Sunil Gupta s/o of Lohari Ram, Gupta Karyana Store, Main Road, near Kharmanda Elct. Store, opp. Kudu Knitwear Rehon Road, Ludhiana.
….Complainants.
Versus

1- Kotak Mohindra Bank Limited, 57A, Ist Floor, Krishna Tower, Sardar Patel Marg, C-Scheme, Jaipur through authorized signatory.
2- Kotak Mohindra Bank Limited, SCO 120, 6th Floor, Feroze Gandhi Market, Ludhiana-141001.
….Opposite parties.

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present: Sh. M.S. Sethi Adv. for the complainant.
Sh. Puneet Mittal Adv. for opposite parties.

O R D E R

T.N. VAIDYA, PRESIDENT:

1- Vide agreement no.858826, complainant obtained loan from opposite party, payable in monthly installments of Rs.3344/-. His few payment cheques got dishonoured and consequently, paid amount thereof in cash to opposite party. Subsequently, M/s J.M. Legal & Investment Bureau, Panchkula, Collecting Agents of opposite party, with approval of opposite party, asked him to pay entire dues of Rs.63000/-, as full and final settlement. Hence, that amount was paid vide receipt dated 14.9.2006, being final receipt. But subsequently, opposite party vide notice dated 22.4.2008, demanded Rs.3344/- due to dishonouring of cheque no.707971 dated 1.4.2008. Then he visited office of the opposite party, who did not care to his complaints. This issued notice and opposite submitted reply dated 28.4.2008 to the notice of the complainant. It is claimed that opposite party with malafide intention, after final settlement and receipt of Rs.63000/-, made a false case of dishonouring of the cheque by presenting it after many months, for illegal collection of one cheque. Hence, claimed it to be deficiency in service on part of opposite party, by filing this complaint under section 12 of the Consumer Protection Act, 1986, and sought compensation of Rs.40000/-and return of his post dated cheques qua transactions and letter dated 8.5.2008 of opposite party demanding Rs.43417/- be quashed and issued NOC in his favour and also claimed litigation costs of Rs.5500/-.



2- Opposite party admitted obtaining loan by the complainant, payable in installments. It is averred that loan of Rs.73000/- was taken by the complainant, who also executed agreement dated 29.12.2005 and agree to repay the loan in 36 monthly installments of Rs.3344/-. It is admitted that complainant in September, 2006, approached opposite party no.2 and expressed desire for fore closure of the loan account and at that time, it was conveyed that a sum of Rs.73726/- was payable by the complainant in lump sum, to foreclose the loan account. As complainant expressed inability to pay that amount, so opposite party agreed to waive off Rs.2000/- out of total overdue interest. Hence, asked complainant to pay Rs.71726/- for full and final settlement on or before 21.9.2006. Then he paid Rs.63000/- on 14.9.2006 and agreed to deposit balance Rs.8726/- by 21.9.2006. He then failed to make payment as agreed. Complainant has forged and fabricated receipt dated 14.9.2006, by putting a note as “Full and Final Receipt”. The counter foil of the receipt does not contain and bear any such nothing. Cheque dt. 14.3.2008 of the complainant issued by him, was dishonoured and as a result, notice was rightfully given to the complainant.




3- Both parties adduced evidence in support of their claims. We have heard ld. counsel for parties and gone through the record.



4- As obtaining of loan of Rs.73000/- by the complainant from opposite party, is admitted, so we don’t deed it necessary to refer evidence connected there with. Hence, would straightway come to the question whether one time settlement, to foreclose loan account, was for Rs.63000/-, as is case put up by the complainant, or the settlement was for Rs.71726/-, out of which Rs.63000/- payable by 14.9.2006 and Rs.8726/- on 21.9.2006.




5- We may say that receipt of Rs.63000/- on 14.9.2006 from complainant by opposite party, is not in dispute and rather stands admitted.




6- Ex.C1 is the receipt issued to the complainant on 14.9.2006 qua amount of Rs.63000/-. In Ex.C1, words “Final Receipt” are written in hand and thereunder, some person has put his signatures. Also written in the column of installments as “F.R.”. Whereas case of opposite party is that the words “Final Receipt” have been forged by the complainant, as on the office copy of the receipt, these words have not been written. Complainant showed us at the time of arguments, original of Ex.C1, containing words “Final Receipt”.




7- On behalf of opposite party, copy of this receipt dated 14.9.2006 Ex.C3, is produced. The words “Final Receipt”, are not mentioned herein. But words “F.R.” are recorded. According to ld. counsel for complainant, words “F.R.”, as mentioned in both receipts Ex.C3 of opposite party and Ex.C1 of complainant, stands for final receipt.




8- But according to ld. counsel for opposite party, “F.R.” does not stand for final receipt, but means foreclosure receipt. The receipt for Rs.63000/- was given as foreclosure receipt and not final receipt. As such, qua this receipt of foreclosure, we have two versions. On receipt Ex.C3 of the opposite party, the words “Final Receipt”, are not mentioned. Whereas such words are mentioned on Ex.C1, copy of the same receipt produced by the complainant. This means the words “Final Receipt” have been incorporated subsequently on the receipt. Who did it, there is nothing before us. After words “F.R.”, words “Final Receipt” subsequently were recorded, which words are missing from copy Ex.C3 produced by opposite party. So, it means there is some substance in allegations that receipt has been forged by making entry “Final Receipt”. But under letter Ex.D2 dated 10th September, 2006, appears that settlement was for Rs.71726/- out of which, Rs.63000/- were payable on or before 14.9.2006 and balance Rs.8726/- on or before 21.9.2006. It was subsequent to this foreclosure offer dated 10th September, 2006, that receipt Ex.C3 or Ex.C1 dated 14.9.2006 for Rs.63000/- took birth. So, it means out of this settlement of Rs.71726/- as agreed, Rs.63000/- was paid by complainant on 14.9.2006 and balance was to be paid on 21.9.2006.



9- Now question is when complainant failed to pay balance on 21.9.2006, what action against him, is taken by opposite party. Certainly, had receipt Ex.C3 or Ex.C1 been “Final Receipt” by foreclosure, then certainly complainant would have insisted for NOC from the opposite party. But he never demanded and obtained NOC. According to ld. counsel for opposite party, when complainant did not pay Rs.8726/- by 21.9.2006, started treating Rs.63000/- paid by the complainant, as per original agreement, by considering payment of installments of Rs.3344/- and when amount of those installments was completed by April, 2008, cheque of the complainant date 1.4.2008 was sent for collection, which got bounced.



10- In the light of above circumstances, appear that allegations of forgery have been levelled by opposite party against the complainant, by forging the words “Final Receipt” on foreclosure receipt. Such question requires deep investigation, probe and inquiry, by providing proper chance of cross examination to each party. To adopt such course is not possible for us in this summary proceedings. Hence, we refrain from deciding the matter and refer it to be decided by the court of competent civil jurisdiction.

Varinderpal Singh Gill s/o Sh. Sarwan Singh r/o VPO Sudhar, Tehsil Raikot, Distt. Ludhiana.

….Complainant.

Versus



1- M/s Kotak Mohindra Primus Limited, 6-G.F. Sant Ishar Singh Nagar, Pakhowal Road, Ludhiana.

2- Excel Credit an Associate of Kotak Car Finance, 6-G.F. Ground Floor, Sant Ishar Singh Nagar, Pakhowal Road, Ludhiana since represented through its partners Manish Khera, Manish Jain, Karan Partap Bains etc.

3- United India Insurance Company Limited, Branch Office, Samrala, District Ludhiana through its Branch Manager/Divisional Manager/Regional Manager.

….Opposite parties.

O R D E R



T.N. VAIDYA, PRESIDENT:




1- Complainant after availing loan of Rs.4 lacs from opposite party no.1, purchased Scorpio Mohindra bearing engine no.37331, chassis no.78818 on 14.5.2003 from M/s Makkar Motors, Jalandhar. Balance cost of the vehicle was made by the complainant from his own pocket. The vehicle was hypothecated with opposite party no.1, who consequently, took responsibility to get the vehicle registered in favour of the complainant from DTO, Ludhiana. Opposite party no.2 is the franchisee of opposite party no.1 and necessary formalities for registration of the vehicle, payment of road tax, were responsibilities of opposite party no.1 &2. The vehicle was insured with opposite party no.3 vide policy no.200601/31/03/00741, valid from 14.5.2003 to 13.5.2004. The vehicle was stolen on 31.7.2003 qua which FIR no.223 dated 31.7.2003 was lodged in P.S. Sarabha Nagar, Ludhiana. Opposite party no.3 was also intimated about theft, but opposite party no.3 failed to settle the claim, despite submission of documents, as demanded. Hence, issued legal notice dated 8.4.2005, but they illegally and wrongly repudiated the claim, on ground that vehicle lost on 31.7.2003, was got registered with DTO, Ludhiana, on 19.8.2003. Though it ought to have been registered with registration authority, as per provisions of law, within one month of purchase, which was not done. Against repudiation by opposite party no.3, complainant approached Insurance Ombudsman, Chandigarh, who vide order dated 18.5.2006, settled claim of the complainant on non standard basis, by admitting liability of opposite party no.3 to the extent of 60% admissible claim against theft of vehicle. So, in this complaint under section 12 of the Consumer Protection Act, 1986, complainant sought balance 40% of the loss amount of vehicle from opposite party. He claimed that the vehicle was not registered by opposite party no.1 & 2 within 30 days of purchase by the complainant, despite receipt of registration charges from him and there this act amounts to deficiency in service, by not providing appropriate services to the complainant, for which, were paid. Despite loss of the vehicle, complainant arranged to pay installments to opposite party no.1 and against loan of Rs.3,75,240/-, paid Rs.4,20,920/-. Consequently, opposite party no.1 & 2 are liable to pay compensation to him for deficiency in services, by paying 40% cost of the vehicle, has also claimed compensation of Rs.10 lacs alongwith damages of Rs.2 lacs.



2- Opposite party no.1 in reply has conceded financing vehicle of the complainant. But disputed claim of the complainant that they were responsible for getting the same registered. Under loan agreement, the borrower was responsible to get the vehicle registered and insured. So, his allegations that it was undertaken by them, to get the vehicle registered, are false and frivolous. Hence, not liable for payment of road tax etc. Complainant has no right to file complaint against them. No registration fee was ever paid to them by the complainant. Denied that a sum of Rs.16000/- was paid by the complaint to them, for preparing RC. Complaint is time barred. Filed with malicious intention. Complainant claimed not a consumer under them and the dispute pertains to the alleged breach of contract which can not be tried under the Consumer Protection Act, 1986. Thus, there is no deficiency in service on their part.



3- On behalf of opposite party no.2, written statement was filed by Sh. Manish Khera. He claimed in reply that complaint is not maintainable against him, as is time barred. Complainant has no cause of action against him. He denied himself to be partner of opposite party no.2, nor was associated with affairs of opposite party no.2 and he has been wrongly impleaded as party. So, complaint is bad for mis-joinder of parties. He denied purchase of vehicle by the complainant, after availing loan from opposite party no.1. For want of knowledge, denied that opposite party no.2 was franchisee of opposite party no.1. Rest of the allegations of the complainant have also been disputed and denied by him. Complainant never suffered any loss on his count. There is no deficiency in service on his part. He has nothing to do with opposite party no.2. Complaint against him, deserves dismissal.



4- Opposite party no.3 insurance company vide separate reply, admitted insuring Scorpio vehicle of the complainant. They averred that his insurance claim qua theft of vehicle, was rightly and legally repudiated. Alleged that theft took place on 31.7.2003 and the vehicle was registered by the complainant in his name on 19.8.2003. He wasn’t owner of the vehicle at the time. It is conceded that amount of Rs.3,59,000/- awarded by the Insurance Ombudsman, Chandigarh, is reasonable and not inadequate. The amount can not be received by the complainant under protest. They are not liable to pay compensation beyond Rs.3,59,000/-, nor any damages to the complainant. They have objected about maintainability of the complaint and that there was no deficiency in service. Complaint has no cause of action. Complainant himself did not come to receive the amount of Rs.3,59,000/-, offered by them and he also did not comply with the terms of release of the claim amount.



5- Contesting parties adduced evidence in support of their claims and stood heard through their respective counsels.



6- It is established beyond doubt that complainant had purchased Scorpio vehicle vide invoice Ex.C3, for Rs.6,13,791/- and obtained sale certificate Ex.C2 from Makkar Motors. The vehicle was assigned temporary registration no.PB-08/TEMP/AL-8643, as mentioned in certificate Ex.C4. The same vehicle was got insured by the complainant with opposite party no.3, vide insurance certificate Ex.C6, valid from 14.5.2003 to 13.5.2004. Qua theft of the car, complainant lodged FIR Ex.C9. Claim was lodged by him with opposite party no.3, which they repudiated vide letter Ex.C8 dated 11.4.2005, on ground that the vehicle was registered after theft, which occurred on 31.7.2003. Whereas, under Motor Vehicle Act, it was for the owner to have got it registered within one month from delivery of the vehicle. But it was registered on 19.8.2003. So, claim not payable.



7- Against repudiation of the claim vide letter Ex.C8 of opposite party no.3, complainant approached Insurance Ombudsman, who vide order Ex.C22 dated 18th May, 2006, due to theft of insured vehicle of the complainant, ordered insurance company opposite party no.3, to pay 60% of admissible claim to the complainant, after admitting him to be owner of the vehicle. This order of Insurance Ombudsman, was conceded correct by opposite party and resultantly, vide letter Ex.C16 dated 21st June, 2006, offered to pay Rs.3,59,000/- to the complainant, subject to giving final settlement certificate, NOC from financier, transfer of vehicle in the name of insurance company and submission of keys etc. Then they proceeded with the matter. Thereafter, opposite party no.3 vide communication Ex.C17 dated 26.9.2006, again sought consent of the complainant, to receive Rs.3,59,000/-, as full and final settlement, to issue cheque in his favour and same request was again repeated vide letter Ex.C18 dated 24.8.2006 and Ex.C19dated 20.12.2006. But it appears that complainant did not accept aforesaid condition put by opposite party no.3, for release of the amount of Rs.3,59,000/-, in terms of order of the Insurance Ombudsman. But during pendency of the complaint, he received Rs.3,59,000/- in full and final settlement of claim from opposite party no.3 and consequently, relinquished claim against opposite party no.3 and got complaint dismissed against them, vide his statement dated 9.4.2007. Hence, opposite party no.3 was deleted from the arrays of opposite party in this complaint.



8- It is in the scenario of aforesaid circumstances, argued on behalf of complainant that on account of lapse committed by opposite parties no.1 & 2, the vehicle was not registered before theft, due to which, he was paid only 60% of the cost of the vehicle and 40% is liable to be paid by opposite parties no.1 & 2. Because they have charged the complainant and undertaken to get the vehicle registered on his behalf. They failed to do their obligations. Hence, for such deficiency in service, would be liable to pay balance 40% cost of the vehicle to him.



9- On the other hand, this submission of complainant, was contested to be wrong by the ld. counsel for opposite party no.1, by denying undertaking to get the vehicle of the complainant registered or having received registration fee or charges for such purposes from him.



10- On behalf of opposite party no.2, Mr. Govind Puri Adv. argued that his client Sh. Manish Khera has wrongly been sued as partner of opposite party no.2. Whereas, he has nothing to do with opposite party no.2. Nor he is partner of opposite party no.2. There was no deficiency on his part, so complaint against him, requires dismissal.



11- We have perused the record.



12- Now question is whose responsibility it was, to get insured Scorpio vehicle of the complainant registered. Was it duty of opposite party no.1 or its franchisee opposite party no.2. Complainant has not been able to bring any material on the record, specifying that opposite party no.1, while financing the vehicle, had undertaken to get it registered or registration charges were paid by the complainant to them. Rather, the letters in this behalf, were addressed by complainant only to opposite party no.2 and not opposite party no.1. Ex.C11 is the letter dated 13th June, 2003, sent by complainant to opposite party no.2. Under this letter, he invited intention of opposite party no.2, to his earlier letter dated 30th May, 2003, for issue of RC of the Scorpio car. Thereafter, wrote letter Ex.C12 dated 30th June, 2003, Ex.C13 dated 10th July, 200, Ex.C14 dated 28th July, 2003, to opposite party no.2 on this subject, requesting them to arrange registration certificate of his vehicle at the earliest. All these letters of the complainant, were received by opposite party no.2 through Sh. Manish Jain and Karan Partap Bains, as partners.



13- So, it is apparent that complainant had requested opposite party no.2, to get his vehicle registered and furnish copy of RC to him. Opposite party no.2 then vide letter Ex.C15, approached opposite party no.3 Insurance Company of the vehicle, explaining delay in registration of the vehicle in the name of the complainant. This letter contains admission of opposite party no.2 that they are DMA, looking after business of marketing of opposite party no.1 and that the complainant had approached and applied for registration with them and deposited full tax for registration of the vehicle. They conveyed to opposite party no.3 that registration was delayed, as some special number was applied and number was in queue. For such reason, there was delay in getting the vehicle registered.



14- This aforesaid admission of opposite party no.2 in letter Ex.C15, clearly spells that they had undertaken job on payment from complainant, to get his vehicle registered. But their defence that complainant had asked for special number, is not born out on the record. Neither they had ever communicated to the complainant that the particular number was not available. Nor any request of the complainant for particular number for his vehicle, is placed on the record.



15- In these circumstances, it is apparent that registration of the vehicle was not done by opposite party no.2, whose services were engaged by the complainant, for such purpose. Hence, it was on account of not doing their duty by opposite party no.2 that complainant has to suffer to the extent of 40% of the total cost of the stolen vehicle. Because opposite party no.3 Insurance Company had paid 60% loss to the complainant, as assessed by Insurance Ombudsman. Had vehicle been got registered by opposite party no.2, complainant would not have been made to suffer loss of 40% cost of the same. Such act on part of opposite party, in these circumstances certainly, would amount to deficiency in service.



16- In view of above discussions, we allow this complaint against opposite party no.2, ordering them, to pay balance 40% cost of the vehicle out of total cost of Rs.6,43,791/- to the complainant within 30 days of receipt of copy of order. We make it clear that Sh. Manish Khera, sued as partner of opposite party no.2, is not proved as such partner. Hence, he won’t be liable for act of opposite party no.2. Only partners of opposite party no.2 namely Sh. Manish Jain and Karan Partap Bains, who had appended signatures on receipts of letters Ex.C12 to Ex.C14 on behalf of opposite party no.2, would be liable to pay the amount to the complainant.

Parshotam Lal Bansal S/o Sh. Jethu Ram Bansal, aged about 58 years, R/o Ward No. 9, Near Govt. Senior School, Bhucho Mandi, District Bathinda.
.... Complainant


Versus

1. Kotak Mahindra Prime Ltd., SCO 121, IInd Floor, Feroze Gandhi Market, Near Bhaiwala Chowk, Ludhiana through its Incharge/Chief Executive Officer/Authorised Person.
2. Kotak Mahindra Prime Ltd., SCO-60, Phase-I, Model Town, Bathinda through its Branch Manager/Incharge/Authorised Person

..... Opposite parties

O R D E R.


1. Sh. Parshotam Lal Bansal has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against the opposite parties with the allegations that he availed the facility of loan of Rs. 2,00,000/- from opposite party No. 2 in the month of December, 2002 vide loan agreement No. 42302493/01 which was repayable in 60 equal monthly instalments of Rs. 4,325/- each commencing from December, 2002 to November, 2007. The complainant repaid the total amount of Rs. 2,59,500/- i.e. the loan amount of Rs. 2,00,000/- plus Rs. 59,500/- as interest against the loan. The complainant issued post dated cheques of each instalment of Rs. 4,325/- each in favour of the opposite parties out of his bank account No. 21795 drawn on Oriental Bank of Commerce. All the cheques so issued by the complainant were duly honoured and the amount was received after the clearance of the entire loan plus interest amount.

The complainant approached opposite party No. 2 for issuance of Clearance Certificate/No Objection Certificate regarding the clearance of loan amount and regarding no objection for the removal of hypothecation entry from the registration certificate of his car bearing No. PB-03K 1516. However, opposite parties paid no heed to his requests. Ultimately, the complainant sent a letter to opposite party No. 2 requesting them to issue the requisite No Objection Certificate, but it was also not honoured. The complainant before that received letter dated 21.12.2007 from the Chief Executive Officer of Kotak Mahindra Prime Ltd. whereby the complainant was appreciated for the repayment of the loan well within limit and as a honour, he was further offered a personal loan of Rs. 1,08,125/- against the aforesaid car.



2. The complainant suddenly received letter dated 22.1.2008 from the opposite parties whereby he was told that one of his cheque bearing No. 799997 of November, 2006 for Rs. 4,325/- has been lost. Therefore, the complainant was required to deposit the said amount or issue another cheque in lieu thereof. The complainant contacted opposite party No. 2 and apprised the factual position, but they did not pay any heed to his requests. The complainant made all out efforts to apprise the opposite parties that all the post dated cheques issued are shown to have been debited from his account and he has no liability to pay further sum, but the opposite parties did not agree to his request.



3. The complainant made all out efforts to get the No Objection/Clearance Certificate from the opposite parties in order to enable him to sell his car after the clearance of the loan amount, but he could not do so because opposite party No. 2 did not issue him No Objection Certificate.



4. The complainant has sought direction to be issued to opposite party No. 2 for the issuance of No Objection Certificate/Clearance Certificate in respect of aforesaid vehicle and also he has claimed damages to the tune of Rs. 50,000/- on account of mental tension, agony and on account of decrease in the price of the car and an amount of Rs. 5,000/- as litigation expenses.


5. The opposite parties contested the complaint by raising preliminary objections that there is no deficiency in service on their part; complainant has no locus-standi and cause of action to file the present complaint against them; he is not consumer within the meaning of the Consumer Protection Act and the complaint requires to be adjudicated upon only through the civil court; this Forum has no territorial jurisdiction to try and decide the complaint and the complainant has concealed material facts and therefore, complaint is liable to be dismissed.

On merits, the facts mentioned in the complaint are denied and it has been asserted that since one of the cheque of the complainant could not be encashed, for that reason, No Objection Certificate was not issued. The opposite parties called upon the complainant to make the payment of one instalment of Rs. 4,325/-, but the same has not been paid till date.



6. The complainant and opposite parties in support of their respective assertions have led their evidence. The complainant filed his affidavits Ex.C.5 & Ex.C.9 and tendered documents such as letter dated 5.12.2007 Ex.C.1, letter dated 21.12.2007 Ex.C.2, demand notice dated 22.1.2008 Ex.C.3, repayment schedule report Ex.C.4, statement of account of complainant Ex.C.6, letter Ex.C.7 of the complainant addressed to the Chief Executive Officer of Kotak Mahindra Prime Ltd., Mumbai about the encashment of cheque No. 799997 dated 1.11.2006 cleared by the banker of the complainant on 11.11.2006 and statement of account dated 25.10.2006 Ex.C.8 of Kotak Mahindra Prime Ltd. in respect of complainant car finance alongwith collection of the cheques issued by the complainant in favour of the opposite parties in respect of his car loan finance from November, 2002 to November, 2007(three leaves).


7. To controvert the evidence of the complainant, opposite parties have brought on the record affidavit Ex.R.1 of Sh. Vijay Kumar, Manager of Kotak Mahindra Prime Ltd., Bathinda and also statement of account Ex.R.2 regarding encashment of the cheques issued by the complainant (eight leaves).


8. We have heard both the counsel for the parties and perused the entire record of the case carefully


9. The complainant through his affidavit Ex.C.5 has proved that he took loan from the opposite parties and as per the terms of his loan agreement, the loan amount alongwith interest i.e. Rs. 2,00,000/- plus Rs. 59,500/- as interest was payable in 60 equal monthly instalments of Rs. 4,325/- each commencing from December, 2002 to November, 2007. As per his affidavit Ex.C.5, he handed over 60 post dated cheques to opposite parties which were regularly honoured through his account and this fact was acknowledged by opposite parties vide letter dated 21.12.2007 Ex.C.2.

The complainant vide letter dated 5.12.2007 Ex.C.1 requested the Branch Manager of Kotak Mahindra Prime Ltd., Bathinda that he has made payment of all the instalments of his car loan and the last instalment of loan payment was made on Ist November, 2007. Therefore, he may be issued No Objection Certificate at the earliest. This letter was replied to by the opposite parties vide letter dated 22.1.2008 Ex.C.3 wherein opposite parties have shown their inability to issue No Objection Certificate as one of the cheque bearing No. 799997 dated November, 2006 for an amount of Rs. 4,325/- was lost and it was not credited to in their account.

The complainant in his affidavit Ex.C.5 urged that as per the bank statement of his account, the cheque was cleared by his bankers in favour of the opposite parties and despite his repeated requests, No Objection Certificate was not issued. Lastly, complainant wrote letter Ex.C.7 making it clear to the opposite parties that cheque No. 799997 dated 1.11.2006 alleged to have been lost/misplaced, has been cleared/paid by the bankers of the complainant in the credit of the opposite parties's account on 11.11.2006 and therefore, No Objection Certificate may be released in his favour. In support of his assertions, he has brought on the record the details of the cheques he issued alongwith the details of the cheques honoured in the account of the opposite parties.

The statement Ex.C.8 reveals that a total sum of Rs. 2,59,500/- has been credited in the account of the opposite parties in respect of the car loan account of the complainant and no cheque remains unpaid. The claim of the opposite parties that the credit of one cheque till date has not been given to the opposite parties and the complainant is in default of one instalment of Rs. 4,325/- is not proved on the record.


10. Sh. Vijay Kumar, Manager of Kotak Mahindra Prime Ltd., Bathinda in his affidavit Ex.R.1 has not given any details of the cheque which was not infact encashed or credited in the account of the opposite parties. In the demand letter dated 22.1.2008 Ex.C.3, the number of the cheque which was allegedly not credited/encashed has been given as 799996 for the month of November, 2006, whereas as per the statement of account Ex.R.2 filed by the opposite parties reveals that cheque No. 799997 which was initially dishonoured in November, 2006 was later-on honoured and the credit of Rs. 4,325/- was given in the account of opposite parties.

As per this statement, in December, 2006 another amount of Rs. 4,325/- has been shown to have been received in the account of the opposite parties, but the number of the cheque is not even. Otherwise also, it is not a disputed fact that complainant handed over post dated cheque No. 799997 to opposite parties and it was in the custody of the opposite parties.

The opposite parties were required to get the same encashed in November, 2006 and thus, there was no liability on the part of the complainant as he had no role to play for the encashment of the said cheque. The statement of account Ex.R.2 (eight leaves) brought on the record does not reveal any default or bouncing or non-encashment of post dated cheques of the complainant. The statement of account Ex.C.8 reveals at Sr. No. 47 and 48 that cheque No. 799996 and cheque No. 799997 for an amount of Rs. 4,325/- each were credited on due dates and a total amount of Rs. 2,59,500/- was regularly and punctually paid in 60 instalments in the account of the opposite parties and same amount stands debited in the account of the complainant. Thus, there appears no scope for missing credit of any period.



11. That it appears from the perusal of letter dated 21.12.2007 Ex.C.2 issued from the office of opposite parties to the complainant wherein opposite parties have appreciated the complainant for his regular EMI payments and as a gesture of honour, complainant was offered a facility of easy pre-approved personal loan of Rs. 1,08,125/- on his existing car loan. It is highly surprising that after writing letter dated 21.12.2007 Ex.C.2, opposite parties on receipt of request for the issuance of No Objection Certificate from the complainant, raised a demand vide letter dated 22.1.2008 Ex.C.3 for an amount of Rs. 4,325/- in respect of lost cheque bearing No. 799997 for November, 2006. If there would have been no encashment of cheque No. 799997 for November, 2006, opposite parties would not have sent letter dated 21.12.2007 Ex.C.2 for appreciation of the complainant for his regular EMI payments.


12. From the entire record of the case and evidence as has been referred to above, it appears that the opposite parties have not acted bonafide while responding to the request of the complainant to issue No Objection Certificate in respect of his car after payment of the entire loan plus interest by the complainant. The action of the opposite parties thus definitely, fall within the ambit of “deficiency in service”, as a result of which, complainant has to suffer mental agony, unnecessary harassment and also for the reason that he could not sell his car to potential buyers for want of No Objection Certificate from the opposite parties.



13. We, accordingly, proceed to allow the complaint and direct the opposite parties to issue No Objection Certificate/Clearance Certificate to the complainant and also in addition to that, to pay an amount of Rs. 5,000/- as damages to the complainant on account of mental tension, agony, unnecessary harassment and also for diminishing the value of his car for delaying the sale of the same which has definitely resulted in the decrease of the price of the car.


14. We further direct that opposite parties shall also be liable to pay an amount of Rs. 1,000/- as litigation expenses.

The complainant and his wife had entered into an agreement on 7/3/2005 with the 2nd Opposite party branch and availed a personal loan by the 2nd Opposite party. As per the above agreement the petitioner had to repay the loan amount in 24 equal monthly instalments of Rs.10,750/- each starting from 1/4/05 to 1/3/07. The complainant had handed over 24 post dated cheques of his account maintained in Catholic Syrian Bank, College Road Branch, Thrissur to the 2nd respondent. These cheques bear No. 224051 to 224070 and 224031 to 224034 respectively. Besides these post dated cheques the complainant was also made to issue another post dated cheque bearing No.2224035 of the same branch amounting to Rs.2,00,000/- as security to the loan.

As per the repayment schedule the 2nd instalment due to the respondent bank was given as per chequeNo.224052 dated 1/5/05 was presented by the 2nd respondent and was cleared on 6/5/05. But one of the staffs of the 2nd respondent bank telephoned the complainant and told that the post dated cheques towards the payment of 1st and 3rd instalment have bounced for the reason that of insufficient funds in the complainant’s account. On enquiry with the complainant’s bank it was realized that the cheques for the 1st and 3rd instalments had not been presented for collection. The complainant issued a lawyer notice but no reply was given. Subsequently the complainant received a letter asking to repay the amount by cash or Demand Draft. The complainant was not willing to repay the amount for which the cheque had not been presented. He insisted to return the cheques to him or status of the missing cheque be given to him in writing. In the meanwhile the other cheques were presented and honoured. At the same time the 2nd opposite party was enquired about the status of the cheques which was handed over to them. Ultimately the 2nd opposite party issued a letter to the complainant stating that the two cheques were lost in transit. Hence this complaint to compensate the loss sustained to the complainant by the deficiency in service.

2. The respondents were called absent and set exparte.

3. The complainant has filed affidavit and produced 7 documents to prove his case.

4. Points: The complainant entered into an agreement with the respondents and availed a loan for Rs.2 lakhs. The loan amount was to be repaid by 24 equal monthly instalments of Rs.10,750/- each. The complainant handed over 24 cheque leaves bearing Nos.24051 to 224070 and 224031 to 224034. From Exhibit P2 letter it is clear that the respondent have received these cheques. It was also evidenced from Exhibit P7 letter that the disputed cheques were lost in transit and hence those remain unpaid. And the complainant was blaming for the loss by one of the respondents staff. There is no evidence to the contrary and the respondents are liable to compensate for the mental agony, ill feel and abusement made by one of their staff.

5. In the result the complaint is allowed and the respondents are directed to pay Rs.10,000/- (Rupees Ten thousand only) as compensation with cost of Rs.500/- (Rupees Five hundred only) within one month.

Hassan Bava,

Prop: Thawakkal Gunny Stores,

Ganadabettu, Kannur,

Mangalore Taluk,

Dakshina Kannada. …….. COMPLAINANT






VERSUS



Kotak Mahindra Primus Ltd.,

No.8 Mahendra Arcade,

K.R. Rao Road, Karangalpady,

Mangalore – 575 003.

Dakshina Kannada. ……. OPPOSITE PARTY









1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

The Complainant claims to have purchased a TATA SUMO vehicle bearing Registration No.KA/19M/9529 on 25.1.1997 by entering into a Hire Purchase Agreement with the Opposite Party. He contends that he had initially paid a sum of Rs.74,000/- to the Opposite Party as security deposit and further contends that he was made to sign on Hire Purchase Agreement and other papers in blank. He also contends that he was not enlightened about the number of installments and the amount of each installment to be paid by him. He further contends that his signatures were taken by the Opposite Party on 36 blank cheques and one K.Hameed, Proprietor of Hotel Mubarak, Kannur, Mangalore was the surety for the agreement. According to him, copies of the Hire Purchase Agreement and other documents were not given to him inspite of repeated requests made to one Basavaraj and Maxi Pinto who were the persons who played important rolls in bringing out the hire purchase agreement.


The Complainant contends that he was away in Bangalore in between 15.5.1997 and 30.5.1997 and during those days he kept his vehicle in a garage at Uppala. During that period, the Opposite Party is said to have seized the vehicle without information to the Complainant. The Complainant contends that this act of the seizure of the vehicle was unauthorized and has resulted in deficiency of service on the part of the Opposite Party causing inconvenience and loss to the Complainant. The Complainant contends that he had no notice of seizure nor notice of default of installments of the Hire Purchase and hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to redeliver the vehicle to the Complainant and to refund Rs.74,000/- deposited by the Complainant with the Opposite Party and also to return all the 36 cheques and to pay cost of the proceedings.



2. Version notice served to the Opposite Party by RPAD.

Opposite Party appeared through their counsel filed version contended that under the Hire Purchase Agreement the Complainant had to pay 36 monthly installments of Rs.12,300/- and in case of default he was also liable to pay additional interest at 3% on each installment and Rs.250/- as representation charges. It is also contended that the Complainant has committed default right from the second installment inspite of repeated requests and demands and therefore the Opposite Party was constrained to seize the vehicle under the terms of the agreement and denied deficiency of service and prayed for dismissal of the Complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:



(i) Whether the Complainant proves that the Opposite Party has committed deficiency in service?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?













(iii) What order?



4. In support of the complaint, Mr. Hassan Bawa (CW1) filed affidavit reiterating what has been stated in the complaint and subjected himself for cross-examination. One Mr.Hameed (CW2) – Proprietor of Hotel Mubarak and one Mr.Siddique (CW3) filed affidavit on behalf of the Complainant but not answered the interrogatories served on them. Ex C1 to C17 were marked for the Complainant as listed in the annexure. Ex R1 to R8 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.
REASONS



5. Point No.(i) to (iii):

The above complaint filed against the Opposite Party for deficiency in service as the Opposite Party has seized the vehicle from the custody of the Complainant without any seizure notice and claimed refund of the security deposit and compensation.

In the instant case, on behalf of the Complainant CW1 to CW3 examined but the Opposite Party has not participated in the enquiry in the initial stage. After hearing the Complainant this Forum allowed the complaint on 31.3.2001 directing the Opposite Party to restore the possession of the vehicle. As aggrieved by the said order the Opposite Party preferred an appeal No.365/2001 before the Hon’ble State Commission and the appeal was allowed the matter was remitted back to FORA for fresh enquiry. After the remand no notice of hearing was served to the Opposite Party and again the Opposite Party failed to participate in the proceedings again the complaint was allowed by upholding the previous order and once again the Opposite Party preferred an appeal No.1711/2004 before the Hon’ble State Commission and the appeal was allowed the matter was again remitted back for fresh enquiry. This is the 3rd round litigation.

After the remand both the parties appeared and the Opposite Party amended the version, led evidence and documents produced which are marked as Ex R1 to R8.

The main dispute involved in this case is that, the vehicle of the Complainant was seized by the Opposite Party under hire purchase agreement and default notice was not issued before seizure of the vehicle. The Opposite Party herein contended that no notice of default is required as alleged by the Complainant and relied Ex R1 i.e., hire purchase agreement. We have gone through the hire purchase agreement produced before the FORA. There is a clause No.13 in the said agreement to the effect that the agreement may be terminated by the owner in the event of default in payment of any sum payable by the hirer under the agreement. Clause No.14 of the agreement enumerates the rights of the owner to terminate the agreement and on termination of the agreement, the owner is entitled to enter upon the premises and take possession of the vehicle without being liable in any manner whatsoever.

The main contention of the Opposite Party before the FORA is that on default of the Complainant to pay the installments the Opposite Party has exercised its right of termination of the agreement and seized the vehicle.

Now the point for consideration is that, whether the Opposite Party on default of payment of installments has exercised the right to terminate the agreement before affecting the seizure? The Opposite Party vehemently contended that on the termination of agreement the owner or its solely authorized agent shall be entitled to enter upon the premises where the product situated and take possession of the product without being liable in any manner whatsoever. From the terms of the agreement it is very clear that the Opposite Party can exercise the right to seize the vehicle only after the termination of the agreement and not earlier to that. The termination of agreement cannot be automatically.


The termination of agreement means when the Complainant defaulted in payment of installments the agreement has to be terminated in writing by issuing a notice. Without there being the Opposite Party cannot take repossession of the vehicle. But in the present case, even if we consider that the Complainant is default in payment of monthly installments the Opposite Party cannot straightaway enter into the premises and seize the vehicle without there being termination of the agreement in writing. But in the present case, there is no notice of termination of agreement in writing the Opposite Party straightaway seized the vehicle forcibly.

However, we have placed reliance upon the authorities reported in III (2007) CPJ 161 (NC) between Citicorp Maruti Finance Limited versus Vijayalaxmi, wherein the Hon’ble National Commission held that the money lender/financier is not dealing in purchase only thereafter hiring of vehicle. If the vehicle is purchased by the consumer in his own name/registered in his name earnest money is paid by consumer. Then it is clear that ownership of the vehicle is that of the consumer not the financier or the money lender.

Similarly in the present case, the Opposite Party is a financier he cannot step into the shoe of the Complainant until and unless the agreement is terminated in writing. In the present case the same was not done. Under such circumstances, we hold that the seizure of the vehicle by the Opposite Party was premature which amounts to deficiency. The vehicle without there being termination of the agreement is unlawful.

Now comes to the relief. It could be seen that in the month of January 1997 the Complainant entered into a Hire Purchase Agreement with the Opposite Party for a sum of Rs.3,14,000/-. It is admitted that on 25.1.1997 the hire purchase agreement was entered between the parties and the vehicle was re-possessed by the Opposite Party on 26.5.1997 without there being any seizure notice. The Opposite Party submits that he had paid only two installments. That means the vehicle was repossessed immediately after the default and admittedly the vehicle was new vehicle and the same was auctioned and the vehicle has been transferred to the 3rd parties. The case is of the year 1997 and now we are in 2009, to restore the possession of the vehicle will not meet the ends of justice. By considering the above facts and circumstances of the case, we hereby direct the Opposite Party to pay Rs.3,69,071/- being the value of the vehicle subject to the adjustment of the loan amount.


Further the Opposite Party is entitled to collect interest for the defaulted installment and not other installments. And rest of the amount shall be paid to the Complainant along with interest at 9% p.a. from the date of seizure till the date of payment. However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation. And further Rs.2,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party is hereby directed to pay to the Complainant Rs.3,69,071/- (Rupees three lakh sixty nine thousand and seventy one only) being the value of the vehicle subject to the adjustment of the loan amount. Further the Opposite Party is entitled to collect interest for the defaulted installments. The remaining amount shall be paid to the Complainant along with interest at 9% p.a. from the date of seizure till the date of payment. And further Rs.2,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Dr. Ravinder Singla, ENT Specialist, Primary Health Centre, Goniana, Tehsil and Distt. Bhatinda.



…..Complainant.

Versus



1- Kotak Mahindra Old Mutual Life Insurance, The Mall, Ludhiana (Punjab) through its Branch Manager.

2- Kotak Mahindra Old Mutual Life Insurance Limited, Regd. Office: 9th Floor, Godrej Coloseum, Behind Everard Nagar, SION (East) Mumbai- 400022 through its Authorized Signatory.



…..Opposite parties.







O R D E R



1- Relief claimed by the complainant in this complaint under section 12 of the Consumer Protection Act, 1986, is to direct opposite party, to issue insurance policy in his favour and also to award compensation of Rs.50,000/- for deficiency in services and Rs.10,000/- as litigation costs in his favour.

2- Case of the complainant is that he obtained Term Insurance Policy from opposite party on 11.3.2008, by paying premium of Rs.5621/- vide receipt no.103481 dated 11.3.2008 in its Bhatinda branch. Subsequently, vide voucher no.15205459 dated 30.3.2008, opposite party conveyed to the complainant that his proposal no.00979658 has been accepted and the policy would be issued, within a week by their Ludhiana office. But grouse of the complaint in this complaint is that he has not received policy documents despite repeated letters, reminders and personal visits of opposite party. Such act on part of opposite party, claimed amounting to deficiency in service, which they failed to comply, despite legal notice dated 15.6.2008.

3- Opposite party contested the complaint, by converting allegations of the complainant. It is prayed by them that complaint is not maintainable, this Fora has no jurisdiction to entertain the complaint, as complainant failed to show any deficiency in service on their part and complaint is frivolous. It is denied that complainant on 11.3.2008, took Term Insurance Policy from them. Rather, complainant on 25.3.2008, submitted a duly filled proposal application form dated 25.3.2008 for Kotak Preferred Term Plan and alongwith the proposal, remitted Rs.5618/- towards proposal deposit qua which, was issued receipt dated 30.3.2008. His proposal was never accepted and consequently, denied that opposite party vide voucher no.15205498, intimated complainant qua acceptance of his proposal and that policy would be issued within a week.


Complainant is trying to mislead the facts, to suit his own convenience. Insurance policy is not issued, unless all formalities are complied with, including undertaking medical examination. Complainant while filling the proposal form, had undertaken to undergo medical tests, required by opposite party company, for issuance of a policy. Contract does not come into existence by mere signing of the proposal form. His proposal form was never accepted, so no insurance contract had come into existence between the parties. As per requirement of the plan, complainant was required to undergo medical examination, so opposite party was unable to assess his proposal and issue the policy.


Resultantly, opposite party had issued refund cheque no.32270 dated 9.5.2008 for Rs.5618/- to the complainant and complainant was also informed to collect it from branch of opposite party, but he failed to do the same. In the meantime, legal notice dated 14.6.2008 was received from the complainant, through his advocate, which was replied vide reply dated 14.7.2008. Subsequently, final reply was given by opposite party, vide letter dated 2.9.2008 and complainant was intimated that his proposal has been rejected and cheque bearing no.32270 dated 9.5.2008 for Rs.5618/- which was not collected, was also sent to the complainant. There is no deficiency in service or negligence on their part. Complainant has cause against them and complaint deserves dismissal.

4- In order to prove their respective cases, both parties adduced evidence by way of affidavits and documents.

5- Both ld. counsels for parties stood heard and record minutely gone through.

6- The material which complainant is able to place on the record in support of his allegations, is acknowledgement Ex.C1 dated 11.3.2008 issued in his favour by opposite party, qua receipt of proposal for life insurance. Alongwith, opposite party had issued receipt Ex.C2 dated 30.3.2008, acknowledging receipt of Rs.5618/- qua his proposal no.00979658. When opposite party failed to issue insurance certificate to the complainant, he through his counsel, issued legal notice Ex.C4 dated 15.6.2008, which stands answered by opposite party, vide reply Ex.C5 dated July 14, 2008. Vide this reply, they sought time to look into details of his allegations, promising detailed reply of his notice at the earliest.

7- The detailed reply Ex.C6 dated 2.9.2008 was issued by opposite party to the complainant, claiming that his legal notice was frivolous, misleading and false. It was conveyed to the complainant that his proposal for insurance wasn’t accepted and consequently, premium amount of Rs.5618/- was refunded vide cheque dated 9.5.2008 and complainant was informed to collected the same, but he failed to do so. It was further conveyed thereunder that again refund cheque dated 9.5.2008 of Rs.5618/- is being sent to his client.

8- Vide letter Ex.C7 dated 29th August, 2008, opposite party had conveyed to the complainant that his proposal for life insurance has been cancelled, enclosing refund cheque for the amount of Rs.5618/- to him. Ex.C6 and Ex.C7 were sent through registered envelope, as evidenced by receipt Ex.C8.

9- Opposite party in support of their defence, have placed reliance on affidavit Ex.RW1/A of Sh. R. Mahesh Kumar, its vice president. Appears from this affidavit that complainant had submitted insurance proposal form Ex.R1, alongwith insurance premium amount of Rs.5618/- vide receipt Ex.R3. But after receipt of proposal, they never issued policy in his favour and when complainant served notice Ex.C4 dated 15.6.2008, they vide reply Ex.R4 dated 14th July, 2008, took time to furnish detailed reply, which was given vide reply Ex.R7 dated 2.9.2008. His policy was not accepted and complainant was accordingly intimated, refunding the premium so sent by him. The notice was received by the complainant, vide acknowledgement Ex.R8 and Ex.R9.

10- It is in these circumstances, matter for consideration whether after making proposal for insurance and paying premium, insurance company is liable to accept the proposal and provide insurance coverage to the applicant.

11- At the outset, we may state that insurance company under legal system and on the basis of applying for insurance coverage by the applicant, is not bound to accept such proposal, by accepting the proposal of the proposer and covering him under the insurance policy. Insurance company would be at liberty either to accept or reject such proposal and convey decision of rejection to the proposer, within a reasonable period. Consequently, question in this case is whether proposal of the complainant was rejected by opposite party, within reasonable period and refunded the amount of insurance premium to him, also within reasonable time, so as to exonerate them from the liability of not rendering proper services to the complainant.

12- Reasons intimated by opposite party to the complainant, vide their letter Ex.C7 dated 29th August, 2008, simply conveyed as under:-

“We wish to inform you that your application for life insurance vide proposal no.00979658 has been cancelled and the refund cheque for the initial deposit paid by you, is enclosed as per details given 0below”.

13- Therefore, it was under this communication Ex.C7 dated 29th August, 2008 that cancellation of the proposal was conveyed to the complainant and cheque of Rs.5618/-, amount of which complainant had remitted for purchasing insurance cover, was refunded to him, vide cheque no.32270. No reasons for cancellation of the proposal were incorporated in the communication, or conveyed to the complainant.


However, at the time of arguments, it was contended that complainant failed to undergo medical examination, which was necessary, to provide him insurance coverage and due to such failure on his part, the policy was not accepted. But we are not convinced by this contention. Because such reason that he failed to undergo medical examination and then policy cancelled, was never communicated to him. Neither opposite party have placed on record, any material to show that they ever called upon the complainant after submission of proposal by him, to undergo medical tests, before accepting his proposal. Such plea appears to be an after thought, hence liable to be rejected.

14- Admitted aspects are that complainant filled proposal application Ex.C9 on 25.3.2008 and on the same day, remitted premium vide cheque of Rs.5618/-. Receipt of that amount was acknowledged by opposite party, vide receipt dated 30.3.2008. But defence of opposite party had issued refund cheque no.32270 dated 9.5.2008 for Rs.5618/- to the complainant and informed complainant, to collect the same from their branch office, is also not proved on the record. Neither opposite party has placed on the record, such intimation given to the complainant, requiring him to collect cheque from branch office of the opposite party. In absence of any material or proof, giving such intimation to the complainant, the plea can not be accepted to be true, despite the fact that opposite party has placed on the record, copy of that cheque Ex.R3 dated 9.5.2008.


The cheque could have been drawn by opposite party, by putting any date. Possibility of putting back date on this cheque, can not be brushed aside. Had actually, cheque Ex.R3 drawn on 9.5.2008, they would have forwarded it to the complainant, as was done by them subsequently under reply of the notice, Ex.R7 dated September 2,2008, issued by opposite party, in answer to legal notice dated 15.6.2008(Ex.C4) of the complainant. On receipt of notice Ex.C4, opposite party initially vide reply Ex.R4 dated 14th July,2008, took time to give detailed reply to the notice dated 15.6.2008(Ex.C4) of the complainant.


Subsequently, after one and a half months, final reply Ex.R7 dated 2.9.2008 was given, conveying that proposal of the complainant has not been accepted and refunded amount of Rs.5618/- vide cheque no.32270 dated 9.5.2008. If they could send the cheque dated 9.5.2008, under reply Ex.R7 dated 2.9.2008, could have sent it earlier to the complainant. So, in absence of any proof, we are not convinced by plea of opposite party that complainant was informed to collect cheque dated 9.5.2008 for Rs.5618/-.

15- This means that amount of Rs.5618/- which opposite party had received as premium for insurance proposal of the complainant on 30.3.2008, was retained by them, without any justification or cause upto 2.9.2008. During this period, they never called upon complainant, either to get himself medically examined, nor took any decision on his proposal. Rather sat over the same till compelled by complainant, vide his legal notice Ex.C4 dated 15.6.2008. Such delay which was caused by opposite party in rejecting the proposal, in our view, certainly would amount to deficiency in service on part of the insurance company.

16- In coming to aforesaid conclusion, we are influenced by decision of the Hon’ble National Commission, reported in Rajendra Plastics Vs New India Assurance Co. Ltd. & Ors. 2004 NCJ-16(NC). In that case, there was a delay by insurance company, for issuing the main policy from the date of proposal. Same was held to be deficiency of service.

17- Non supply of policy to insured, is deficiency in service, as held in Hundi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. Vs Oriental Insurance Co. Ltd., Landmark Judgments on Insurance(2004 Page-147)(NC).

18- As deficiency on account of delay in rejecting proposal of the complainant, is foregone conclusion, so question is to what extent, loss was suffered due to such act of the opposite party, by the complainant. According to the complainant, his one year was wasted on account of rejection of the policy and due to increase of his age, was required to pay higher premium, for taking insurance coverage. But there is no evidence that complainant subsequently from any company, obtained insurance coverage. But certainly, his cause is prejudiced, affected, must have suffered monetary loss, due to wrongful rejection of his proposal, without conveying any reason.


Therefore, we allow this complaint and sequel thereto, direct opposite party for deficiency in service, to pay compensation of Rs.5000/- and litigation expenses Rs.2000/- to the complainant. Order be complied within 45 days of receipt of copy of order. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Anjana Goyal wife of late Sh. Krishan Goyal, resident of 5 Subash Nagar Motia Khan Mandi, Gobindgarh, Distt. Fatehgarh Sahib.

(Complainant)

Vs.



1. The Chairman, Kotak Mahindera Primus Ltd. 36-38A Nariman Bhavan, 227 Nariman Point Mumbai, 400- 021.



2. Executive (Collections) Sh. Sharanjit Singh Sabharwal, Kotak Mahindera Primus Limited, 1st Floor, SCO No.123, Firoz Gandhi Marg, Ferozepur Road, Ludhiana-141001.

(Opposite parties)





O R D E R

1. In this complaint under section 12 of the Consumer Protection Act, 1986, prayer of the complainant is to direct the opposite parties to pay her compensation of Rs.5,00,000/- with interest and set aside the demand of Rs. 2,69 582/- raised by the opposite parties against her.

2. As per averments of the complaint, complainant took loan of Rs. 2,70,000/- on 23.9.2002 from the opposite party for purchase of a car (registration no. PB-10F (T) 7793). With the loan amount and her own contribution of Rs. 1,50,000/- purchased Hyundai car. Loan instalments were regularly paid till October,2003. Then the complainant was involved in a false case, due to which was confined to jail from 29.9.2003 to 4.12.2003. Hence, could not deposit the loan instalments in time.


Taking advantage of her absence, opposite party forcibly took possession of the car, documents of which including RC, Insurance were already in possession of the opposite party. Due to her confinement in jail, her husband suffered heart attack on 28.10.2003 and ultimately expired on 23.1.2004. After issuance of legal notice, opposite party through Sh. Brijesh Puri and Saranjeet Singh promised to return the car. But instead, they sold the same at lower rate than prevailing market price without any notice of sale to the complainant. Thereby, they caused loss of Rs. 1,58,850/- to her by selling the car at lower price. Subsequently, opposite party raised demand of Rs.2,69,582/- against this loan, which is illegal and opposite parties are guilty of resorting to unfair trade practice by making such demand.

3. Opposite parties in reply pleaded that this compliant is not maintainable. As complainant had earlier filed a complaint on these very allegations and at the time of final arguments she withdrew that complaint. Written arguments in that complaint were filed by the opposite party and arguments were heard by the Fora, thereafter dismissed the same as withdrawn on technical grounds.


That order is final and such order can not be altered by filing a fresh complaint. Disputed claim is arising out of breach of contract, which can only be tried by civil court. Complainant denied to be a consumer and Fora having no jurisdiction to try the complaint. Advancing loan for purchase of the car to the complainant is admitted. But claimed that she failed to repay the loan as agreed. Her cheques of repayment of loan were dishonoured and they denied that complainant was involved in a false case. Repossessing the car is admitted and that it was done legally under loan agreement and without giving opportunity to the complainant to make payment by issuing legal notice dated 7.11.2003.


Vehicle was disposed of after calling quotations from the open market. It was never taken from premises of the complainant and for repossession legal process was followed. Death of husband of the complainant had no relation with repossession of the vehicle. Before selling the vehicle, notice was sent to the complainant and then sold as per value of the car in the market. Complainant still owed loan amount to the opposite party and there is no deficiency in service on their part.

4. In order to prove their respective contentions, both the parties led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

6. On behalf of the complainant, it was argued that repossession of the vehicle by financer by using force is unlawful and in support he referred us to a case Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi reported in 2007 (3) CLT, page 72 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi). He further contended that opposite party sold the vehicle without notice to the complainant at throw away price causing loss to the complainant. Therefore, opposite parties are guilty of resorting to unfair trade practice.

7. Aforesaid submissions of the ld. counsel for the complainant were contested to be wrong by the ld. counsel for the opposite parties. On behalf of the opposite parties, it was argued that this complaint is barred by limitation and is also not maintainable.

8. On question of maintainability, we were referred that the complainant had earlier on similar allegations filed a complaint, which she withdrew and was dismissed by the Fora vide order dated 20.5.2008. No permission was given to the complainant to file a fresh complaint on the similar allegations. It is in such circumstances apparent that the present complaint is second one. In case, Sucha Singh vs. R.B. Traders 1997 (1) CLT 713 (Hon’ble Haryana State Consumer Disputes Redressal Commission), it has been held that second complaint on same cause of action is not maintainable and effect of dismissal order can not be nullified by filing a fresh complaint.

9. Therefore, appears that this second complaint filed by the complainant is not maintainable.

10. This complaint is also hopelessly time barred. Because as per para 16 of the complaint, cause of action accrued to her on 20.5.2004 when opposite party refused to return back the car. Loan of the car was obtained in the year 2002. Fora is competent to entertain the complaint within two years from the date of cause of action accrued in favour of the complainant. This complaint stand instituted on 16.7.2008 i.e. after four years of arising of cause of action in favour of the complainant. Therefore, the complaint is hopelessly time barred and on this ground liable to be dismissed.

11. In view of above discussions that the complaint is not maintainable and is barred by limitation, we dismissed the same leaving the parties to bear their own costs. Copy of the order be provided to the parties free of costs. File be completed and consigned to record.

01. Shivakumar L

S/o K.Lingaiah,

Hindu Aged about 44 yrs,



02. Smt.Honnaiahleelavathi

Shivakumar W/o Shivakumar L

Hindu Aged about 40 yrs,



Both residing at No.6-6,

21st Cross, Srinivas Nagar,

Nandini Layout, Near

Ganesha Temple, Bangalore -96.

…. Complainants.

V/s



M/s Kotak Mahindra Bank Limited,

Shop No.58, & 59, 2nd Floor,

Sree Complex Bhavani, HSG

Co-Operative Society Ltd.,

‘T’ Block, Banashankari, 3rd Stage,

Bangalore – 85.

Represented by the Manager.

…. Opposite Party

-: ORDER:-





This complaint is filed seeking direction to the Opposite Party to pay Rs.1,20,000/- towards excess interest charged, Rs.1,20,940/- paid towards insurance premium and Rs.92,590/- collected towards Pre-Closure charges, in all Rs.3,33,358/-, on the following grounds:-

2. Lured by the propaganda of the Opposite Party that they are offering excellent services and the rate of interest is highly competitive when compared to other banks, the complainant sought for loan to purchase property bearing No.133, formed in Sy.No.13 to 15 of Laggere Village. The Opposite Party sanctioned loan of Rs.46,20,940/-, but disbursed only Rs.35,00,000/-. The Opposite Party also retained a sum of Rs.1,20,940/- towards insurance premium under Kotak Life Long Protector Insurance Scheme. The complainant had agreed to re-pay the loan amount of Rs.46,20,940/- with interest at 12.75 Per Annum in 180 monthly installments of Rs.50,366/- each. Though they paid the installments regularly, the Opposite Party charged and deducted interest in excess of what was agreed without notice.


Those debits which are termed as interest are not in accordance with guidelines issued by the R.B.I. and also not as per the terms and conditions settled between the parties. Since the Opposite Party failed to rectify the mistake in overcharging the interest, being frustrated with the conduct of the Opposite Party, the complainants decided to pre-close the account. They paid penalty charges for pre-closure of the loan as advised by the Opposite Party. After closing the account, the Opposite Party issued letter intimating that the entire loan is duly discharged and there are no dues whatsoever.


The Opposite Party has no right to charge pre-closure charges a 2% on the sanctioned loan amounting to Rs.92,590/- and this is against law, equity and natural justice and the said amount has to be refunded. When they requested the Opposite Party to refund the premium amount of Rs.1,20,940/-, the Opposite Party offered to pay Rs.50,977/- only. But the complainant refused to accept the same. Charging interest in excess of 12.75% Per Annum is in violation of law. They never agreed to pay interest in excess of 12.75% Per Annum. They had entered into a contract with the Opposite Party to pay interest at 12.75% Per Annum only.


If the Opposite Party had to charge interest in excess of 12.75% Per Annum, they have to call upon the complainants to close the account immediately or to accept the terms under which the complainants would have to pay interest in excess of 12.75%. Since there is no agreement to pay interest in excess of 12.75% Per Annum, the complainants cannot be charged interest in excess of 12.75%. The amount charged in excess of 12.75% Per Annum towards interest is quantified at Rs.1,40,000/- which the complainants are entitled to receive. They are also entitled to receive the insurance premium of Rs.1,20,940/- and the pre-closure charges of Rs.92,950/- from the Opposite Party. Hence, the complaint.



3. In the version, the contention of the Opposite Party is as under:-

The complainants approached the Opposite Party for grant of home loan for the purpose of purchasing a site and for construction of a residential house thereon. Loan of Rs.46,20,940/- was sanctioned for that purpose. The rate of interest applicable for the said loan was 10.25% which is linked to Retail Prime Lending Rate (RPLR) of the Bank. At the time of sanction of the loan, the RPLR was 12.75% and the applicable rate of interest was (-) 2.50% of the RPLR as applicable from time to time.


RPLR is variable as per the Money Market Conditions and overall economic situation prevailing. Out of the sanctioned loan, Rs.35,00,000/- was disbursed towards purchase of the house site. At that point of time, the complainants opted for payment of the insurance premium out of the loan amount sanctioned and accordingly the insurance premium of Rs.1,20,940/- was paid. The remaining loan amount of Rs.10,00,000/- was to be disbursed to the complainants towards construction of the residential structure based on the level of construction. But the complainants failed to put-up construction and therefore the balance amount of Rs.10,00,000/- was not disbursed.


The loan was disbursed as per the terms and conditions of the loan agreement entered into between the parties. The complainants opted for floating rate of interest which would increase or decrease as per the guidelines of the RBI as well as change in the Retail Prime Lending Rate of the Bank as referred to in the schedule to the loan agreement. The complainants were informed as and when there was such variance in the RPLR and Rate of interest. During the relevant period, the Retail Prime Lending Rate of the Bank was as followings:-

RPLR


Effective Date


Applicable ROI

12.75


Original AS per Sanction


10.25

14.75


01/04/2007


12.25

14.50


01/10/2007


12.00

15.25


01/07/2008


12.75



Therefore, the rate of interest was never charged beyond 12.75% as alleged by the complainants. It was the complainants who opted for such rate of interest and now they cannot turn around and claim that the rate of interest should be at 12.75%. Therefore, the claim of the complainants is misconceived and the complaint is frivolous. At no point of time, the Bank charged excess rate of interest and the amount received was as per the terms of contract only. The complainant is not entitled to seek refund of the entire amount of Rs.1,20,940/- paid towards insurance premium. As per the terms of the certificate of insurance issued by Kotak Mahindra Old Mutual Life Insurance Limited, in case the loan is prepaid, the premium shall be refunded in the following manner:-

55% of Premium X Balance Cover Term X O/s Principle as per Cover Schedule

Total Cover Term Original Principle as per Cover Schedule

Accorindlgy the insurance Company refunded Rs.50,998/- to the Bank, the same was offered to the complainants, but they refused to accept the same. Towards foreclosing of the loan, the Bank received Rs.37,69,843/-. As per the terms of the Contract. Clause – 2.7 r/w Item No.VIII of Schedule A to the loan agreement dated 01/03/2007, in case the complainants opt for foreclosure of the loan, pre payment charge at the rate of 2.25% as principal amount and 2.25% commitment charges on the un-disbursed sanction loan amount shall be paid by the complainants and accordingly those charges were received. The contention that the Opposite Party has no right to charge pre-closure charges at 2% on the sanctioned loan amount amounting to Rs.92,490/- is false. As per the terms of the agreement, the borrower is liable to pay pre-closure charges at the rate of 2.25% on the principal amount due and accordingly it was paid by the complainants.


The terms of the agreement provide for the same and the complainants cannot challenge those charges. It is settled position of law that the parties are bound by the terms of the contract as such the claim for refund of Rs.92,590/- is unsustainable. The insurance company namely Kotak Mahindra Old Mutual Life Insurance is not made as party to the proceedings. The complainants are not entitled for the repayment of the entire amount paid towards premium under certificate of insurance issued by the insurance company. On these grounds, the Opposite Party has prayed for dismissal of the complaint.

4. In support of the respective contentions both parties have filed affidavits. We have heard arguments on both side.



5. The points for consideration are:-

1. Whether the complainants have proved deficiency in service on the part of the Opposite Party?

2. Whether the complainants entitled to the relief prayed for in the complaint?

6. Our finding to the above points is in the NEGATIVE for the following:-

-:REASONS:-

7. The fact that the complainants had availed loan of Rs.46,20,940/- for purchase of a house site and construction of a house thereon and out of the amount sanctioned, the Bank released only Rs.35,00,000/- towards purchase of the site and paid Rs.1,20,940/- towards insurance premium is not disputed. Admittedly the complainants pre-closed the account my making payment of the amount due as on the date of the pre-closure and also the amount towards pre-closure charges. Unfortunately both the parties have not disclosed the date on which the loan was sanctioned, the date on which Rs.35,00,000/- was released and the date on which the loan was pre-closed. However, the fact remains that only after pre-closing the loan amount and after the Opposite Party issued the letter dated 06/10/2008 informing that the complainants have discharged the entire amount towards loan account, the present complaint is filed on 22/05/2009.

8. The grievance of the complainant is threefold.

(a) The first contention of the complainant is that the Opposite Party has charged interest in excess of 12.75% Per Annum though they had agreed to pay interest only at 12.75% Per Annum and the excess interest so collected in excess of 12.75% amounts to Rs.1,40,000/- and therefore they are entitled to seek refund of the said amount. Though in Para-6 of the complaint, the complainants have stated that the excess amount collected by the Opposite Party towards interest in excess of 12.75% Per Annum amounts to Rs.1,40,000/-, but they have not disclosed the details as to how they have arrived at Rs.1,40,000/- as the excess amount collected by the Opposite Party towards interest.


Except bald allegations that the Opposite Party charged interest in excess of 12.75%, the complainant have not disclosed any details as to how the Opposite Party charged interest in excess of 12.75% Per Annum. In the version, the Opposite Party has denied for having charged interest in excess of 12.75% Per Annum. In Para-10(©) of the version, the Opposite Party has disclosed the Retail Prime Lending Rate namely RPLR, according to which as on 01/07/2008, the applicable rate of interest was 12.75% and prior to 01/07/2008 the rate of interest applicable was not exceeding 12.75%. It is specifically contended by the Opposite Party that interest was never charged at any time beyond 12.75% as contended by the complainants.


The Opposite Party has produced the copy of the loan agreement executed by the complainants. From what is mentioned in schedule-A of the loan agreement, it is clear that the complainants opted for Adjustable Rate of interest as per schedule ‘C'. As per definitions in Article-1 of the loan agreement, Adjustable Rate of Interest shall mean the variable rate of interest applied to a loan on the terms and conditions as more particularly mentioned in schedule-C. When that is so, the rate of interest applicable to the loan is varying depending upon the RPLR. In the absence of material we are unable to make out that the Bank has charged interest in excess of 12.75% Per Annum. Therefore, we are unable to up-hold the contentions of the complainants that the Bank is liable to refund Rs.1,40,000/- towards excess interest charged.

(b) The second grievance of the complainants is with regard to the refund of the insurance premium of Rs.1,20,940/-.

This amount towards insurance premium was paid out of the loan amount by the Opposite Party as per the terms and conditions of the agreement, because, the complainants opted to pay the insurance premium out of the loan amount sanctioned. On payment of premium, the insurance company also issued the certificate of insurance. It is mentioned in this certificate that the insurance cover is valid from the date of loan agreement and subject to the terms and conditions of the policy of contract. The complainants have not produced the terms and conditions governing the insurance contract. However, the Opposite Party has produced the copy of the terms and conditions applicable to the contract.


Clause-8 of the terms and conditions provides that a member’s covering ceases when he ceases to satisfy the eligibility conditions and further the cover shall cease when the loan term ends, regardless of whether the loan has been fully repaid or not and should the loan be prepaid ahead of the loan repayment schedule, cover will cease on the date of such prepayment and unadjusted premium for the balance remaining term shall be refunded and the same shall be calculated as follows:-

55% of Premium X Balance Cover Term X O/s Principle as per Cover Schedule

Total Cover Term Original Principle as per Cover Schedule



The complainants are bound by the said terms and conditions governing the insurance contract. In case of pre-payment of the loan, they are entitled for the refund of the premium for the balance remaining term. Admittedly on pre-payment of the loan amount, the insurance company refunded Rs.50,998/- to the Opposite Party who in-turn offered the same to the complainants, but the complainants refused to receive the same. The insurance Company calculated the amount to be refunded towards the remaining terms of the cover on the basis of the provisions contained in Clause-8 of the terms and conditions.


That being so, in our opinion, the complainants are not entitled to more than Rs.50,998/- towards refund of the insurance premium. It is not the case of the complainants that the calculation made for refund of the insurance premium for the balance period of the term at Rs.50,998/- is not correct. Therefore, the complainants are not entitled to claim the entire amount of premium towards insurance cover. The complainants are at liberty to seek payment of Rs.50,99/- from the Bank.

(c) The 3rd grievance of the complainants is with regard to the payment of Rs.92,590/- towards pre-closure charges. It is the contention of the complainants that charging pre-closure charges is against law, equity and natural justice and therefore they are entitled to claim refund of the said amount. As against this, the contention of Opposite Party is that the pre-closure charges are claimed as per the terms and conditions of the agreement entered into between the parties.


To contend that the Opposite Party is not entitled to collect the pre-closure charges, the learned counsel for the complainant relied-upon the decision of the Hon’ble Karnatak State Consumer Disputes Redressal Commission, in the case of M.ANEES-UR-RAHMAN V. JAMMU AND KASHMIR BANK LTD., reported in III(2008) CPJ 178. A reading of the said decision makes it clear that the complainant in that case submitted that there was no agreement to pay pre-closure charges. Thereupon, the Opposite Parties were directed to produce the agreement with regard to charging of pre-closure charges, but the Opposite Parties failed to produce the agreement. It is in those circumstances, the Hon’ble State Commission held that there was no agreement to collect the pre-closure charges and therefore the Opposite Parties are liable to refund the amount collected towards pre-closure charges.


But in the case on hand, it is the contention of Opposite Party that pre-closure charges are levied as per the terms and conditions in the loan agreement executed by the complainants. From the copy of the loan agreement produced by the Opposite Party, it is seen that in Clause-2.7, the complainants had agreed to pay pre-payment charges as mentioned in schedule-“A”. Item No.(5) of schedule ‘A’ of the loan agreement makes it clear that the complainants had agreed to pay pre-payment charges at 2% on the outstanding loan amount. Therefore, when the complainants proposed to pre-close the loan amount, the Opposite Party charged pre payment charges or pre-closure charges as per the terms and conditions of the loan amount.


As such the complainant cannot derive any support from the above decision to contend that the Opposite Party is not entitled to collect pre-closure charges from them. Since the Opposite Party charged pre-payment or pre-closure charges as per the terms and conditions of the agreement, the complainants are not entitled to claim refund of the amount paid towards pre-closure charges. Thus, we are unable to make out any deficiency in service on the part of Opposite Party and therefore held that the complainants are not entitled to the relief prayed for in the complaint. In the result, we pass the following-

-:ORDER:-



1. The complaint is DISMISSED. No order as to costs.

2. Send a copy of this order to both parties free of costs, immediately.

3. Pronounced in the Open Forum on this the 05th Day of OCTOBER 2009.

Anjana Goyal wife of late Sh. Krishan Goyal, resident of 5 Subash Nagar Motia Khan Mandi, Gobindgarh, Distt. Fatehgarh Sahib.

(Complainant)

Vs.



1. The Chairman, Kotak Mahindera Primus Ltd. 36-38A Nariman Bhavan, 227 Nariman Point Mumbai, 400- 021.



2. Executive (Collections) Sh. Sharanjit Singh Sabharwal, Kotak Mahindera Primus Limited, 1st Floor, SCO No.123, Firoz Gandhi Marg, Ferozepur Road, Ludhiana-141001.

(Opposite parties)


O R D E R

T.N. VAIDYA, PRESIDENT:

1. In this complaint under section 12 of the Consumer Protection Act, 1986, prayer of the complainant is to direct the opposite parties to pay her compensation of Rs.5,00,000/- with interest and set aside the demand of Rs. 2,69 582/- raised by the opposite parties against her.

2. As per averments of the complaint, complainant took loan of Rs. 2,70,000/- on 23.9.2002 from the opposite party for purchase of a car (registration no. PB-10F (T) 7793). With the loan amount and her own contribution of Rs. 1,50,000/- purchased Hyundai car. Loan instalments were regularly paid till October,2003. Then the complainant was involved in a false case, due to which was confined to jail from 29.9.2003 to 4.12.2003. Hence, could not deposit the loan instalments in time. Taking advantage of her absence, opposite party forcibly took possession of the car, documents of which including RC, Insurance were already in possession of the opposite party.

Due to her confinement in jail, her husband suffered heart attack on 28.10.2003 and ultimately expired on 23.1.2004. After issuance of legal notice, opposite party through Sh. Brijesh Puri and Saranjeet Singh promised to return the car. But instead, they sold the same at lower rate than prevailing market price without any notice of sale to the complainant. Thereby, they caused loss of Rs. 1,58,850/- to her by selling the car at lower price. Subsequently, opposite party raised demand of Rs.2,69,582/- against this loan, which is illegal and opposite parties are guilty of resorting to unfair trade practice by making such demand.

3. Opposite parties in reply pleaded that this compliant is not maintainable. As complainant had earlier filed a complaint on these very allegations and at the time of final arguments she withdrew that complaint. Written arguments in that complaint were filed by the opposite party and arguments were heard by the Fora, thereafter dismissed the same as withdrawn on technical grounds. That order is final and such order can not be altered by filing a fresh complaint. Disputed claim is arising out of breach of contract, which can only be tried by civil court. Complainant denied to be a consumer and Fora having no jurisdiction to try the complaint. Advancing loan for purchase of the car to the complainant is admitted. But claimed that she failed to repay the loan as agreed.

Her cheques of repayment of loan were dishonoured and they denied that complainant was involved in a false case. Repossessing the car is admitted and that it was done legally under loan agreement and without giving opportunity to the complainant to make payment by issuing legal notice dated 7.11.2003. Vehicle was disposed of after calling quotations from the open market. It was never taken from premises of the complainant and for repossession legal process was followed. Death of husband of the complainant had no relation with repossession of the vehicle. Before selling the vehicle, notice was sent to the complainant and then sold as per value of the car in the market. Complainant still owed loan amount to the opposite party and there is no deficiency in service on their part.

4. In order to prove their respective contentions, both the parties led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

6. On behalf of the complainant, it was argued that repossession of the vehicle by financer by using force is unlawful and in support he referred us to a case Citicorp Maruti Finance Ltd. Vs. S. Vijayalaxmi reported in 2007 (3) CLT, page 72 (Hon’ble National Consumer Disputes Redressal Commission, New Delhi). He further contended that opposite party sold the vehicle without notice to the complainant at throw away price causing loss to the complainant. Therefore, opposite parties are guilty of resorting to unfair trade practice.

7. Aforesaid submissions of the ld. counsel for the complainant were contested to be wrong by the ld. counsel for the opposite parties. On behalf of the opposite parties, it was argued that this complaint is barred by limitation and is also not maintainable.

8. On question of maintainability, we were referred that the complainant had earlier on similar allegations filed a complaint, which she withdrew and was dismissed by the Fora vide order dated 20.5.2008. No permission was given to the complainant to file a fresh complaint on the similar allegations. It is in such circumstances apparent that the present complaint is second one. In case, Sucha Singh vs. R.B. Traders 1997 (1) CLT 713 (Hon’ble Haryana State Consumer Disputes Redressal Commission), it has been held that second complaint on same cause of action is not maintainable and effect of dismissal order can not be nullified by filing a fresh complaint.

9. Therefore, appears that this second complaint filed by the complainant is not maintainable.

10. This complaint is also hopelessly time barred. Because as per para 16 of the complaint, cause of action accrued to her on 20.5.2004 when opposite party refused to return back the car. Loan of the car was obtained in the year 2002. Fora is competent to entertain the complaint within two years from the date of cause of action accrued in favour of the complainant. This complaint stand instituted on 16.7.2008 i.e. after four years of arising of cause of action in favour of the complainant. Therefore, the complaint is hopelessly time barred and on this ground liable to be dismissed.

11. In view of above discussions that the complaint is not maintainable and is barred by limitation, we dismissed the same leaving the parties to bear their own costs.

T. Raghunathan

S/o. R.Thamburaj,

Old.No.93, New No. 87

Ramalingam Colony,

Coimbatore – 641 043. --- Complainant

Vs.

The Manager,

Kotak Mahindra Bank Ltd.,

104-33, Gowtham Centre Annex,

III Floor, Avanashi Road,

Coimbatore – 18. --- Opposite Party



This case coming on for final hearing before us on 25.9.09, 8.10.09 and 14.10.09 in the presence of M/s. S,Radharamanan, Mr.L.Rajendran and Mr.D. Raja , Advocates for complainant and of M/s.Krishna Associates, Advocates for opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to return the original RC Book of the complainant, not to take possession and not to affect sale or transfer the vehicle, withdraw the unlawful claim made in the demand notices, to pay Rs.1 lakh as compensation for mental agony, deficiency in service and unfair trade practice, and to pay Rs.5,000/- towards cost of the proceedings.

The averments in the complaint are as follows:

1. The complainant availed a loan of Rs.5,40,000/- from the opposite party and purchased the vehicle, i.e. WARAJ MAZDA T3500 light vehicle fitted with 86.5 Ps/2500 RPM Diesel Engine with 5/7 Nos 750 x 16 – PR Nylon Tyres and Tubes along with standard accessories, by paying an advance of Rs.1,81,000/- apart from Road Tax and other amounts. As such on 30.7.2007 the bank had advanced an amount of Rs.5,44,000/- as loan as per the loan agreement No. CV -1511558 dated 30.7.2007 and the vehicle bearing Regn.No. TN 38 AP 9725 was delivered on 31.7.2007. The copy of the invoice is herewith produced as D.No.1. The monthly EMI of Rs.15,939/- has to be remitted for 46 months. The complainant is very prompt and correct in repayment of EMI’s without any default whatsoever.

2. But due to non-availability of travel orders the complainant in June and July 2008 is humanly unable to pay two dues to the tune of Rs.41,751/-. Suddenly the recovery Manager Mr.Raja Rajan along with 2 other persons on 6.8.2008 at about 5.30a.m came to the complainant’s house and demanded him to handover the vehicle and the R.C.Book of the vehicle stating that it was required for the inspection carried out at the Bank. On believing their words, the complainant handed over the vehicle key and R.C. Book on the full belief, such a reputed Bank will not cheat its customer. At that time, they also took the complainant’s signatures in very many printed forms. Since he did not know English he could not know the contents. The opposite party unlawfully demanded very many false amounts, which is not binding upon him. The complainant, without the original R.C.Book, could not ply the vehicle and could not get any income at all and unable to pay the Road Tax etc.

3. Therefore the complainant had preferred and presented a complaint dated 27.9.08 to the Commissioner of Police, Coimbatore against the opposite party and the same was forwarded to The B4 Police Station but police have not taken any action. Since even after several demands of the complainant and after making payment on their demand on the promise of returning the R.C.Book the opposite party deliberately failed to return the same. Therefore the complainant had sent complaint dated 16.10.08 to The banking Ombudsman, Reserve Bank of India, Chennai and also sent copies of the same to the opposite party and its Head Office at Mumbai and The Ministry of Finance and Department of Banking affairs New Delhi. But he could not get his grievance redressed.

4. On 12.11.08 Mr.Raja Rajan recovery Manager of the opposite party and one Ravikumar of collection section of the Bank, have visited the complainant’s house at about 8.30 p.m. Mr.Raja Rajan proclaimed that and threatened that full amount of loan is not paid with one or two days they will sell away the vehicle and with the help of Police they will recover the vehcicle and they will also take legal action for recovery of the amount and criminal action for cheating against the complainant. If at all any legal due is there, they ought to have recovered the same through legal course and not in unlawful way by taking law into their own hands. Therefore the complainant is constraint to file this complaint and also petition for ad-interim injunction restraining them from taking possession of the vehicle unless under due process of law. Hence this complaint.

The averments in the counter of opposite party is as follows:

5. The complainant in order to create sympathy before this Honourable forum has given the family details. It is true that complainant herein has availed loan of Rs.5,44,000/- for the purchase of SWARAJ MADZA T3500 Light Vehicle fitted with 86.5 PS/2500 RPM Diesel engine. The complainant entered with loan agreement CV-1511558 dated 30.7.2007 and agreed to pay EMI sum of Rs.15,939/- in 46 equated monthly installments without any delay or default. It is true that our bank staff met the complainant in his house and demanded the EMI amount which was pending but complainant could not clear the dues and he himself handed over the vehicle and RC further he told that he would take back the same after clearing the dues.

6. The opposite party agreed to release the vehicle subject to clear the installment dues as on date. He also agreed for the same. The inspector of police B4 Police Station, Coimbatore closed the case as purely civil in nature. If any dispute arises between the complainant and opposite party, the same should be solved by appointing an arbitrator as per the agreement terms and conditions. The complainant herein has suppressed this fact and approached this forum with the unclean hands by ulterior motive to obtain compensation. The complaint has no merits and ought to be dismissed.

3. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A 27 marked on the side of the complainant.

The point for consideration is

Whether the opposite parties have committed deficiency in service? If so to what relief the complainant is entitled to?



ISSUE 1

4. This Complaint is filed by the complainant praying this forum directing the opposite parties to issue due statement of accounts for the said loan from the date of agreement i.e. from 30.7.2007 till date return the RC book of the complainant for the vehicle bearing registration number TN 38 AP 9725 and to pass other orders.

5. As per memo dated15/9/2009 the Honourable High court has passed an order on 6/7/2009 giving certain direction to the complainant who is the respondent in O.A.No. 576/2009 and application number 2355/2009 . As per the direction of the Honourable High court, the complainant was directed to pay a sum of Rs.4 lakhs to the opposite party who is the respondent in O.A.NO. 576 of 2009. But as per the opposite party the complainant has not complied the direction,. More over the complainant’s counsel reported no instructions before this Forum. For the last four hearings the complainant was seeking adjournments. Even after giving sufficient adjournments the complainant was not ready for arguments. More over the complainant has suppressed so many facts. Between the same parties, for the same vehicles the above said case is pending before High Court, Madras. Hence the complainant is not entitled to get any relief from this Forum.

C.C.NO. 29 OF 2007
Between:

B.S.N.Joshi & Sons Ltd.,

Joshi Chambers, P.B.No.2045,

G.K Towers, 3rd Floor,

Dwarakanagar,

Visakhapatnam.

Rep.by Mr.K.A.Swamy,

Branch Manager.

Complainant

AND

1. M/s Kotak Mahendra Bank Ltd.,

Rep.by Branch Manager,

38-8-17, M.G.Road, Opp.AIR,

Vijayawada-520 010.



2. M/s Kotak Mahendra Bank Ltd.,

Regd.Office 36-38A, Chairman Bhavan,

227, Nariman Point,

Mumbai-400 021.
Opposite parties
Counsel for the Complainant : Mr.D.Venkata Reddy

Counsel for the Opp.parties : Mr.Sivananda Kumar

CORAM: THE HON’BLE MR.JUSTICE D. APPA RAO, PRESIDENT

SRI SYED ABDULLAH, HON’BLE MEMBER,

AND

SRI R.LAXMINARASIMHA RAO, HON’BLE MEMBER

WEDNESDAY, THE THIRTIETH DAY OF DECEMBER,

TWO THOUSAND NINE.

Oral Order: (Per Sri R.Laxminarasimha Rao, Hon’ble Member)

The complaint is filed u/Sec 17 (a)(i) of the C.P Act against M/s Kotak Mahendra Bank Ltd., praying for a direction for payment of Rs.26,18,604/- towards the cost of four vehicles along with interest at the rate of 12% p.a , Rs.2,500/- per vehicle per day from 20th September, 2006 towards damages and Rs.5,00,000/- towards compensation for loss of reputation and costs.

The averments of the complaint are that the complainant is a Company registered under the Companies Act and carrying on its business on imports, exports, transportation etc., In the course of their business the complainant entered into a loan agreement with the opposite party Bank for purchase of four vehicles under hire purchase scheme as mentioned in para 3 of the complaint. The loan amount was repayable in 47 installments of Rs.1,20,000/- commencing from 10.12.2004 to 10.10.2008. The complainant executed the loan agreement along with blank dated cheques and submitted to the opposite party bank who presented the cheques for collection through HDFC Bank by presenting the first cheque No.147252 dt. 10.12.2004 which was encashed on 11.12.2004. The opposite party bank presented the cheques till the cheque bearing No.147267 dt.25.1.2006 which was honoured on 22.3.2006.

The cheque bearing No.147268 dt.25.2.2006 intended for collection was presented which was also honoured on 13.3.2006. The opposite party bank has not presented the cheque as per the schedule during the period from 10th August, 2006 till 10th September, 2006. The opposite party bank committed irregularity in presenting the cheque and the same was noticed by the complainant as the cheque dates were different. The cheques schedule issued by the bank shows that the cheque bearing No.147263 was presented in the month of November, 2005 and it was honoured on 21.10.2005. The cheque No.147264 was honoured on 29.11.2005. The transactions were made by the opposite party bank without intimation and even without adopting the procedure.

On 20.9.2006 the opposite party bank seized the vehicles along with the registration documents and transportation material, as a result of which the complainant suffered an amount of Rs.2500/- per day per vehicle from 20.9.2006 and the same was intimated to the opposite party bank on 16.10.2006 in reply to the lawyer notice issued on 10.8.2006. The complainant requested the opposite party bank for its willingness to continue the loan scheme provided the vehicles are released and all incidental penalties are recalled. The complainant approached the R.B.I which forwarded the complaint to the Banking Ombudsman who inturn closed the matter on the premises that the complaint could not be taken up for consideration in view of Clause 1 (A) 2 (V) of the BO Scheme, 2006.

The opposite party sold the vehicles and got clearance from the R.T.A without intimating about the sale proceeds of the vehicles to the complainant. The complainant got issued a notice to the opposite parties under Sec.10 of Hire Purchase Act, 1972 to terminate the agreement in terms of Secs. 13 to 15 of the said Act and refund the amount along with damages at the rate of Rs.10 lakhs. The opposite party Bank had issued letter dt.19.1.2007 whereby it was informed that the agreement was terminated and also the Bank had claimed refund in terms of Sec.18 of the Hire Purchase Act, an amount of Rs.30,18,560/- for four vehicles along with interest at the rate of 12% p.a. The complainant requested the opposite party Bank to hold Arbitration within Visakhapatnam jurisdiction, in reply to which the Opposite Party Bank issued a letter dt.3.2.2007 that in case Arbitration is to be held, the matter has to be dealt with in Mumbai and the expenses to be incurred has to be borne by the complainant.

The amount of compensation capable of being prayed for in an appeal before the Debt Recovery Tribunal as per the arbitration clause was barred and as such the complainant has filed the present complaint. The opposite party Bank has not served a clear and specific notice of sale before exercising the right of sale as per Sec.176 of the Indian Contract Act which amounts to deficiency in service. The opposite party Bank has misused the cheques without following any seriatim by putting dates on cheques and tried to encash intermittently of its choice. Hence, prayed to allow the complaint.

The opposite party has filed counter contending that the complainant has utilized the finance provided by them for Commercial Purpose. The transactions which formed the basis of the complaint are commercial in nature and as such they are not covered by the provisions of the C.P Act. The hire purchase Act 1972 mentioned by the complainant is a still born child as it has not come into effect by an effective notification. The loan agreement entered into by the complainant defines the word “due date” means the date on which the installment of the principal amount of the loan and/or interest and/or any amount payable under the agreement and the word “margin money indebtedness of business, borrower, assets, credit information etc.,” are also defined in the loan agreement. The complainant has attempted to give a different meaning to these words to that what was mentioned in the agreement.

The vehicle is a principal security for realization of the amounts due and payable and since the indebtedness of the borrower means any indebtedness of the borrower or the co-borrower or guarantor

to the Bank at any time far and in respect of monies borrowed, contacted or raised towards the Bank. The vehicle is deemed to include all accessories, additions are replacements whenever made including by way of body building engine upgrades and the line. The hypothecation is registered as required under the Motor Vehicle Act creating an interest in the opposite parties and hypothecated vehicle for recovery of the dues from the hirer as defined by the Motor Vehicle Act by following due process. Ample opportunity was given to the complainant and then only vehicles were sold for due realization of the debt.

Three different notices were given calling the complainant to discharge the debt. The letters dated 22.9.2006, 5.10.2006 and 7.10.2006 inspite of being received by the complainant calling upon him to pay the dues and with a caution that on his failure to do so the vehicles would be sold to the better quote and sale proceeds would be adjusted into the account of the complainant. The complainant has not paid the total dues as mentioned in the letters. Therefore the opposite party was left with no option other than terminating the loan agreement and selling the vehicles to the highest quote. The cheques issued by the complainant were bounced for want of funds in the account of the complainant. There was exchange of various notices by the Officers’ of the opposite party bank with the complainant. An alternative remedy was provided by way of a procedure to approach Debts Recovery Tribunal. .

The opposite party Bank had agreed to the offer of the complainant to approach arbitration procedure. The complainant failed to take any steps for appointment of an Arbitrator and to circumvent the clause, the complainant has filed the complaint before this Commission. There was no deficiency in service on the part of the opposite party Bank.

In support of the case the Branch Manager of the Complainant Company has filed his affidavit and marked Exs.A-1 to A-27 were marked, On behalf of the opposite party Bank its Manager (Legal) has filed his affidavit and marked Exs.B-1 to B-20 are marked.

The points for consideration are:

1) Whether the complainant is a consumer within the meaning of Sec.2 (1)(d) of the C.P Act ?

2) Whether the opposite party has committed deficient service in effecting seizure and sale of the four vehicles?

3) To what relief?

POINT NO.1:

The nature of the transaction as stated in the third para of the complaint is in relation to the purchase of four vehicles by the complainant for use of the same in its business of imports, exports, transportation. The opposite parties have raised objection as to the styling of the complainant Company itself as the complainant within the meaning of the provisions of the C.P Act on the ground that the finance provided by them to the complainant Company was for commercial purpose.

Sec.2(1)(d) of the C.P Act provides for filing of complaint by the person who does not purchase goods for the purpose of re-sale and also those who avail service not for any commercial purpose. Admittedly the vehicles in question were purchased by the complainant company for the purpose of enabling itself to promote its business activity. Thus, Sec. 2(1)(d) of the C.P Act reads as follows:

(d) "consumer" means any person who—



(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom*ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;



Even otherwise the contention of the complainant is that the opposite parties have misused the cheques dt.10.10.2005, 11.2.2006, 10.11.2005, 21.10.2005, 29.11.2005 by getting them presented for collection earlier to the dates mentioned therein. A perusal of the record does not show submission of bank statement of the complainant Company that the cheques were presented for collection earlier to their respective dates.

The other contention of the complainant is that the opposite party has repossessed the vehicles without issuing any notice to it and sold the vehicles without issuing any pre-sale notice to the complainant. This contention of the complainant is belied by the letter dt.5.1.2007 marked as Ex.A-5 wherein it is categorically mentioned that as per the terms and

conditions of the agreement entered into between the complainant and the opposite parties, the opposite parties could repossess the vehicles on account of any default in payment of the installments by the complainant Company. Ex.A-5 shows that the complainant had committed default and after due intimation the opposite parties repossessed the vehicles and also even after the opposite parties repossessed the vehicles, they had issued letters dt.22.9.2006, 5.10.2006 and 7.10.2006 requesting the complainant to pay the dues and settle the account. Subsequently to the issuing of the letters as mentioned in Ex.A-5 the opposite parties sold the vehicles and adjusted the sale proceeds to the account of the complainant Company. The complainant approached the Reserved Bank of India which forwarded the complaint of the complainant to Banking Ombudsman who through letter dt.21.12.2006 had closed the case in view of clause 8(1)(a) to (u) of the BO scheme 2006 regarding hypothecation/clearing of cheques .

The learned counsel for the complainant has submitted that prior to approaching the Reserve Bank of India, the complainant Company requested the opposite parties to hold arbitration within Visakhapatnam jurisdiction. The opposite parties had, by letter dt.3.2.2007 marked as Ex.A-2, expressed their readiness in initiating arbitration proceedings which were to be held at Mumbai as per the terms and conditions of the agreement in terms of which the costs and consequences were to be borne by the complainant Company. Thereafter, the complainant Company instead of proceeding with initiation of arbitration proceedings, has approached the Reserve Bank of India, Banking Ombudsman and ultimately this Commission which is not permissible in view of the Arbitration clause and its invocation by the complainant Company. The complainant has not established any deficiency in service on the part of the opposite parties. In the circumstances, after taking into consideration of all the facts embodied in A-1 and A-18 and Exs.B-1 to B-20, we are of the considered opinion that there are no merits in the complaint. The complaint is liable to be dismissed.

In the result, the complaint is dismissed with costs of Rs.5,000/-.
Sd/-

PRESIDENT

Sd/-
MEMBER

Sd/-
MEMBER
DT.30.12.2009
SS*

APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR

Complainant: Opposite party



Affidavit evidence of complainant Affidavit evidence of Manager

Filed. (Legal) of OP filed.
Exhibits marked for complainant


Ex.A-1 Authorization letter dt.24.3.2007 issued by complainant.

Ex.A-2 Letter dt.3.2.2007 addressed by the opposite party Bank to
the complainant.

Ex.A-3 Letter dt.19.1.2007 addressed by the complainant to the
opposite parties.

Ex.A-4 Letter dt.21.12.2006 addressed by the office of the Banking
Ombudsman to the complainant.

Ex.A-5 Letter addressed dt.5.1.2007 by the opposite party bank to
the complainant.

Ex.A-6 Letter addressed by the complainant to the opposite
parties dt.8.12.2006.

Ex.A-7 Letter dt.13.11.2006 addressed by the RBI to the
Secretary, Banking Ombudsman marking copy to the complainant.

Ex.A-8 Copy of cheque and bank memo .

Ex.A-9 Reply notice dt.16.10.2006 issued by the complainant to
the opposite party counsel .

Ex.A10 Copy of cheque and bank memo.

Ex.A11 Letter addressed by the complainant to the opposite party
dt.26.9.2006.

Ex.A12 Letter dt.22.9.2006 addressed by the opposite party to the
complainant.

Ex.A13 Letter dt.31.8.2006 addressed by the complainant to Sri
L.Vetri Chelvan, Advocate.

Ex.A14 Reply dt.10.8.2006 from L.Vetri Chelvan advocate to the
complainant.

Ex.A15 Letter addressed by the complainant dt.6.6.2009 to the
opposite party bank.

Ex.A16 Bank statement.

Ex.A-17 Letter addressed by the opposite party bank to the
complainant dt.3.12.2004.

Ex.A-18 List of post dated cheques dt.3.12.2004.

Exhibits marked for opposite parties:



Ex.B-1 Loan agreement.

Ex.B-2 Speed post receipts.

Ex.B3 to B5 Letters dt.5.10.2006 addressed by the opposite party
to the complainant.

Ex.B6 to B9 Foreclosure Accounts relating to the complainant
dt.9.10.2006.

Ex.B10 to B13 Valuation reports dt.23.10.2006.

Ex.B-14 Legal notice issued by L.Vetri Chelvan, Advocate for
the opposite parties to the complainant dt.10.8.2006.

Ex.B-15 Reply notice issued by the complainants to Sri L.Vetri
Chelvan Advocate dt.16.10.2006.

Ex.B-16 Letter dt.8.12.2006 addressed by the complainant to
the opposite parties.

Ex.B-17 Letter dt.26.12.2006 addressed by the complainant to the opposite party bank.

Ex.B18 Letter dt.18.1.2007 addressed by the opposite party
to the complainant.

Ex.B19 Letter dt.19.1.2007 addressed by the complainant to
the opposite parties.

Ex.B20 Letter dt.3.2.2007 addressed by the opposite party
bank to the complainant.

i take a loan for truck in dated 13th sept.2006. my agreement no is c.v.1316124. dated 14th SEPTEMBER 2006. AFTER I PAID TOTAL LOAN BUT I HAVE NO RECEIVED NO DUES CERTI. TILL DAY.please i requested you for same .