Tamil Nadu

South Chennai

354/2010

Dr.Sujala - Complainant(s)

Versus

The Tata Finance Ltd & another - Opp.Party(s)

G.Gopalakrishnan

23 Aug 2016

ORDER

   Date of Filing :   05.08.2010

                                                                      Date of Order :   23.08.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

       DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.354/2010

TUESDAY THIS  23^RD DAY OF AUGUST 2016

 

Dr.Sujala,

D/o. Rajappan,

Rep. by her father

Mr. V.K. Rajappan,    

No.1/15, Sudha Bhavan,

Anna Nagar,

1^st Street, Camp Road,

Selaiyur, Chennai 600 073.                               ..Complainant

 

                                         ..Vs..

 

1.  The Tata Motor Finance Ltd.,

3^rd  Floor, Kasi Arcade,

161, Theyagaraya Road,

T.Nagar, Chennai 600 017.

 

 

2. Tata Finance Motor Ltd.,

Bezzloa Complex,

1^st Floor, V.N.Purav Marg,

Chembur, Mumbai 400 071.                                ..Opposite parties    

 

 

For the Complainant        :   M/s. G. Gopalakrishnan & others          

For the opposite parties   :   M/s. Nirmal Roy Sanjeevi & another     

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.2,00,000/- as compensation  and to refund the excess amount of Rs.61,530/- and to return the cheques, car documents, with no dues certificate and Rs.20,000/- as cost of the complaint.   

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he has availed the vehicle loan from the 1^st  opposite party, subsequently the 1^st opposite party is accumulated with the 2^nd opposite party company, the repayment schedule for the said loan availed by the complainant issued by the 1^st opposite party.    The complainant further submit that as per the said document the complainant has to repay a sum of Rs.7,73,137/- to the opposite party  in 42 installments  starting with December 2002 and ending May 2006 as first 41 installments are to be paid at the rate of 18407/- per month  and the 42^nd installment is to be paid a sum of Rs.18450/-.    The complainant has  given cheque leaves in advance to the opposite party for the payment of the above said installments  and also a security.    After receipt of the payment the opposite parties also given a NOC (No objection certificate) on 05.12.2008.            Accordingly the complainant is regular in payment of installments by keeping amount available in her accounts for the honoring of the cheques presented by the opposite parties towards the payment of installments, but opposite party having collected nearly 42 cheques in advance for the collection of the EMIs have not presented the cheques in time as such some of the installments were not paid due to fault on the side of opposite parties in keeping the presentation of cheques irregular.  However complainant has paid a sum of Rs.7,41,068/- through the payment of cheques and also paid by cash on several occasions through the opposite party’s collection agent  on receipt of temporary receipts totaling a sum of Rs.93,599/-  as such, the opposite party has collected a total amount of Rs.8,34,667/-  whereas the complainant is liable to pay a sum of Rs.7,73,137/-  as such the opposite party has collected an excess amount of Rs.8,34,667/- – 7,73,137/- = 61,530/-  which amounts to deficiency of service on the party of the opposite party which caused mental agony and hardship to the complainant.   As such the complainant has sought for a sum of Rs.2,00,000/- as compensation  and to refund the excess amount of Rs.61,530/- and to return the cheques, car documents, with no dues certificate and Rs.20,000/- as cost of the complaint.   Hence the complaint.  

Written Version of opposite parties are   in briefly as follows:

2.     The opposite parties deny all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The opposite parties submit that the complainant has not paid the EMIs regularly and some of the monthly EMIs were not paid as such the opposite parties has spent expenses to collect the such dues by sending their staff.   However the delayed payments made by the complainant have resulted in overdue charges and expenses on the total amount.  It may be elucidated that the complainant has himself agreed to pay the said delayed payment charges / accrued overdue charges and other expenses under the agreement.    The opposite parties herein reply on Clause-9  (a) of the terms and conditions of the said agreement which stipulates that “ the borrower’s liability and obligation to repay the amounts of the loan, interest, delayed payment charges, costs, fees, charges, expenses and all other money as may be payable under loan agreement  shall be absolute and unconditional and the borrower shall pay to lender the same, regardless of any circumstances and disputes and with time being essence of contracts.   It is evident that the complainant has not paid the full due amount and made an illegal demand to issue the NOC which was rightly rejected by the opposite parties.   The opposite parties as a gesture of goodwill issued the NOC to the complainant after waiving off Rs.8,744,45/-.   The complainant has not paid the full due amount and thus the opposite parties rightly repudiated the claim of the complainant to issue the NOC.  It may be clarified that as per the terms of the agreement which has been clearly communicated to the complainant he is liable to pay the monthly installments as stipulated therein.    As such there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A15 were marked on the side of the complainant.   Proof affidavit of opposite parties filed and no document filed on the side of the opposite parties.  

4.      The points that arise for consideration are as follows:-

 

1.   Whether the opposite parties have committed deficiency of service by collecting excess amount for the complaint mentioned loan availed by the complainant?

 

2.   Whether the complainant is entitled for the reliefs sought for in

the complaint against the opposite parties?  If so, to what extent.?

 

5.      POINTS 1 & 2:  

Perused the complaint filed by the complainant, the written version filed by the opposite parties and the proof affidavit filed by both sides and documents Ex.A1 to Ex.A15 filed on the side of the complainant and considered the both side arguments.

6.     There is no dispute that the complainant has availed the vehicle loan from the 1^st opposite party, subsequently the 1^st opposite party is accumulated with the 2^nd opposite party company, the repayment schedule for the said loan availed by the complainant issued by the 1^st opposite party is filed as Ex.A1.  As per the said document the complainant has to repay a sum of Rs.7,73,137/- to the opposite party  in 42 installments  starting with December 2002 and ending May 2006 as first 41 installments are to be paid at the rate of 18407/- per month  and the 42^nd installment is to be paid a sum of Rs.18450/-   Further there is no dispute that the complainant has  given cheque leaves in advance to the opposite parties for the payment of the above said installments  and also a security.  According to the complainant, he has given totally 48 cheques which has not been denied by the opposite parties.  Further it is also not disputed by the complainant that after receipt of the payment the opposite parties also given a NOC (No objection certificate) on 05.12.2008.

7.     However the complainant has raised grievance that the complainant is regular in payment of installments by keeping amount available in her accounts for the honoring of the cheques presented by the opposite party towards the payment of installments, but opposite party having collected nearly 42 cheques in advance for the collection of the EMIs have not presented the cheques in time as such some of the installments were not paid due to fault on the side of opposite parties in keeping the presentation of cheques irregular.  However complainant has paid a sum of Rs.7,41,068/- through the payment of cheques and also paid by cash on several occasions through the opposite party’s collection agent  on receipt of temporary receipts totaling a sum of Rs.93,599/-  as such, the opposite parties have collected a total amount of Rs.8,34,667/-  whereas the complainant is liable to pay a sum of Rs.7,73,137/-  as such the opposite parties have collected an excess amount of Rs.8,34,667 – 7,73,137 = 61,530/-  which amounts to deficiency of service and the complaint is filed by the complainant against the opposite party seeking refund of the said amount, compensation and return of unused cheques  and also cost.

8.     Whereas the opposite parties has resisted the complaint stating that the complainant has not paid the EMIs regularly and some of the monthly EMIs were not paid as such the opposite parties has spent expenses to collect the such dues by sending their staff, further as per the clause 9 (a) of the terms and conditions agreed and signed by the complainant while availing loan which stipulates that “the borrowers liability and obligation to pay the amount of loan, interest delayed payment charges, cost, fees, charges, expenses and all other money as may be payable under loan agreement shall be absolute and unconditional and the borrower shall pay to lender the same regardless of any circumstances and dispute and with time being essence of contract.”  The opposite parties have denied that the complainant has made excess payment towards the said loan.  However the complainant was given NOC as a gesture of good will after waving a sum of Rs.8744.45, as such the opposite parties has contended that there is no deficiency of service on their part as alleged in the complaint and the complainant is not entitled for any reliefs sought for in the complaint and the complaint is liable to be dismissed. 

9.     Though the opposite parties have contended that apart from the amount payable by the complainant under EMIs as mentioned in Ex.A1 the complainant also liable to pay different charges as agreed by her in the loan agreement, the said loan agreement said to have been executed by the complainant, is not filed as document on the side of the opposite parties.  The opposite parties also not explained proper reason for non production of the said loan agreement containing terms and conditions. 

10.    Further, as per Ex.A1,  the total loan amount repayable by the complainant is a sum of Rs.7,73,137/-  and the same has to be repaid by monthly installments in 42 months starting from December 2002 to May 2006.  The first 41 monthly installments are at the rate of Rs.18,407/- and the 42^nd installment is Rs.18,450/-.  In Ex.A1 there is no mentioning of other charges payable by the complainant for the said loan.   But it is agreeable that if default in payment of monthly installment occurred, for the said default amount the complainant is liable to pay penal charges and other expenses if any, is acceptable in the normal course.  According to complainant the total amount paid through 40 number of cheques is Rs,7,41,068/- as mentioned in page 45 of index of document filed on the side of complainant is acceptable when compare with the relevant entries of the copy of the bank pass book accounts filed on the side of complainant as document Ex.A3 from page No.4 to 16 of the index of the document.  In addition to that the complainant has stated that she has paid a sum of Rs.93,599/- on different dates by cash to the opposite parties, but in respect of the said cash payment the complainant has stated that she is relying upon some of the receipts issued by the opposite parties as mentioned in page 45 of the index of the document, but in respect of the said cash payment the complainant has produced only copy of the receipts in page Nos.23, 24, 25  of the index of the document respectively for the amount of Rs.18500/- dated 03.02.2006, Rs.1483/- dated 03.02.2006 and for Rs.18404/- dated 26.04.2005. But  for the other 3 payments each Rs.18,404/-  said to have been paid by cash by the complainant dated 18.11.2004, 18.04.2005 and 15.12.2005 no proof of documents has been filed by the complainant.  Further the receipts filed for the said amount were mentioned  as the said payment were made through cheques and the cheques numbers and amounts are also appears to be included in the above said list of cheque payments.   Therefore as per the evidence on the side of complainant on record, as mentioned above  the complainant has paid a total sum of Rs.7,79,455/- through cheques and cash to the opposite parties.  Whereas  as per the copy of the   account  furnished by the opposite parties to the complainant which has been filed as document in page 37 to 41, the entries found thereon it appears differently from the above mentioned pass book mentioned entries in respect of the said cheque amounts paid to the opposite parties.  No proper reason is explained on the side of opposite parties for the said differences.  However according to the said statement of account said to have been furnished by the opposite party to the complainant dated 09.07.2007, the opposite parties has mentioned in the said account that they have collected a sum of Rs.7,72,238.47 only.  Further as per the document filed by the complainant, the complainant has not paid the monthly installments due for the month of May and November 2005, April and May 2006 properly.  But the said amount were paid belatedly may be on payment of cash.  However it proves that there was default in payment.  The complainant has contended that, the complainant has already given the cheques in advance and kept the amount available in her account to honor the cheques if presented, but it is due to fault on the opposite parties in not presenting the cheques in time, so that, the complainant is not liable to pay penal charges or other expenses for default and delayed payment.  However the contention made by the opposite parties, since there was a default in payment of installment, the complainant is liable to charge for necessary penal charges and other expenses, accordingly the complainant was liable to pay a sum of Rs. 897.53 as overdue amount and excess outstanding expense Rs.202/- and current overdue as per  statement of account furnished by the opposite parties to the complainant dated 09.07.2007, for Rs.1,099.53.  But in support of the said particulars of balances no valid documents are produced on the side of opposite parties.   Whereas as mentioned above as per the pass book entries of the complainant account and proved  cash payment the total amount paid by the complainant is of Rs.7,79,455/-    Whereas as per above said statement of account said to have been furnished by the opposite parties to the complainant dated 09.07.2007 a sum of  Rs.7,73,136/- due payable towards loan +  Rs.1099.53 towards overdue amount Rs.897.53 and outstanding expenses Rs. 202/-  totaling a sum of Rs.7,74,235/-  (7,73,136 + 1099).  Therefore the opposite party has collected an excess amount of Rs.5,220/- (7,79,455 – 7,74,235) without any valid reason.  Therefore we are of the considered view that the opposite party is liable to refund a sum of Rs.5,220/- to the complainant as the amount collected excess for the said loan contrary to this the refund of Rs.61,530/- claimed by the complainant in the complaint is not proper and is not entitled to that extent.

 

11.    Therefore, considering the facts and circumstances, we are of the considered view that the 2^nd opposite party is liable to refund a sum of Rs.5,220/- to the complainant as the excess amount collected towards the complaint mentioned loan.  Since the said amount was retained and benefited by the opposite party out of the same, the 2^nd opposite party is liable to pay interest at the rate of 9% p.a. from the date of the complaint to till the date of payment and the opposite party is also liable to pay a sum of Rs.5000/- as litigation charges. Considering the facts and circumstances of the case and the opposite party has already given a NOC to the complainant the complainant is not entitled for any other reliefs sought for in the complaint such as refund of cheque leaves and compensation etc.   Accordingly the points 1 and 2 are answered.

 

In the result, this complaint is partly allowed.  The 2^nd  opposite party is directed to refund a sum of Rs.5,220/- (Rupees Five thousand two hundred and twenty only) with interest at the rate of 9% per annum from the date of complaint i.e. 05.08.2010 to till the date of payment and also to pay a sum of Rs.5000/- (Rupee five thousand only) as cost to the complainant within six weeks from the date of this order.  No order as against the 1^st opposite party.

          Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  23^rd   day  of  August   2016.

 

MEMBER-I                                          MEMBER-II                                        PRESIDENT.

Complainant’s Side documents :

Ex.A1- 28.8.2002      - Copy of Ford Ikon Price list

Ex.A2- 15.1.2003      - Copy of Hire purchase agreement.

Ex.A3-           -        -        - Copy of Statement of payment of ICICI.

Ex.A4-                    -        - Copy of Statement of payment of PNB.

Ex.A5-           -        - Copy of Receipt.

Ex.A6-                    -        - Copy of Cash receipts.

Ex.A7- 20.12.2005     - Copy of legal notice by the complainant to the opposite party.

Ex.A8- 18.12.2002     - Copy of reply from the complainant to the opposite party.

Ex.A9- 20.12.2007     - Copy of reply from the opposite party to the complainant.

Ex.A10- 1.2.2008      - Copy of Legal notice issued by the complainant to the

                               opposite parties.

 

Ex.A11- 8.2.2008      - Copy of legal notice issued by the complainant to the

                               Opposite parties.

 

Ex.A12- 14.2.2008     - Copy of Ack. card from the 2^nd opposite party.

 

Ex.A13- 2.4.2010      - Copy of 2^nd legal notice issued by the complainant to the opposite

                               Parties.

 

Ex.A14- 10.4.2010     - Copy of Ack. card from 2^nd opposite party.

 

Ex.A15- 2.6.2010      - Copy of certificate of delivery to the 1^st opposite party issued

                               By the postal authority.

 

Opposite parties’ side documents: - 

 

         .. Nil ..

 

MEMBER-I                                          MEMBER-II                                        PRESIDENT.