Vemsani Suryanarayana, S/o. Krishnaiah, R/o. Kaviraj Nagar, Khammam Town and District. - Complainant(s)
Versus
The TATA Motors Ltd., Khammam Brahch & another - Opp.Party(s)
Velamati Srinivas, Advocate, Khammam.
25 Mar 2010
ORDER
BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM Varadaiah Nagar, Opp CSI Church consumer case(CC) No. CC/09/55
Vemsani Suryanarayana, S/o. Krishnaiah, R/o. Kaviraj Nagar, Khammam Town and District.
...........Appellant(s)
Vs.
The TATA Motors Ltd., Khammam Brahch & another The TATA Motors Ltd., Thane-400 604.
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE DISTRICT CONSUMERS FORUM AT KHAMMAM Dated this, the 25th day of March, 2010 CORAM: 1. Sri Vijay Kumar, B.Com., L.L.B. - President, 2. Smt.V.Vijaya Rekha, B.Sc. B.L. - Member 3. Sri R. Kiran Kumar, B.Sc. L.L.B - Member C.C. No. 55 /2009 Between: Vemasani Suryanarayana, s/o.Kotaiah, aged: 50 years, occu: Govt. Employee, r/o.H.No.5-1-110/1, Kaviraj Nagar, Khammam District. Complainant and 1. The Tata Motors Limited, Khammam branch, D.No.8-3-215/216, Wyra Road, Khammam Town, 2. The Tata Motors Limited, 2nd floor, C-33, Ramakrishna Metal works, Opposite ITI near Maruthi Servicing Centre, Road No.28, Wagle Estate, Thane-400 604. Opposite parties. This C.C. is coming on before us for final hearing in the presence of Sri.V.Srinivas, Advocate for complainant and of Sri.Y.Manohar Rao, Advocate, Hanmakonda, and of Sri.A.Sarath Chnadra, Advocate for opposite parties; upon perusing the material papers on record, and upon hearing the arguments, till this day, this Forum passed the following : O R D E R (Per Sri.R.Kiran Kumar, Member) 1. This complaint is filed under section 12(A) of the Consumer Protection Act, 1986. The averments made in the complaint are that the complainant approached the opposite party no.1 and purchased an Indica DLS Car under finance, vide contact number 115131, dated 26-09-2008. Invoice amount Rs. 3,36,524/-, initial hire Rs.1,26,524/-, finance amount Rs.2,10,000/-, finance charges Rs.52,920/- and the contract value is Rs.2,62,920/-, the amount to be paid in total 36 installments on or before every 2nd of the calendar month, towards the first installment the complainant paid an amount of Rs.7,420/-, from 2nd installment onwards till 36th installment, the complainant has to pay Rs.7,300/- per month. According to the terms and conditions of the opposite parties, the complainant had given 35 post dated cheques with effect from 02-09-2008, opposite parties have to withdraw the installment amounts by way of post dated cheques every month on or before 2nd of the calendar month. Instead of that, the opposite parties with drawn the 2nd installment amount on 07-11-2008, 3rd installment was on 02-12-2008, 4th installment was on 09-01-2009, 5th installment on 18-02-2009 and 6th installment on 18-03-2009 irregularly. The opposite parties have to receive 8 installments as on that date, instead of that opposite parties received only five installments. Apart from that, the opposite parties sent two false notices on 08-05-2009 and on 07-06-2009, by illegally demanding the complainant that this is to inform you that we have debited the following expenses in your account. We therefore, request you to pay Rs.350/- immediately otherwise the amount will be adjusted from the next EMI paid by you and your contract will be charged with the late payment charges. And also insisting the complainant by way of sending messages to his cell phone, and for that, complainant got issued reply notice to the opposite parties on 23-05-2009. But the opposite parties never cared it and they never responded. As per the statement of account given by the complainants bank, State Bank of Hyderabad, P & CB branch, Samkshema Bhavan, Khammam, vide account bearing No. 52050749645, during the period from 01-11-2008 to 09-04-2009, the balance is Rs.3,42,538/-, and as per the statement during the period from 10-04-2009 to 22-06-2009, the balance is Rs.1,46,464/-. The opposite parties having possibility to clear the post dated cheque amount time to time from the account of complainant, they failed to present the cheques within the stipulated date. To cover the mistake on their part, trying to gain the charges illegally from the account of complainant by sending such type of notices, which caused very much mental agony to the complainant. As such the complainant approached the Forum for redressal. 2. On receipt of the notice, opposite party no.1 filed counter, by denying all the averments made in the complaint. In the counter, the opposite party no.1 admitted the para No.1 and 2 of the complaint and also stated that it is specifically agreed by the complainant, that in case of delayed payments, the account will be charged with late charges, charges for dishonor of cheque separately. It is further stated that the repayment was not from 02-09-2008, as there was no finance facility as on that date. First installment was on 02-10-2008, which was paid by the complainant, the payment through cheque was commenced from 02-11-2008, opposite parties withdrawn the amount from 2nd to 6th installments. It is further contended that the 7th installment cheque bearing No. 542086 dated 02-04-2009 was presented for encashment and the same was dishonoured on the ground of funds insufficient, as per the memo issued by the State Bank of Hyderabad, Khopat, Thane. Cheque bearing No. 542087, dated 02-05-2009, and cheque bearing No.542088 dated 02-06-2009, were also dishonored on the same ground. As such the opposite parties are compelled to impose the charges for delay and dishonour of the cheques and for that all the reminder notices and messages sent to the complainant to keep him on notice of the defaults committed by him, and the opposite party No.1 has no knowledge about the alleged balances maintained by the complainant, in his account from 01-11-2008 to 22-06-2009, but as submitted above the three cheques were dishonored. If really, the said cheques were not honored by his banker inspite of sufficient funds in the account of the complainant, it was the fault and actionable claim against the said banker but not against this opposite party and also further contended that the opposite parties never adopted any illegal activities and that due to the said acts, the complainant has not suffered mentally and the opposite parties are not liable to pay damages, as per the terms of agreement, the opposite parties have acted and kept the complainant on notice of his liabilities and also it was the duty of the complainant, to verify his account and see that the cheques were encashed or not and the opposite parties have not seized the vehicle so far. Hence, the allegations are false and baseless, the complainant has no cause of action to file the complaint and the alleged dates are imaginary and are mentioned to escape from the defaults, the forum has no jurisdiction, the opposite parties are not liable to pay any amount, much less to Rs.50,000/- towards damages, for the alleged mental agony, therefore, prayed to dismiss the complaint. 3. Opposite party No.2 filed a memo to adopt the counter of opposite party No.1. 4. On behalf of the complainant, the following documents have been filed and the same were marked as Exs.A.1 to A.11. Ex.A.1 - Xerox copy of the invoice issued by the opposite parties, dt.1-10-2008 Ex.A.2 - Notice given by the opposite party No.2, dt.7-5-2009 Ex.A.3 - Notice given by the opposite party No.2, dt.6-6-2009 Ex.A.4 - Reply given to opposite parties by the complainant, dt.23-5-2009 Ex.A.5 - Statement of Account showing the bank balance of the complainant from 1-10-2008 to 24-4-2009 Ex.A.6 - Statement of Account showing the bank balance of the complainant from 24-4-2009 to 22-6-2009 Ex.A.7 - Notice given by opposite party, dt.20-6-2009 Ex.A.8 - Notice given by opposite party, dt.4-7-2009 Ex.A.9 - Notice given by opposite party, dt.5-8-2009 Ex.A.10 - Notice given by opposite party, dt.5-10-2009 Ex.A.11 - Statement of Account bearing No.52050749645, showing the bank balance of the complainant from 1-7-2008 to 30-9-2009. 5. On behalf of the complainant, counsel for complainant filed written arguments. 6. Upon perusing the material papers on record and upon hearing the arguments, now the point that arose for consideration is, 1. Whether there is any harassment on the part of opposite parties? 2. Whether the complainant is entitled for the relief as prayed for? Point No.1: 7. In this case the complainant approached the opposite party No.1 to purchase an India DLS car under finance. For first installment, complainant paid an amount of Rs.7,420/-, for the remaining installments, the complainant had given 35 post dated cheques which was commenced from 2-11-2008. The opposite parties have withdrawn the cheque amounts from 2nd to 6th installments. On 7-5-2009 and on 6-6-2009 opposite parties sent two notices to the complainant demanding to pay Rs.350/- immediately, otherwise the amount will get adjusted from the next EMI. On receiving the notices, the complainant got issued detailed reply on 23-5-2009 stating that he is having more than sufficient amount in his account, to honor the cheques. To prove his contention, the complainant filed the bank statements issued by State Bank of Hyderabad, P & C B branch, Samkshema Bhavan, Khammam and the same were marked as Exs.A.5, A.6 and A.11. The opposite party No.1 raised an objection that 7th installment cheque No.542086, dt.2-4-2009 was presented for encashment and the same was dishonoured on the ground of funds insufficient and also 8th and 9th installments, for that State Bank of Hyderabad, Khopat, Thane issued a memo. Except the above contention in their counter, no material is filed. If, really, the cheques were dishonoured by the bank of the complainant, opposite party No.2 may inform the same to opposite party No.1, opposite party No.1 can take steps along with the complainant against the complainants bank. On 12-10-2009 counsel for complainant filed his written arguments along with statement of account of the complainant from 1-7-2008 to 30-9-2009 pertaining to the account No.52050749645, which clearly dispels the claim of the opposite parties. It is also evident from Ex.A.11 filed by the complainant that already 11 cheques were encashed up to 2-9-2009, which are equivalent to the statement page No.2 of invoice issued by the opposite parties. 8. It is evident from the record that after notice to reply given by the complainant, dt.23-5-2009, after filing the complaint before the Forum and even after filing vakalath by counsel for the opposite parties on 23-7-2009 also the opposite parties regularly sending notices to the complainant with regard to retainer charges, and also opposite parties in page No.3, para 12 of their counter stated that the opposite parties have not seized the vehicle which clearly shows the irresponsible and harassment behavior of opposite parties. 9. From the above, it is observed that the complainant is aged above 50 years, being a Govt. Employee, having sufficient funds in his accounts, no fault on his part, by the illegal activities of the opposite parties, he had undergone mental agony, pain and sufferance. The same was observed by the Honble National Consumers Disputes Redressal Commission, New Delhi in Magma Fincorp. Ltd., Vs. Vijay Kumar I (2010) CPJ 155 (NC) in para 9.C: It is to be stated that many Financiers/Banks are in race for giving loan for purchase of vehicles or various articles. After giving loan and taking interest in advance, the polite behavior changes because of the documents, which are signed on the dotted lines by the borrower. On occasions, barrower suffers harassment, torture, or abuses at the hands of the moneylender. Such a behavior is required to be prohibited and the process of repossession is required to be streamlined so as to fit in cultural civilized society. Let the rule of law prevail and not that of jungle where might is right. As such, the point is answered accordingly in favour of the complainant. Point No.2: 10. In the result, the complaint is allowed in part, directing the opposite parties to take appropriate steps for collection of future cheques and also directing the opposite parties to pay Rs.5,000/- towards mental agony, sufferance and Rs.1,000/- towards litigation costs to the complainant. Typed to my dictation, Corrected and pronounced by us, in this Forum on this 25th day of March, 2010. President Member Member District Consumers Forum, Khammam APPENDIX OF EVIDENCE -Nil- President Member Member District Consumers Forum, Khammam
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