IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 06th day of October, 2021.
Filed on 15-01-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.09/2019
between
Complainant:- Opposite parties:-
Sri. K.K.Subramanyan The Secretary
S/o Karunakaran Pillai The Kerala State Transport
Kesavasadanam Employees Co-operative Society
Ward. No. VIII of Panavally Ltd. No. 4206
Panchayath, Panavally Village Office of the KSTEC Society
Panavally.P.O,Cherthala Taluk Mullackal, Alappuzha
(Adv.Sri. E.D.Zacharias) (Adv.Sri. M.G.Reshu)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986
Material averments briefly discussed are as follows:-
Complainant was an employee of KSRTC and on 26/5/2011 he availed a loan of Rs. 2,00,000/- for house maintenance from the opposite party Kerala State Transport Employees Co- operative Society Ltd. EMI was fixed @ of Rs.4,610/- and the opposite party had collected a total amount of Rs.2,71,990/- as salary deduction. The guarantees of the loan transaction are employees of KSRTC. The instalment amount was regularly deducted from the salary of the complainant and there was no delay or default in payment and the agreed interest was 10% per month. The loan was sanctioned on the production of salary certificates of the complainant and guarantees. The complainant retired from service on 31/5/2017.
2. Complainant received a letter from the opposite party dated 29/10/2018 demanding to pay Rs.2,00,680/- and informed that they will initiate steps to recover the same. Opposite party has no manner of right to realize any amount and complainant is not liable to pay any amount as stated in the demand notice. One month prior to the issuance of notice opposite party had demanded to remit Rs.50,000/- being the balance amount of the loan transaction. The mode of payment in loan instalment was salary cutting and one year before the retirement of the complainant, the salary cutting was closed and the complainant was under the impression that the loan was satisfied and closed. But they issued notice demanding unlawful amount. The acts of the opposite party are perse illegal, ill motivated, bias, not in good faith and ultra vires. There is unfair practice and dereliction of service on the part of the opposite party.
3. All the amounts deducted from the salary of the complainant were not properly appropriated in the loan amount. The opposite party has no manner of right to realize the interest more than 10% per month and the complainant is not liable for the interest and further the opposite party has to decrease the rate of interest. Complainant is entitled to get the No Objection Certificate (NOC) or certificate showing the full and final settlement of the loan amount. The acts of the opposite party have caused mental agony, harassment, inconvenience, frustration, disgrace etc. to the complainant and he is entitled to get compensation of Rs. 25,000/-. Hence an order may be passed directing the opposite party to quash the demand notice dated 29/10/2018 or find that opposite party has no right to realize the amount stated in the notice. An order may be passed directing the opposite party to appropriate the amount of salary deducted in the loan account. An order may be passed directing the opposite party to reduce the rate of interest to 10%. Opposite party may be directed to pay Rs.25,000/- towards compensation.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is neither maintainable in law nor sustainable on facts. The complaint deals with the averments arising out of a dispute between a member and the society in respect of a loan availed by the said member. Hence, proceedings initiated by the complainant before this Commission is barred by Sec.69 of the Kerala Co-operative Societies Act, 1969. The present dispute is regarding monetary and hence it shall be referred to the Registrar constituted under Sec.70A of the Act. No other Court or other Authority shall have jurisdiction to entertain any suit or other proceedings in respect of such monetary dispute.
5. Complainant has approached this Commission with utmost unclean hands by suppressing material facts. The complaint is nothing but frivolous and vexatious and is to be dismissed on that score itself. It is true that complainant was an employee of KSRTC. But the averments that the complainant availed a loan for Rs. 2,00,000/- for his house maintenance on 26/5/2011 and the monthly instalment was Rs. 4610/- and the opposite party has withdrawn total amount of Rs.2,71,990/- from the salary of the complainant are absolutely false and incorrect. Likewise the averments that the instalments were regularly withdrawn from the salary and there was not any delay or default in payment and the agreed rate of interest was 10% per month are also false.
6. Complainant was an employee of KSRTC and he was one of the members of the opposite party holding the membership No.3559. While so he availed a consumer loan of Rs.2,00,000/- and after complying the proceedings the loan amount was disbursed on 26/5/2011. The rate of interest for the said loan was 13% per annum and the monthly instalment was Rs.3,333/-. The period of closing the loan was 60 instalments without any defaults. The complainant started remitting the instalments from 23/6/2011 but from the month of October 2012 the complainant defaulted the actual payment of instalments and thereby defaulted the payment towards the loan transaction. Hence the regular payments of instalments was effected by the complainant only for about 16 months ( from 23/6/2011 to 13/9/2012). Thereafter the complainant remitted the instalments for 7 months but by committing default on actual payment prescribed for the instalment. The complainant is a chronic defaulter after 13/9/2012. Ultimately the opposite party was constrained to initiate recovery proceedings from the salary of the complainant through the authorities concerned of the KSRTC but it turned out to be unsuccessful. Complainant did not furnish relevant document to recover the instalments from the salary. The last payment of the loan amount was on 11/7/2016. Complainant retired from service on 31/3/2017. Thereafter, the complainant in order to avoid any recovery from his retirement benefits tactfully initiated some legal proceedings against the opposite party and thereby obtained the entire benefits from the department without closing the loan liability. Now an amount of Rs.1,44,291/- + Penal interest is fallen as due from the complainant. In addition to the above loan on 6/5/2014 complainant had availed a loan of Rs.5,000/- in the category of emergency loan. The outstanding balance in the said loan transaction is Rs.3,920/- as on 15/1/2020.
7. Opposite party had sent several notices to the complainant requesting to effect the monthly installments. During the month of March 2018 the Government of Kerala introduced a scheme of dues clearance for the defaulters and adalath was conducted. Though complainant was granted deduction in accumulated amount of interest he did not avail the benefit of the scheme. Complainant has suppressed material facts and approached this Commission with some ulterior motive on his part. Complaint is meritless and it lacks any bonafides. Hence it may be dismissed with exemplary costs of the opposite party.
8. On the above pleadings following points were raised for consideration:-
1. Whether the complaint is maintainable before this Commission?
2. Whether there is deficiency of service from the part of opposite party?
3. Whether the complainant is entitled get an order to setaside demand notice dated 29/10/2018 issued by the opposite party?
4. Whether the complainant is entitled to get an order directing the opposite party to appropriate the remitted amount as salary deduction in the loan account?
5. Whether the complainant is entitled to get an order against the opposite party to deduct the rate of interest to10% ?
6. Whether the complainant is entitled to get compensation of Rs.25,000/- as prayed for?
7. Reliefs and costs?
9. Evidence in this case consists of the oral evidence of PW1 to 3, Ext.A1 and A2 series from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B4 from the side of the opposite party. Ext.X1 was produced to PW2 and Ext.X3 was produced byPW3.
10. Point No.1:-
In the version a contention is taken that the complaint is not maintainable before this Commission since the dispute is between a member and the opposite party Co – operative Society. It is contented that it is barred u/s 69 of the Kerala Co-operative Societies Act,1969 Since the present dispute is regarding monetary transaction it is to be referred to the Registrar. However such contention is unsustainable in view of the decision of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.823 to 826 of 2001. It was held
“ Co-operative societies do come under the purview of the Consumer Protection Act and hence the District Forum can exercise jurisdiction over them”.
This point is found infavour of the complainant.
11. Point No.2 to 6:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 and A2 series.
12. PW2 is working as Asst. Transport Officer at KSRTC Depot, Cherthala. The salary of PW1 was deducted from Sept 2011 to July 2015. There was no deduction on September 2014, November 2014 and May 2015. The certificate is marked as Ext.X1. As per Ext.X1 total amount of Rs.1,46,291/- was deducted. After 2015 PW1 was transferred to Mavelikara and there also there were deductions.
13. PW3 is working as Assistant at KSRTC depot Mavelikara. As per the direction of ATO he had produced the documents regarding the salary deduction of PW1.
From December 2014 to July 2015 PW1 was working at Mavelikara depot. During that period salary was deducted at the rate of Rs. 4,471/- except during the month of May 2015. An amount of Rs.31,297/- was deducted in total and the certificate is marked as Ext.X2.
14. RW1 is working as Junior Clerk attached to the opposite party society. She filed an affidavit in tune with the version and marked Ext.B1 to B4.
15. PW1, the complainant is a retired employee of Kerala State Road Transport Corporation (in short KSRTC). He was a member of Kerala State Road Transport Employees Society Ltd No. 4206(opposite party). On 26/5/2011 he availed a loan of Rs.2,00,000/- from the opposite party. As per the terms and conditions the EMI was fixed as Rs.4,610/- and PW1 agreed for the deduction of the same from the salary. Now the case of PW1 is that by salary deduction an amount of Rs.2,71,990/- was credited in his loan account. He retired from service on 31/5/2017. After the retirement Ext.A1 notice dated 29/10/2018 was issued to him directing him to pay an amount of Rs. 2,00,680/-. It was intimated that inspite of receipt of retirement benefits since the loan is not cleared, they will initiate arbitration proceedings against the complainant. He is also contended that the agreed rate of interest was 10% and the opposite party is realizing more interest than the agreed rate. Hence he has filed the complaint to quash Ext.A1 notice, for a direction to the opposite parties to appropriate the entire amount to the loan account for giving a direction to reduce interest rate to 10% and claiming Rs.25,000/- as compensation. Opposite party filed a version admitting the loan transaction. According to them the loan was availed on 26/5/2011 and the EMI was fixed at Rs.4,610/-. However the complainant was irregular in making repayment. Salary deduction was effected continuously for about 16 months ie, from 23/6/2011 to 13/9/2012. Thereafter the deduction was not regular and so there is arrears in the loan account. It was also contended that the agreed interest was 13%. According to them an amount of Rs.1,44,291/- along with penal interest is due from the complainant. Further on 6/5/2014 complainant had availed an emergency loan of Rs.5000/-. There is outstanding balance to the tune of Rs.3920/- as on 15/1/2020 in the said loan account also. Hence they contended that the complaint filed suppressing material facts is only to be dismissed with exemplary cost. Complainant got examined as PW1 and two witnesses were examined as PW2 and PW3. Ext.A1 and A2 series were marked through the complainant. PW2 and 3 produced Ext.X1 and X2. A Junior Clerk of the opposite party was examined as RW1 and Ext.B1 to B4 were marked.
16. The fact that PW1 availed a loan of Rs.2,00,000/- on 26/5/2011 is not in dispute. According to PW1 as salary deduction an amount of Rs. 2,71,990/- was credited to the loan account. Hence no amount is due from him to the opposite party. Ext.A1 is a notice dated 29/10/2018 issued by the opposite party to PW1 demanding to repay Rs. 2,00,680/-. In Ext.A1 it is contented that Rs.1,44,291/- is due in the principle and Rs. 55,539/- is due as interest. Further in another loan of Rs. 5000/- an amount of Rs.3,500/- is due as principle and Rs. 350/- is due as interest. Hence the total amount comes to Rs. 2,00,680/-. Complainant has produced Ext.A2 series 26 pay slips from which it is seen that a total amount of Rs. 1,12,609/- was deducted from the salary in the consumer loan account and Rs.3150/- is deducted for the emergency loan. So even if from Ext.A2 series produced by PW1 it can be seen that only Rs.1,12,609/- was deducted from his salary. It appears that some of the pay slips are missing. Initially PW1 was working at KSRTC depot Cherthala and thereafter he was transferred to KSRTC deport, Mavelikkara. PW2 is the Asst. Transport Officer attached to KSRTC Depot, Cherthala. From Ext.X1 it is seen that an amount of Rs. 1,46,291/- was deducted from the salary of PW1 and credited in the loan account. PW3 is the Assistant attached KSRTC depot, Mavelikara. From Ext.X2 certificate produced by him it is seen that Rs.31,297/- was deducted from his salary of PW1 and credited in the loan account. As pointed out by the learned counsel appearing for opposite party some difference is seen in Ext.X1 and X2. In Ext.X1 it is seen that an amount of Rs.53652/- is deducted from 5/2014 to 7/2015 ( Rs. 4,471 x 12). In Ext.X2 deduction is from 12/2014 to 7/2015 excluding May 2015. So it is seen that some of the deduction shown in Ext.X1 is repeated in Ext.X2. Even from Ext.X1 and X2 it is seen that the total deduction from the salary of PW1 is only Rs.1,77,588/- (1,46,291 + 31,297). Admittedly PW1 had availed a loan of Rs. 2,00,000/- and so it can be seen that PW1 has not even remitted the principle amount by way of salary cutting.
17. Ext.B1 is the loan ledger of PW1 from which it is seen that the deduction started on 23/6/2011 and the recovery amount was Rs.3399/-. So the contention in the complaint that the EMI was Rs. 4,610/- appears to be not correct. Ofcourse there are some deduction at the rate of 4,610/-. But there are deduction to the tune of Rs.4,196/- and Rs. 4,471/- . From the evidence of PW2 it is gathered that the amount deducted from the salary will be sent to the chief office of the KSRTC at Trivandrum from where it is sent to the society as cheque. So some delay may occur in crediting the amount to the society. It was contended that PW1 retired from service on 31/5/2017 and received the entire benefits. If there is any dues to the society NLC(Non Liability Certificate) will not be issued and so PW1 will not be able to collect the benefits. However in the version as well as in the chief affidavit of RW1 it is contented that during the retirement time PW1 tactfully initiated some legal proceedings against the opposite party and thereby obtained the entire benefits from the department without closing the loan liability. There was no cross examination on this point while RW1 was in the witness box. It appears that filing complaint before this Commission is also one of his tactics for escaping from payment of the loan.
18. From Ext.B2 loan account it is seen that the date of retirement is shown as 31/5/2017. Ext.A1 notice is dated 29/10/2018. PW1 retired from service on 31/5/2017 and collected all the retirement benefits without clearing the dues to the opposite party society. It can be seen that there was dereliction of duty from the part of opposite party for not informing the appropriate office regarding the dues to the society and collect the same from the retirement benefits. According to opposite parties complainant tactfully initiated some legal proceedings and obtained the entire benefits without clearing the outstanding loan to the opposite party.
19. As discussed earlier from Ext.A2 series produced by PW1 it is seen that only an amount of Rs. 1,12,609/- was deducted from his salary. From Ext.X1 and X2 it is seen that only Rs. 1,77,588/- was deducted from his salary. There also in Ext.X1 andX2 some duplication of amount is there. So even if the amount shows in Ext.X1 and X2 is considered only Rs. 1,77,588/- was paid to the society into the loan account. The principle amount itself is Rs. 2,00,000/-. The loan was availed on 26/5/2011 ie, more than 10 years back and so there will be interest and penal interest. Though in the complaint PW1 stated that a total amount of Rs. 2,71,990/- was deducted from his salary there is no evidence to prove the same. Per contra from Ext.X1 and X2 certificates it can be seen that only Rs. 1,77,588/- was deducted from his salary. Though PW1 had availed Rs.5000/- as emergency loan it is also in arrears. Availing emergency loan is suppressed in the complaint. From Ext.A1 it is gathered that Rs.3850/- is pending being the principle amount and interest in the emergency loan also.
20. The first relief sought in the complaint is to quash Ext.A1 notice dated.29/10/2018, on a finding that opposite party had no right to realize the amount stated in the notice. As discussed earlier from Ext.X1 and X2 it is seen that only Rs.1,77,588/- was deducted whereas the principle amount itself is Rs.2,00,000/-. The 2nd relief sought for giving a direction to appropriate the entire amount in the loan account. From Ext.X1 and X2 it can be seen that only Rs.1,77,588/- was deducted from the salary and it is appropriated in the loan account. Another relief sought is to direct the opposite party to reduce the rate of interest to 10% . In the complaint it is stated that the rate of interest of the loan was 10%. Per contra in the version it is contended that the rate of interest was 13%. Both parties have not produced any documents to show the percentage of interest agreed between them at the time of availing the loan. Further if PW1 had agreed to pay interest at the rate of 13% at the time of availing the loan, this Commission has no power to reduce the same to 10%. As stated earlier PW1 failed to produce any document to show that the agreed rate was 10% at the time of availing the loan. Complainant is seeking an amount of Rs. 25,000/- towards compensation for mental agony, frustration, inconvenience, disgrace, harassment etc. From the above discussion it is pellucid that though PW1 availed a loan of Rs. 2,00,000/-, he had only repaid Rs.1,77,588/- ie, even the principle amount is not repaid. So it is not known how PW1 sustained mental agony, frustration etc.. On the other side by not repaying the loan amount much inconvenience and difficulty was caused to the opposite party. It is to be remembered that PW1 received the entire retirement benefits and still he failed to repay the loan amount. From the version it is gathered that PW1 had availed emergency loan of Rs.5000/- and it is also pending. But it was suppressed in the complaint. On analyzing the evidence as a whole we have no hesitation to hold that the complaint was filed suppressing material facts and it was filed on an experimental basis as to somehow delay the recovery proceedings and initiating arbitration case against him. In Amrik Singh Vs. M/s United India Insurance Company Ltd. [1993 (2) CPR 203] it was held.
“Consumer must come with clean hands. Suppression of material fact by the complainant disentitles him to relief in this jurisdiction. A consumer knocking at the door of the redressal agencies under the Act for relief of a consumer dispute must do so with clean hands.”
Hence PW1 is not entitled for any relief and so these points are found against him.
21. Point No.7:-
In the result complaint is dismissed with cost of Rs.5000/- to the opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 06th day of October, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - K.K.Subhramanyan(Complainant)
PW2 - Sam.K.B(Witness)
PW3 - Rahul.M(Witness)
Ext.A1 - Notice dated 29/10/2018 from KSRTE Co-operative Society.
Ext.A2series - Pay Slips
Ext.X1 - Certificate
Ext.X2 - Transaction Details
Evidence of the opposite parties:-
RW1 - Asha.S(Witness)
Ext.B1 - Copy of certificate
Ext.B2 - Repayment details
Ext.B3 - Copy of Acknowledgment Card
Ext.B4 - Authorization Letter dtd. 3/5/2021
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
