. 11,830/-. Non-payment of the said amount and non-return of the documents would amount to deficiency in service on the part of the opposite parties 1 & 2 for which the complainant is entitled to compensation also.

In the result, complaint is allowed. Opposite parties shall refund Rs. 11,830/- to the complainant and shall return all items including salary certificate of the guarantors, signed cheque leaves(20 Nos), tax receipt, key of the car to the complainant and shall close the hypothecation by necessary endorsement in the R.C Book. Opposite party shall pay a sum of Rs. 5,000/- towards compensation along with costs of Rs. 2,000/-.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 417/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Receipt for Rs. 10,000/- issued by 1^st opposite party dated

12.10.1998

P2 - Copy of the order booking form dated 16.10.1998

P3 - Letter for hire purchase finance of Rs. 3,62,000/-.

P4 - Copy of invoice dated 11.11.1998 issued by Popular Vehicles.

P5 - Two receipts issued by Muthoot Leasing and Finance Ltd.

dated 09.04.1999

P6 - Receipt dated 08.05.1999 for Rs. 930/-

P7 - Receipt dated 08.02.1999 for Rs. 13,100/-.

P8 - Copy of the letter addressed to Muthoot Leasing & Finance

Ltd.

P9 - HP Status report as on 09.11.2001

P10 - Copy of suit notice dated 05.06.2002.

P11 - Copy of postal receipts

P12 - Acknowledgement card addressed to 2^nd opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - HP Status Report as on 20.12.2002

D2 - Letter dated 12.10.1998 addressed to opposite party.

PRESIDENT

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