H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

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FIRST APPEAL NO.583/2007.

ORDERS RESERVED ON 4.3.2009.

DATE OF DECISION: 10-03-2009.

In the matter of:



Cholamandalam Investment and Finance Company Ltd.,

“TIAM HOUSE”, Old No.28, New No.72, Rajaji Salai Chennai – 600 001.

… … Appellant.



Versus



1. Sh. Karnail Singh son of Sh. Hari Ram, Resident of Vill. Dole, P.O. Bhator, Tehsil Jawali, District Kangra, H.P.

2. M/S Desire Credits, Dharamshala Road, Birta, Kangra, through its Proprietor Mr. Deepak Mittal.

(Respondent No.2 was ordered to be deleted vide order dated 10.11.2008)

… … Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.



Whether approved for reporting? Yes



For the Appellant: Mr. Arvind Sharma, Advocate.

For the Respondent. Mr. Ashok Chaudhary, Advocate.,

for respondent No.1.



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O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral),





1. Appellant is aggrieved from the order dated 27.10.2007 passed by the District Forum, Kangra at Dharamshala, Camp at Nurpur, in Consumer complaint No.436/2004 dated 27.10.2007. By means of impugned order, appellant as well as respondent No.2 have been jointly and severally directed to hand over the possession of the truck to respondent No.1 in the same condition as it was taken from respondent No.1/complainant, besides paying him Rs.75,000/- as compensation for causing him mental pain, agony, inconvenience and loss of his earning within 30 days of the receipt of the copy of the said order. In case both of them failed to do the needful, then they have been directed to further pay a sum of Rs.1,00,000/- to respondent No.1 and also not to recover any amount towards outstanding loan. In addition to this, litigation cost has been allowed in the sum of Rs.1,000/-.



2. Vehicle bearing registration No.HR-38-H-6567 having been got financed by respondent No.1 from the appellant was the basis of filing complaint No.436/2004 by the former.. The amount for which this vehicle was financed was repayable in instalments starting from April, 2003 and ending in February, 2005. It was repossessed by the appellant from the driver of respondent No.1 as per case set out by him. This seizure was illegal. Vehicle was seized when it was on way to Calcutta for delivering the goods. Further case of respondent No.1 as set out in the complaint was that immediately after illegal seizure, he approached the appellant for release of the vehicle as he was ready and willing to pay the loan amount, however, it refused to do the needful. In this background, complaint was resisted on a number of pleas by the appellant. District Form below after considering respective submissions allowed the complaint in the aforesaid terms, hence this appeal.



3. Shri Sharma, learned Counsel for the appellant by referring to the complaint and the stand taken by his client in the reply, urged that the District Forum below had no jurisdiction to have entertained the complaint muchless having adjudicated upon the same. As according to him, no part of cause of action within the scope of Section 11 of the Consumer Protection Act, 1986, arose in favour of respondent No.1 against the appellant within the jurisdiction of District Forum, Kangra, therefore, on this ground alone this appeal deserves to be allowed. He also raised number of other pleas in support of the appeal.



4. Plea of jurisdiction was seriously resisted and contested by Shri Chaudhary, learned Counsel for respondent No.1. Per him, the vehicle was financed by the appellant within the territorial jurisdiction of District Kangra through respondent No.2. As such according to him, District Forum below had the jurisdiction to entertain and adjudicate upon the complaint and submission to the contrary urged on behalf of the appellant was not tenable. Thus, he prayed for dismissal of the appeal.



5. We are aware of the situation that the Consumer Protection Act, 1986, is a beneficial and social piece of legislation aimed at providing speedy, quick, as well as inexpensive justice to a consumer, like respondent No.1. Above all, within the framework of law after following the principles of natural justice, equity and fair play, scales need to be tilted in favour of a consumer. However, while doing so, we have also to be cautious that we do not become over-zealous in the matter of adjudication of dispute between a consumer and the service provider like appellant.



6. Keeping in view these broad principles of law, we shall now look into the complaint. In this behalf when a reference is made to the complaint which is at page 29 of the complaint file, there is no assertion either expressly or by necessary implication or even remotely to suggest as to how the complaint could be maintained by respondent No.1 against the appellant before District Forum, Kangra. In this behalf Section 11 of the Consumer Protection Act, 1986, which has material bearing on this case needs to be noted.



“11(1) xxx xxx xxx xxx



( 2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction –



(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises”.



There is no pleading and/or suggestion that the case is covered by any of these clauses. Even if one is to take a very liberal and favourable view in favour of the respondent No.1, still we are not able to persuade ourselves to accept the submission of Shri Chaudhary, that respondent No.2 was actually and voluntarily residing within the jurisdiction of District Forum below, therefore, the impugned order has been rightly passed because it had jurisdiction to have adjudicated upon the same. We would have certainly upheld this plea of Shri Chaudhary but nothing has been said in the complaint as to how said respondent is concerned with the transaction out of which the complaint had arisen. Shri Chaudhary was specifically called upon to refer to any averment made in the complaint regarding respondent No.2 and/or its having been in any manner connected/concerned with the financing of the vehicle by the appellant in favour of respondent No.1.



7. At the risk of repetition it may be appropriate to observe that on the basis of the facts detailed in the complaint, no case is made out which may justify the complaint being maintained by respondent No.1 against appellant and/or respondent No.2 before the District Forum below. In addition to this it is also not the case of respondent No.1 that the vehicle was registered within the jurisdiction of District Forum at Kangra, and/or it was being plied in the State of Himachal Pradesh including Kangra District. Similarly there is no averment in the complaint that documents whereunder finance was provided by the appellant were executed within the territorial jurisdiction of District Forum, Kangra. Complaint also does not contain any averment that the appellant has one of its branch offices within the jurisdiction of District Forum, Kangra at Dharamshala. Qua respondent No.2 in this appeal, we have already taken note of in the preceding paras of this order.



8. We have not gone into other contentions urged on behalf of the appellant since appeal is being disposed of on account of lack of jurisdiction by the District Forum, Kangra at Dharamshala, to have entertained the complaint No.436/2004.



In view of the aforesaid discussion, while allowing this appeal, order passed by the District Forum in Complaint No.436/2004 on 27.10.2007 is hereby quashed and set aside and as a result of it, said complaint stands dismissed. It is however clarified that the dismissal of this complaint will not come in the way of respondent No.1 to have such recourse for redressal of his grievance if any available to him before any other Forum/Court in accordance with law, and in such a situation he will be entitled to claim benefit of Section 14 of the Limitation Act, 1963, as he was bonafide prosecuting the matter before the District Forum, Kangra under legal advice.

All interim orders passed in this appeal from time to time shall stand vacated forthwith.



Office is directed to send copy of this order to the learned Counsel for the parties present free of cost as per Rules and in the like manner same be sent to respondent No.2.



Shimla,

March 10, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

/BS/ Member.

COMPLAINANT Mr. G. Ramesh Babu, Residing at No. 14, 1st Floor, 15th Cross, Pipeline Road, Cholarapalya, Bangalore – 560 023. Advocate (B.K. Manjunath)

V/s.

OPPOSITE PARTIES

1. M/s. Cholamandalam Finance, Having office at No. 1003/25, 59th Cross, 4th ‘M’ Block, Rajajinagar, Bangalore – 560 010. Represented by its Branch Manager, Mr. Prasanna Kumar.

2. M/s. Cholamandalam Finance, 28/1, Kensington Road, M.G. Road, Opposite Gurudwar, Near Ulsoor Lake, Bangalore – 560 042. Represented by its Branch Manager.

3. Cholamandalam Finance, Saroj Tower, 2nd Floor, 27th Cross, Jayanagar, 3rd Block, Above Pizza Hut & Citi Financial, Bangalore – 560 007. Represented by its Branch Manager. Advocate (Ajay Kohli)


O R D E R


This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pre-close the loan account and pay a compensation of Rs.30,000/- and for such other reliefs on an allegations of deficiency in service.

The brief averments, as could be seen from the contents of the complaint, are as under: Complainant approached the OP for a personal loan in the month of October 2006. OP agreed to release loan of Rs.22,000/- with interest at the rate of 30% p.a. Complainant was required to repay the same in an EMI of Rs.1,164/-.


Complainant is regular in making payment of the EMI up to 23 months, then he thought of pre-closure of the said loan. According to the complainant outstanding due was only Rs.9,780/-, but OP informed him in September 2008 that there is a due of Rs.14,661/- which is not correct. On enquiry complainant came to know that OP imposed an interest @ 48% p.a. as against the 30% agreed. Hence complainant felt the deficiency in service on the part of the OP. Then he caused the legal notice, there was no response. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.

2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is bound by the terms and conditions of loan agreement. This Forum has no jurisdiction to entertain the dispute, wherein charging of rate of interest is challenged. Though complainant sought for personal loan of Rs.22,000/- after necessary deduction OP disbursed Rs.20,765/- on 15.11.2006. The loan agreement clearly indicates the rate of interest that is going to be charged is 30.15% p.a. (flat) which shall be 48% p.a. on diminishing balance. Complainant is required to repay the said loan in an 36 EMI at the rate of Rs.1,164/-, but complainant defaulted. Hence OP is entitled to collect the cheque bouncing charges and other incidental charges. That act of the OP does not amounts to deficiency in service. The entire complaint is devoid of merits.

There is no deficiency in service muchless unfair trade practice as alleged by the complainant. Among these grounds, OP prayed for the dismissal of the complaint.



3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.



4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:
Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP?
Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?


5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Negative
Point No.2:- Negative
Point No.3:- As per final Order.


R E A S O N S


6. At the outset it is not at dispute that the complainant availed a personal loan of Rs.22,000/- from OP. OP after deducting the necessary charges released Rs.20,765/- on 15.11.2006. A loan agreement came to be executed. Complainant is expected to repay the said loan amount in an 36 EMI at the rate of Rs.1,164/-.

Now the grievance of the complainant is that OP agreed to release the said loan with interest at the rate of 30% p.a. But it is specifically contended by the OP that as per the loan agreement the interest on the said loan ranges from 30.15% p.a. (flat) which shall be 48% p.a. on diminishing balance. When complainant is a party to the said loan agreement he is bound by the terms and conditions imposed therein and to speak against the said terms and conditions is not fair. Complainant is estopped from raising such untenable defence.


7. According to the complainant after making substantial EMI payment he thought of foreclosure of the said loan. As admitted by the complainant himself he has hardly paid 23 EMI as against 36. According to the complainant he was in due of only Rs.9,780/- by the end of September 2008. What is the basis for this conclusion is not known. On the other hand according to the complainant OP claimed Rs.14,661/- as dues. We have gone through the version filed by the OP it is specifically contended that the outstanding due by the end of September 2008 is Rs.12,293/- and not Rs.14,661/- as contended by the complainant.


A connecting statement of accounts and documents are produced. So complainant himself is not very much sure what is the actual dues as on September 2008. The halfhearted evidence of the complainant will not come to his assistance and aid to seek the relief now as claimed.



8. The discretion lies with the OP to accept or not to accept the pre-closure of the account. If the complainant is not willing and ready to pay the outstanding dues and if he contends that he is indue lesser amount than that of the statement shown by the OP, then complainant cannot insist OP to for-close his account to his convenience. The approach of the complainant rather does not appears to be fair and honest.


9. On the receipt of the notice from the complainant OP has responded positively. OP being NBFC is governed by R.B.I rules and regulations while dealing with a financial matter. We have perused the loan agreement conditions incorporated therein, the allegations made by the complainant appears to be baseless. We find substance in the defence of the OP that this Forum cannot decide whether the rate of interest charged by it is excessive or not because it is beyond the scope of the C.P. Act.



10. On the plain reading of the complaint, the allegations made therein, it did not spell out a case of hiring of service and suffering from deficiency, rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of the accounts. In our view the complainant did not fall within the ambit of sec-2(1) (c) (e) of the C.P. Act. If the complainant is so aggrieved Civil Suit is the proper remedy to redress his grievance, if so advised. With these observations we find the complainant has failed to establish the deficiency in service on the part of the OP. Hence he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following:


O R D E R


The complaint is dismissed. In view of the nature of dispute no order as to costs.

Consumer Case No.796/2008

Between:-
Mr.Charubudla Harish Kumar Reddy,
S/o.Yadagiri Reddy, Aged about 28 years,
R/o.H.No.3-18-116, Pragathinagar,
Ramanthapur,
Hyderabad. …Complainant
And

• M/s.Cholamandalalam DBS Finance Ltd.,

3rd floor, ANK Towers, Raj Bhavan road,
Opp.HDFC Bank, Above Nokia Show Room,
Somajiguda, Hyderabad.

• M/s. Cholamandalalam DBS Finance Ltd.,

‘DARE’ House, 1st Floor, No.2 NSC Bose Road,
Chennai. ....Opposite Parties

This case coming on this day for final hearing before this Forum in the presence of Sri K.Visweswara Rao, Counsel for Complainant and Sri P.N.Praveen Kumar, advocate for the opposite parties, and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(Per Hon’ble Member, Smt. Lakshmi Makena on behalf of Bench)

1.This complainant is filed under section 12 of C.P. act 1986, seeking the following reliefs:-

1. To fore close the personal loan account of the complainant bearing Loan reference No.XSEGHIM00000163605 by receiving the entire amount due as on 10-06-2008 by deducting the further payments made by the complainant.

2. To retrain the opposite parties collecting the amounts from ECs, till the pending disposal of the main complaint.

3. To pay a sum of Rs.20,000/- towards the sufferance made by the opposite parties without receiving the fore closer amount towards fore closer of the loan account.

4. To pay compensation of Rs.10,000/- towards mental agony, hardship and serious inconvenience.

5. To pay costs of Rs.10,000/-and pas such and further order or orders which the Hon’ble Forum deems fit and proper in the circumstances of the case.

2. The case of the complainant is that he availed a personal loan of Rs.40,000/- on 11-10-2007. The opposite parties instead of releasing the entire loan amount of Rs.40,000/- has only released a sum of Rs.37,528-00 by deducting the huge sum of Rs.2,472/- towards the processing charges. However, the complainant in view of his urgent necessities has availed the said loan. The said loan amount has to be repaid @ Rs.2,239 p.m. for 36 months. The opposite parties have also stated that the complainant is at liberty to fore close the loan amount whenever he wants to fore-close the same. Being induced by the said facility only, the complainant availed the said loan.

3. It is further submitted that, since the rate of interest charging by the opposite parties is high sided and the complainant do not want to continue with the scheme in view of the said reason, the complainant requested the opposite parties to fore close the loan amount and take the lumpsum amount for the termination of the entire loan amount. The said request was made by the complainant was on 10-06-2008. The opposite parties have been postponing the fore closer of the loan on one pretext or other and so far, the said loan was not terminated by receiving the entire amount. When the complainant demanding for the fore closer, the opposite parties saying that at the particular period, they are not releasing the loans and not receiving the payments for fore closer of the loan amount and that requested the complainant to wait for some more time for fore closer.

4. It is further submitted that, being vexed with the indifferent attitude of the opposite parties, the complainant submitted the representation to the Reserve Bank of India, Hyderabad on 14-08-2008 requesting the said authority to look into the matter and take appropriate action for arranging to fore close the loan account of the complainant. In turn they informed the Reserve Bank of India, Chennai Branch asking them to look into the said matter, since the jurisdiction falls under their office. Inspite of the same, there was no response from the opposite parties. Hence, the complaint seeking for the reliefs as stated in the prayer part of the complaint.


5. The opposite parties in their written version submitted that the complainant after having fully comprehended and understood the terms and conditions of the loan in question, availed the personal loan of Rs.40,000/- by applying for the same and on being sanctioned the loan had signed an agreement on dt.08-10-2007 where after on 09-10-2007 the loan amount was disbursed. It is submitted that out of this a sum of Rs.37,528/-had been released in favor of the complainant and remaining Rs.2,472/- had been deducted towards Service Charges towards processing the documentation of the loan. These were accepted by the Complainant and the terms regarding this were duly explained to the complainant and the break up duly handed over to the complainant. It is submitted that said loan amount shall be repaid vide monthly installments @ Rs.2,239/- on per month installment for 36 months. It is denied that the complainant is/was at the liberty to foreclose the loan amount as and when he desires at any occasion as alleged or otherwise. It is submitted here that complainant may have exercised his foreclosure right after initial six months of the loan (refer clause 14 of the loan agreement “Pre payment”) by making a written request with the foreclosure amount, however the foreclosure shall be as per terms of agreement and the foreclosure should be done by cash or cheque for the foreclosure amount calculated. Rests of the averment in para under reply are wrong and denied.
It is denied that the respondents had been indifferent towards the complainant at any occasion as alleged or otherwise and regarding the service of letter dt.14-08-2008 to the RBI, Hyderabad from the said branch to Manager RBI Chennai on account of jurisdiction are a matter of record and the same needs no reply. It is submitted that a letter stating complainant’s desire to foreclose the loan was issued to RBI dated 14-08-2008 but no copy was given to the respondents. It is further submitted that the said date forwarded the same to the respondents vide letter dated September 17th and the same was received by the respondents on 23-092008. Further a reply with a copy to RBI was sent on 29-09-2008 by the Company denying any request for the foreclosure. Moreover it was also stated in the letter that the complainant may approach the branch for the purpose of foreclosure as per terms and conditions of the agreement.

It is submitted that the complainant under this matter be treated as the debtor to the respondents and further ordered to pay back the amount due on him i.e., the remaining installments. Further the averment as to the jurisdiction of Hyderabad Court is a matter of record and needs no reply. The rest of the averments in para under reply are wrong and denied. Hence the complaint is liable to be dismissed with costs.



6. The complainant filed their evidence affidavit reiterating the same stand as taken in the complaint.
Exs.A1 to A5 is marked for the complainant. Ex.A1 is the payment details, Ex.A2 is the letter to D.M. DNBS RBI, from complainant, Ex.A3 is the reply of RBI, dt.19-08-2008, Ex.A4 is the RBI letter dt.24-09-2008 and Ex.A5 is the Regd.post letter dt.29-09-2008.


7. The points that arise for consideration are:-
I. Whether there is any deficiency in service on the part of the opposite party and if so, whether the complainant is entitled for compensation? and if so, to what amount?
II. To what relief?



9 After perusing the material available on record it was found to be a fact that the complainant had availed a personal loan of Rs.40,000/- from the opposite parties on 11-10-2007 which has to be repaid in 36 monthly instalments at Rs.2,239/- per instalment. The complainant contended that since the rate of interest is on high side he decided to foreclose the loan amount by paying the balance of instalments at a time and made a request to the opposite parties on 10-06-2008. As the opposite parties failed to respond the complainant made a representation to the RBI at Hyderabad on 14-08-2008. The RBI at Hyderabad in turn addressed a letter to G.M. RBI at Chennai but no necessary action was taken by either of them and meanwhile the opposite parties in their usual course of business sent messages to the complainant for the EMI payments.
The complainant filed the loan amount receipt for Rs.37,528/-letters addressed to RBI Hyderabad and Chennai and a letter addressed by the opposite party to the complainant on 29-09-2008 which are marked as Exs.A1 to A5 respectively.
The opposite parties in their defence submitted that the complainant after accepting to the terms and conditions had availed the loan amount sanctioned by the opposite parties & as per the terms and conditions the loan amount should be repaid in 36 monthly instalments i.e., Rs.2,239/- per month. The opposite parties denied that they had assured the complainant that he can foreclose the loan amount as when desired by the complainant and informed the said fact through a letter dt.29-09-2008. The said letter is marked as Ex.A5.

Careful perusal of Ex.A5 revealed that the opposite parties had informed the complainant that as per the terms and conditions the complaint is bound to pay the instalments regularly on the due dates starting from 05-11-2007 and ending on 05-10-2010.


The opposite parties had not filed any documents including the said terms and conditions. The opposite parties plea is unacceptable as there is no documentation or any other evidence to show that the complainant had accepted to the terms and conditions at the time of availing the loan.

The opposite parties failed to establish their case. In fact the opposite parties inspite of granting no of adjournments and even after imposing costs failed to file their evidence affidavit. Hence the complaint is partly allowed directing the opposite partiesNo.1 & 2 joingly and severally to receive the balance of instalment amount due to the opposite parties and foreclose the loan account. The opposite parties are also directed to pay Rs.5,000/- towards compensation for mental agony and hardship along with Rs.2,000/- towards costs.

10. In the result, the complaint is partly allowed directing the opposite parties No.1 & 2 to receive the balance amount due to them and close the loan account reference No.XSEGHIM00000163605. The opposite parties are also directed to pay Rs.5,000/-(Rupees Five thousands only) towards compensation for mental agony along with Rs.2,000/-(Rupees Two thousands only) towards costs.
For compliance, 30 days time is granted.

ORDER

COMPLAINANT Mr.P.Govinda,S/o Ponnuswamy,Aged 47 years,R/o # 19, Siddapura,Opp. 10th Cross,Wilson Garden,Bangalore – 560 027.Advocate – Sri.U.Ashok

V/s.


OPPOSITE PARTIES

1. M/s.Cholamandam DBS Finance Ltd.,‘Dare House, 1st Floor,# 2, NSC Bose Road,Chennai – 600 001.Represented by its Director.

2. M/s.Cholamandam DBS Finance Ltd.,Having its Branch office at# 210/211, Citi Centre,Patto Complex,PANAJI,GOA – 403 001
Represented by its Branch Manager.Advocate – Sri.R.Balaji O R D E R This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to deliver the physical possession of the Lorry bearing No.GOA-9/T-5278 or refund Rs.6,90,000/- with 18% interest from 29.01.2007 till date and pay a compensation of Rs.50,000/- on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: OP agreed to sell the Lorry No.GOA-9/T-5278 to the complainant for a total price of Rs.6,90,000/-.


Complainant paid Rs.10,000/- on 18.01.2007 and remaining Rs.6,80,000/- is paid subsequently through with demand draft and cash which OP acknowledged. But thereafter OP failed to deliver the actual and physical possession of the said Lorry including the documents like R.C Book, form No.29 & 36 etc. The repeated requests and demands made by the complainant went in futile. On enquiry complainant came to know that OP in collusion with its Manager and third party Smt.Parvati Majik transferred the said vehicle in favour of Smt.Parvati Majik. Thus complainant felt that he is duped and cheated. Complainant demanded OP either to hand over the physical possession of the said Lorry along with documents or refund whatever the amount that is paid. There was no response. Complainant caused the legal notice on 06.10.2008.

Again there was no response from the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Complainant felt deficiency in service and unfair trade practice on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.


2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the said Lorry was actually sold one Mrs.Parvati Majik on 10.01.2006 itself. Due to the failure of Mrs.Parvati Majik in repaying the loan the vehicle was repossessed and it was sold to the complainant. In the mean time without the knowledge of the OP their manager Mr.Sarvesh G.Govekar with a malafide intention retransferred the said vehicle and handed over the possession to Ms.Parvati Majik and to Mr.Kabir Ahmad. Under such circumstances OP is unable to deliver the actual and physical possession of the said vehicle to the complainant. There is a litigation with regard to the possession of the said Lorry and a complaint pertaining to forgery, misappropriation, criminal breach of trust and cheating. Due to the said legal hurdle OP is unable to handover the possession along with other relevant documents.

There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.



3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard. 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved the deficiency in service on the part of the OP?

Point No. 2 :- If so, whether the complainant is entitled for the relief’s now claimed?

Point No. 3 :- To what Order?


5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative
Point No.2:- Affirmative
Point No.3:- As per final Order.


R E A S O N S

6. It is the case of the complainant that he intended to purchase a Lorry No.GOA-9/T-5278 from OP for a total cost of Rs.6,90,000/-. In that regard he paid Rs.10,000/- as earnest money then subsequently there to right up to 29.01.2007 he paid in all Rs.6,80,000/- to the OP on various dates both by way of demand draft and cash. OP acknowledged the receipt of Rs.6,90,000/-. Of course no where OP disputed this fact.

Now the grievance of the complainant is that in spite of the payment of the entire cost of the Lorry OP failed to deliver the actual and physical possession of the said Lorry along with the connected relevant documents like R.C, form No.29 & 36 etc. The repeated requests and demands made by the complainant went in futile. Thus he felt deficiency in service on the part of the OP. 7. According to the complainant on enquiry he came to know that OP in collusion with its manager and some third party Smt.Parvati Majik handed over the possession of the said Lorry to the said Smt.Parvati Majik with a malafide intention.

Thus he felt that he is cheated. Accordingly he caused legal notice to OP either to hand over the possession of the Lorry or refund whatever the amount that is paid. Copy of the legal notice is produced. Again there was no response. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake.



8. We have gone through the defence of the OP, OP flatly admits the receipt of Rs.6,90,000/- from the complainant. According to OP the said Lorry was sold to one Parvati Majik in the year 2006 and she failed to repay the loan. Hence the vehicle was repossessed. Then it was sold to the complainant. It is further contended that OP is liable to hand over the R.C Book, I.C, F.C, other connected documents including handing over the physical possession of the Lorry.

In the mean time their Manager Mr.Sarvesh G.Govekar with malafide intention handed over the possession of the said vehicle to Parvati Majik and to Mr.Kabir Ahmad now they are in possession of the same. OP has taken steps to prosecute them for the offences with regard to forgery, misappropriation, cheating etc. Under such circumstances OP is unable to hand over the possession of the vehicle and to deliver the documents with respect to the said vehicle. 9. If OP feels that its manager cheated it, it is the look out of the OP to initiate action against Manager as well as the party colluded with Manager namely Smt.Parvati Majik and Mr.Kabir Ahmad. Complainant has nothing to do with the said dispute. Complainant invested his hard earned money but unable to reap the fruits of his investment. It is all because of carelessness and negligence on the part of the OP.

When OP admits its failure in non delivery of the vehicle as well as the documents that itself amounts to deficiency in service. When OP is not in a position to deliver the possession of the vehicle with all fairness it would have refunded the amount received from the complainant. It is not a small amount it runs to the tune of Rs.6,90,000/- but no such steps are taken. The approach of the OP does not appear to be bonafide, reasonable, fair and honest. As already observed by us due to the hostile attitude of the OP, complainant is put to greater prejudice and hardship.



10. Having considered the facts and circumstances of the case it appears there is no immediate possibility of OP handing over the physical and actual possession of the said Lorry in question in a nearest future may be because of some legal hurdles. Complainant can’t be kept waiting indefinitely. In our view justice will be met by directing the OP to refund Rs.6,90,000/- with interest and pay some nominal compensation with regard to mental agony along with litigation cost. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: O R D E R The complaint is allowed in part. OP is directed to refund Rs.6,90,000/- together with interest at the rate of 12% p.a from 29.01.2007 till realization, pay a compensation of Rs.10,000/- and litigation cost of Rs.1,000/- to the complainant.

COMPLAINANT Dr. Suresh Joshi, S/o. Late Rama Rao Joshi, Aged 65 years, No. 70/2, A-block, Raheja Residence, BDA Complex Road, Koramangala, Bangalore. Advocate (C.S. Patil)

V/s.

OPPOSITE PARTY
The Manager, Reliance General Ins. Co. Ltd., Mysore Trade Centre, Opp-KSRTC Bus Stand, Mysore – 570 001. Also at No. 56, Mission Road, Bangalore – 27. Advocate (Ravi. S. Samprathi)


O R D E R

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to settle the insurance claim for Rs.7,55,000/- and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is the R.C. Owner of the vehicle bearing No. KA-12-N-3268. OP insured the said vehicle for the period from 04.12.2007 to 03.12.2008, IDV is Rs.7,55,000/-. On 03.02.2008 the said vehicle met with an accident in Belgaum Gao road due to dash of a lorry bearing No. KA-22-A-3499, extensive damages were caused to the said vehicle that too beyond repairable. Complainant intimated the said accident to the OP, lodged complaint to the concerned police, thereafter made a claim to the OP by producing all the necessary documents. With all that OP failed to settle the claim inspite of the repeated requests and demands made.

Complainant issued the legal notice on 28.07.2008. Again there was no response. Hence complainant felt the deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.


2. On appearance, OP filed the version denying all the allegations made by the complainant in toto.

According to OP it has not repudiated the claim of the complainant, it kept pending the claim for want of necessary documents which complainant failed to produce inspite of repeated demands. Complainant is bound by the terms and conditions of the policy including the exclusion clauses. On the receipt of the information about the accident OP took steps for survey and appointed one Ravi Udakeri and CSV Acharaya to assess the damages caused to the vehicle. The claim of the complainant is highly exorbitant and arbitrary. There is no deficiency in service of any kind on the part of the OP. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.

3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.


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

Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP?
Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed?
Point No. 3 :- To what Order?



5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.



R E A S O N S


6. At the outset it is not at dispute that the complainant is the R.C. Owner of the vehicle bearing No. KA-12-N-3268 and OP covered the insurance of the said vehicle for the period 04.12.2007 to 03.12.2008 the declared value of the vehicle is Rs.7,55,000/-. The fact that the said vehicle met with an accident on 03.02.2008 is also not at dispute. Now the grievance of the complainant is that though he brought the said fact of accident to the notice of the OP immediately and made claim by producing all the necessary documents, there was no response from the OP.

Complainant lodged a complaint immediately to the concerned police. He also sent the consent letter. Again there was no response. According to the complainant there was a total damage caused to the said vehicle which is not in a repairable condition, there is a total loss.


7. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. When OP failed to settle the claim within a reasonable time, complainant got issued the legal notice on 28.07.2008.

The copy of the legal notice and postal acknowledgement are produced. Again there was no response. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake. OP has not disputed the fact of accident or it having taken place during the insurance coverage period.



8. OP says that it has appointed one Mr. Ravi Udakeri and CSV Acharaya to inspect the damaged vehicle and survey. Unfortunately the survey report is not filed nor affidavit of the persons appointed by the OP for the needful are filed. OP to the reasons best know to it wants to suppress certain material facts and the documents which are well within its knowledge. It would have been more fair on the part of the OP to produce the survey report and act in accordance with the said report. But no such steps are taken. Here we find the deficiency in service.



9. OP has further contended that complainant failed to produce the necessary documents with regard to the said vehicle damaged in the accident. As already observed by us, complainant has produced the R.C., insurance policy, consent letter, FIR copy, IMV report. When the surveyor and the loss assessor of the OP visited the spot, examined the damaged vehicle naturally they must have taken the photographs, even those photographs are not produced. Under such circumstances we have no other go but to believe the say of the complainant that the vehicle is extensively damaged and it is beyond the repairs.


10. When that is so, the complainant is entitled for the IDV of the said vehicle. OP can take back all the parts of the wrecked vehicle including salvages. The non-settlement of the said claim well within the reasonable time must have naturally caused both mental agony and financial loss to the complainant, that too for no fault of his. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP, hence he is entitled for the relief. Accordingly we answer point nos.1 and 2 and proceed to pass the following:



O R D E R


The complaint is allowed in part. OP is directed to settle the claim for Rs.7,55,000/- and take back the wrecked vehicle and the salvages. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication.

Smt. Rukmini V. Naibagkar,
r/o H. No.322/2,
Vadamal, Velguem,
Taluka Bicholim – Goa.

Shri Shekar Vithal Naibagkar,
r/o H. No.322/2,
Vadamal, Velguem,
Taluka Bicholim – Goa. …………………….Complainant

V

M/s. Cholamandalam Investment
& Finance Co. Ltd.,
Date House, Old No.234, New No.2,
N.S.C. Bose Road, Parry’s
Chennai 600 001. .......………...…..Opposite Party-1

M/s. Cholamandalam Investment
& Finance Co. Ltd.,
Patto, Citi Centre, IInd Floor,
Panaji – Goa, .........………...…..Opposite Party-2



Date: - 28/04/09


O R D E R


(Per Smt. Shanti Maria Fonseca, Sr. Member)


The Complainant has come before us seeking the following reliefs:

(a) That the Opponents be directed to issue loan clearance certificate and to cancel the endorsement on the R.C. Book.

(b) That the Opponents be directed to pay to the Complainant a compensation of Rs. 50,000/- for the loss caused due to negligent attitude alongwith interest at the rate of 15% p.a. till the disposal of the application.

(c) Any other relief that the court deems fit and proper.



Brief Facts of the Case:-

1.According to the Complainant No.1 he had availed of a loan from the Opposite Party -1 for a truck. It is his case that the Complainant No.2 who is the guarantor for the loan, had issued totally 42 cheques, 9 cheques of Rs.14,750/- each and remaining 33 cheques of Rs.21,500/- each. It is his case that all the cheques were realised by the Opposite Party -2. The same has not been disputed by the Opposite Parties.

2.The case of the Opposite Parties however is that 2 of the cheques of the Complainant had bounced and that because of this bouncing of the above two cheques the Opposite Party -2 had to communicate to the Opposite Party -1 who in turn had to consult their legal department at Pune.

3.During the time of arguments the Opposite Party has admitted that the said cheques which had bounced were subsequently cleared. It was also admitted that the Complainant never defaulted in any of the earlier 40 payments. The last two cheques which bounced were also cleared immediately.
`

OBSERVATIONS

1.The Complainants have admitted that prayer (a) of the complaint stands infructous as the same has been met.

2.The Complainant has not been able to explain to us as to how he reached the figure of Rs.50,000/- as compensation @ 15% interest p.a. As such we pass the following;

3.On going through all documents and evidence placed before us we are of the considered opinion that there has been a deficiency in service on the part of the Opposite Parties as the delay of 6 months in giving a no clearance certificate has not been explained by the Opposite Party.

ORDER

1.Opposite Parties are directed to pay the Complainant cost of Rs.10,000/- (Rupees ten thousand only) towards legal fees and harassment/ damages for delay.

2.Order to be complied within 15 days of receipt of this order.

3.In the event that the said order is not complied within the specified time then the Opposite Party is to pay the amount with interest @ 12% from the date of Complainant filing the suit in the Forum until the date of payment.

4.Parties to collect copy of order from the Forum Office on any working day.

5.Opposite Parties are directed to pay to the Complainant a sum of Rs.10,000/- only (ten thousand only)

K.Naveenkumar,S/o.T.V.Kalaiselvan,

25, Indira nagar, Sungam byepass Road,

Ramanathapuram, Coimbatore-45. --- Complainant

Vs.

Cholamandalam DBS Finance,

114, Sri Arthanari Towers,

Race Course Road, Coimbatore-18. --- Opposite Party



This case coming on for final hearing before us today in the presence of Mr.C.R.Vijayakumar, Advocate for complainant and opposite party remained absent and set exparte 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 pay a sum of Rs.4 lakhs as compensation for mental agony, with 9% interest, to refund of Rs.984 and the cheque bouncing charges of Rs.1050 and to return the ECS and HDFC cheques given as security and to pay cost of the proceedings.

The case of the complaint are as follows:

1. The Complainant had approached the opposite party for seeking personal loan and the opposite party granted a (Small Ticket Personal Loan) personal loan of Rs.15,000. The loan cheque No.887282 given by complainant to the HDFC bank. The number of instalments is 24 and the rate of interest is 28.72 per annum and the interest received from the complainant is 42.60%. The instalment amount per EMI is Rs.984 and the loan account No. is XSEGCO1 00000028025. The complainant had presented the loan cheque given by the opposite party for encashment at UTI Bank, Avinashi Road branch, Coimbatore. The complainant’s bank account number is 014010100466141. The loan availed by the opposite party came to the complainant account on 6.12.2006.The opposite party has received as security 4 ECS cheques and also 17 cheques belonging to the HDFC bank Ltd. R.S.Puram, Coimbatore. The said 17 cheques have been numbered from 450379 to 450395. During the 8th EMI the complainant had intended to settle the loan amount as full and final settlement basis.

2. The opposite party had agreed for the complainant’s offer for final settlement at the condition to pay to the opposite party for Rs.13525. Though the rate of interest demanded by the opposite party as per loan agreement is 28.72 but the opposite party recovered from the complainant is 42.60%. The complainant had issued to the opposite party the cheque No.000008 for Rs.13525 dated 28.8.07 belonging to the Kotak Mahindra Bank Ltd, Avinashi Road Branch, Coimbatore. The opposite party had encashed the said cheque and had given receipt to the complainant as a proof of full and final settlement of loan amount which has been numbered 145363 dated 28.8.07.

3. When the complainant demanded on 28.8.07 to return back the ECS and HDFC bank cheques given as security to the opposite party, the opposite party said that it will return it after some time and after undergoing some verifications.

Further the opposite party had misused the 9th EMI cheque by presenting and encashing Rs.984. The opposite party had also presented the cheques for encashment at the subsequent EMI dates, which had amounted to negligence and deficiency in service thereby causing severe mental agony and pain to the complainant. The complainant had given stop payment to his banker on 8.12.07.The complainant had issued a legal notice dated 11.12.2007 to the opposite party for which no reply was given by the opposite party. The details of misusing and bouncing cheques and thereby causing loss to the complainant are as follows:

a. The foreclosure receipt for completely settling balance loan amount was given by the opposite party on 28.8.07

b. Subsequently the opposite party had misused the cheque No.450380 of the complainant on 6.9.07 and illegally extracted Rs.984

c. On 9.10.07 the opposite party had misused the cheque of the complainant numbered 450381 by presenting it and had caused a loss of cheque bouncing charges of Rs.350 to the complainant

d. On 7.11.07 the opposite party had misused the cheque of the complainant numbered 450382 by presenting it and had caused a loss of cheque bouncing charges of Rs.350 to the complainant

e. On 7.12.07 the opposite party had misused the cheque given by the complainant which have been numbered 450383 and caused a loss of Rs.350 as cheque bouncing charges to the complainant

The complainant has to be returned the cheques given by him as security and he is also entitled to get back the illegally extracted money of Rs.2034/-. Hence this complaint.

The point for consideration is

1. Whether the opposite party has committed deficiency in service? If so to what relief the complainant is entitled to?

ISSUE 1:

4. The case of the complainant is that even after settling the entire loan amount on 28.8.07 the opposite party has misused the cheques and illegally collected various amounts which cause loss and severe mental agony.

5. The main allegations are:

a. The foreclosure receipt for completely settling balance loan

amount was given by the opposite party on 28.8.07 but this was

not given effect to

b. Subsequently the opposite party had misused the cheque

No.450380 of the complainant on 6.9.07 and illegally extracted

Rs.984

c. On 9.10.07 the opposite party had misused the cheque of the

complainant numbered 450381 by presenting it and had caused

a loss of cheque bouncing charges of Rs.350 to the complainant



d. On 7.11.07 the opposite party had misused the cheque of the complainant numbered 450382 by presenting it and had caused a loss of cheque bouncing charges of Rs.350 to the complainant

a. On 7.12.07 the opposite party had misused the cheque given by the complainant which have been numbered 450383 and caused a loss of Rs.350 as cheque bouncing charges to the complainant

b. The rate of interest as per terms and conditions is 28.72% but the rate of interest received from the complainant is 42.70%p.a.



6. Ex.A2 is the foreclosure receipt for the payment of 13525/-. As such the loan amount given by the opposite party has been fully paid by the complainant which includes the principle, interest and foreclosure charges. But as per Ex.A7 namely the bank statement on 6.9.07 the opposite party has presented a cheque and encashed Rs.984 through cheque No.450380. Again on 9.10.07, 7.11.07 and 7.12.07 the opposite party has collected cheque bouncing charging of Rs.350 each for the cheque No.450381 to 450383.

7. Even after settling the entire loan amount the opposite party has collected further amounts this amounts to deficiency in service. Hence the opposite party is liable to compensate the complainant.

8. In the result, we direct the opposite party to refund the illegally collected money of Rs.984 and the cheque bouncing charges of Rs.1050 to the complainant, to return the HDFC cheques given by the complainant as security to the opposite party, to direct the opposite party to remove the complainant’s name from the CIBIL and to pay a compensation of Rs.25,000 to the complainant and to pay cost of Rs.1000 within one month from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Gurminder Singh S/o Sh. Kishan Singh, House No. 3031-A, Guru Nanak Sector, Dr. K.K.Nohria Street, Bathinda.


Versus

1.

Sh. Harmandeep Singh Thind, Branch Manager of M/s. Cholamandalam MS General Insurance Co. Ltd., 303, IIIrd Floor, Novelty Plaza, Opposite Park Plaza, Bhaiwala Chowk, Ludhiana.
2.

Sh. Hardarshan Singh, Zonal Manager of M/s. Cholamandalam MS General Insurance Co. Ltd., SCO Nos. 118-120, Sector 34-A, Chandigarh.
3.

Komal Kadambiny, Oficer and authorised signatory of M/s. Cholamandalam MS General Insurance Co. Ltd., SCO Nos.118 to 120,Sector 34-A, Chandigarh.
4.

Sh. S.S Gopalarthnam, Managing Director of M/s. Cholamandalam MS General Insurance Co. Ltd., Dare House, 2nd Floor, No. 2, N.S.C Bose Road, Chennai.


1.

Sh. Gurminder Singh complainant had filed Consumer Complaint No. 310 of 2.11.2007 against the opposite parties under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') as his insurance claim concerning his Innova Car bearing registration No. PB-03Q-1320 had not been settled by them. The said complaint was accepted by this Forum vide order dated 9.6.2008 and opposite parties were directed to do as under :-

( i ) Complainant would transfer the ownership of the car and execute letter of subrogation as per requirements of opposite party No. 1 in its favour conferring all the rights in the car including its ownership with it i.e. Opposite insurance company through its Regional Manager within two months from the date of receipt of copy of this order.

( ii ) After the complainant transfers the ownership and executes letter of subrogation as above, opposite parties No. 1 to 3 would pay Rs. 7,07,931/- to ICICI Bank, Bibiwala Road, Ist Foor, Queensland Tower, Bathinda alongwith interest @ 9% P.A from 22.7.2007 till payment within a month.

( iii ) Opposite parties No. 1 to 3 would pay Rs. 10,000/- to it (ICICI Bank Ltd.) alongwith interest @ 9% P.A from 4.8.2007 till payment within one month from the date compliance is made by the complainant as per sub para No. ( i ) of Para No. 18.

( iv ) Aforesaid ICICI Bank Ltd. would adjust the amount sent by opposite parties No. 1 to 3 in the loan account of the complainant regarding the car and if any amount is found excess, it would remit the same to the complainant within ten days from the date of receipt thereof, failing which it would pay interest on the excess amount @ 9% P.A till payment.

( v ) In case, complainant does not transfer the ownership of the car and execute letter of subrogation as per clause ( i ) within the period referred to above in favour of the opposite insurance company, he would not be entitled to interest on the amount of Rs. 7,07,931/- after two months after the receipt of copy of this order.

( vi ) Compliance regarding payment of costs be made within 30 days from the date of receipt of copy of this order.”
2.

In compliance of the said order, on 10.7.2008 complainant sent letter dated 3.7.2008 alongwith Forms No. 29 & 30 duly signed by him, affidavit regarding sale dated 27.6.2008, letter of subrogation dated 27.6.2008 duly attested by Notary Public to the General Manager, M/s. Cholamandlam MS General Insurance Co. Ltd., Ludhiana which was duly received by him on 12.7.2008 and as such, opposite parties were bound to pay an amount of Rs. 7,07,931/- to ICICI Bank within one month alongwith interest @ 9% P.A from 22.7.2007 till payment and also to pay Rs. 10,000/- to the said bank alongwith interest @ 9% P.A from 4.8.2007 till payment. The said bank was to remit the excess amount of the said amount after adjusting the outstanding loan amount to the complainant within 10 days from the date of receipt of said amount, failing which Bank was liable to pay interest @ 9% P.A till payment. Complainant asserts that till date he has not received any letter of compliance from opposite parties No. 1 to 3 nor has he received any amount from ICICI Bank. He had written letter dated 30.8.2008 to the Manager, ICICI Bank, Bibiwala Road, Bathinda inquiring as to whether any amount has been deposited by the opposite parties in compliance of the order dated 9.6.2008 passed by this Forum, but they have made report as under :-

“We have not received any cheque from Cholamandalam for the above said claim”
3.

Complainant avers that the opposite parties were bound to comply with the said order dated 9.6.2008 within one month from 10.7.2008 i.e. the date when the documents in compliance with para No. 18 ( i )of that order were sent to them. He alleges that opposite parties have not complied with the said order knowingly, willfully, dishonestly and with malafide intention. In these circumstances, complainant has filed the present application under section 27 of the Act for fining and punishing the opposite parties.
4.

Opposite parties filed a joint reply taking legal objections that they have complied with the order passed by this Forum on receipt of the documents from the complainant. Two demand drafts bearing Nos. 110938 and 110939 for Rs. 7,75,730/- and Rs. 11,036/- drawn in the name of ICICI Bank Ltd., A/c Gurminder Singh have been sent to ICICI Bank and the same have also been acknowledged by the bank. It has been further pleaded that on receipt of the above demand drafts, ICICI Bank has issued No Objection Certificate in respect of the complainant's vehicle loan account. On merits, it has been pleaded that compliance of the order was made immediately after receiving the required legal documents including keys from the complainant. The other averments made in the complaint have been denied and a prayer has been made for its dismissal.
5.

We have heard the learned counsel for the parties and gone through the record of the case very carefully.
6.

Learned counsel for the complainant urged that the opposite parties were required to obey/comply with the order dated 9.6.2008 passed by this Forum within a period of one month from the date of compliance made by the complainant i.e. w.e.f 10.7.2008, but the opposite parties have not cared to implement the same. Rather, they have willfully disobeyed the same. Therefore, opposite parties are liable to be punished and sentenced under section 27 of the Act.
7.

The learned counsel for the opposite parties vehementally opposed the arguments put forward by the learned counsel for the complainant and it was argued that infact on receipt of the documents from the complainant, opposite parties immediately prepared two separate demand drafts as per the order of the Forum on 22.9.2008 for an amount of Rs. 7,75,730/- and another for Rs. 11,036/- both drawn on State Bank of India, Bhagu Road, Bathinda and the order of the Forum was complied with in letter and spirit and therefore, the action initiated under section 27 of the Act is liable to be dropped.
8.

We have considered the rival contentions of both the learned counsel. After taking into consideration the entire material available on the record, it is fact that opposite parties were required to implement the order of the Forum dated 9.6.2008 within a period of one month. At the same time, the complainant was also required to comply with certain directions i.e. the complainant was required to hand-over the documents etc. to the opposite parties. The record reveals that the documents were sent on 3.10.2008 and the demand drafts were got prepared for compliance of the order of the Forum by the opposite parties on 22.9.2008. It appears that the complaint was instituted on 25.9.2008, whereas the demand drafts were already prepared for delivering the same to the complainant on 22.9.2008 meaning whereby that the opposite parties had no intention to violate the order of this Forum. If this would have been the intention on the part of the opposite parties, the demand drafts would not have been got prepared two days earlier to the filing of the complaint. The record reveals that the demand drafts have already been delivered to the complainant and the order of the Forum has been complied with in letter and spirit. There appears to be no malafide on the part of the opposite parties so as to call for any action against any of the opposite parties under section 27 of the Act. Accordingly, this complaint being without any merit stands dismissed.

Amandeep Goyal aged about 2 years, son of sh. Jagdish Raj Goyal, r/o 2633, Sector 32-A, Chandigarh Road, Ludhiana, at present r/o H. NO. 40-A, Bachittar Enclave, Bhamian Road, Chandigarh Road, Ludhiana.

….Complainant.
Versus
1- M/s Chola Mandalam M.S. General Insurance Co. Ltd. having its Regd. And Head Office, Dare House, 2nd Floor, NSC, Bose Road, Chennai-600001, India.

2- M/s Chola Mandalam M.S. General Insurance Co. Ltd., Novelty Plaza, Bhai Wala Chowk, Ferozepur Road, Ludhiana through its Manager.
….Opposite parties.

O R D E R

1- Briefly stated, ccomplainant argued that he purchased new car on 31.5.2007 from Hyundai Motor India Ltd., for Rs.3,41,236/- and got it comprehensively insured vide policy no.MPC0004008300000 w.e.f. 31.5.2007 to 30.5.2008. It was registered with the DTO, Ludhiana vide no.PB-10CA-6744. On 31.5.07, the car was parked in front of his house at 10.00 p.m., when on 1.6.2007, complainant got up in the morning on 1.6.07, found the vehicle to be stolen by someone. Matter was reported to P.S. Divn. 7 vide FIR No.115 dt.1.6.07 u/s 379 of IPC, but the police despite best efforts, could not trace the car and submitted untraced report with Illaqa Magistrate.

Complainant submitted his claim for his stolen vehicle and it was repudiated by opposite party on 8.1.2008 on ground that there was delay of 3 days in giving information to the opposite party. Ultimately, on intervention of Insurance Ombudsman, 75% of the insured value i.e. Rs.2,55,427/- was paid to the complainant after deducting 25%. They deducted 25% illegally, as the new car was stolen within 24 hours of the purchase. Hence, such act of opposite party claimed amounting to deficiency in service, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, and sought payment of Rs.85308/- plus Rs.50000/-, Rs.25000/- and Rs.10,000/-, total Rs.1,70,308/- with 12% interest.

2- Opposite party contested the complaint by filing reply, taking preliminary objections that complaint is not maintainable, it is false and frivolous. It is barred by principle of res judicata. Earlier complaint filed by the complainant was decided by Insurance Ombudsman, Chandigarh, vide order dated 26.3.2008 and the amount to the extent of 75% was ordered to be paid on non standard basis and Rs.2,55,427/- was paid to the complainant in compliance of order of Insurance Ombudsman, Chandigarh, with due consent of the complainant. The complainant has satisfied the award and executed duly discharge voucher dated 28.5.2008 in full and final settlement. So, not entitled to any further amount. There is no deficiency in service on their part.

Complainant has not come to this Fora with clean hands. Lodging of claim with opposite party on 7.6.2007 is admitted. But averred that complainant violated conditions no.1 and 9 of the policy. Opposite party deputed Sh. N.K. Sodhi, investigator who, after investigation, gave his report dated 28.7.2007 subject to terms and conditions of the policy. Claim was processed and finding complainant to have committing breach of condition no.1 and 9, it was repudiated vide letter dated 8.1.2008, served upon the complainant. Further averred that on representation of complainant, opposite party did not agree with him. Thereafter, he filed complaint before Insurance Ombudsman, Chandigarh, who decided the complaint on 26.3.2008, holding that in order to support case of insurer for delayed information and after taking fair and just view, payment of claim on non standard basis to the extent of 75% of IDV by penalizing the complainant to the extent of 25% should meet the ends of justice and further Ombudsman Chandigarh ordered that 75% of IDV should be paid to the complainant within 15 days.

Opposite party also submitted that complainant gave a letter dated nil, giving consent, to accept award of Ombudsman, Chandigarh, 75% of IDV. So, opposite party paid 75% of IDV and deducted 25% of IDV as per order dated 26.3.2008 Ex.R1. Further averred that the complainant has received a payment of Rs.2,55,427/- in full and final settlement of his claim in respect of theft of his vehicle under the present policy vide discharge voucher. Rest all the allegations are denied being wrong and incorrect and it is prayed that the complaint should be dismissed.

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

4- Complainant argued that he purchased a new car on 31.5.2007 from Hyundai Motor India Ltd., for Rs.3,41,236/- and it was comprehensively insured vide policy no.MPC0004008300000 w.e.f. 31.5.2007 to 30.5.2008 (Ex.C1) and registered with the DTO, Ludhiana vide no.PB-10CA-6744. He further argued that the car of the complainant was parked in front of his house at 10.00 p.m. on 31.5.2007, but unfortunately, when complainant got up in the morning on 1.6.07, the vehicle was found to be stolen by someone. Matter was reported to P.S. Divn. 7 vide FIR No.115 dt.1.6.07 u/s 379 of IPC (Ex.C2). Police despite best efforts, could not trace the car and submitted untraced report with Illaqa Magistrate (Ex.C3).

He also argued that he submitted his claim for his stolen vehicle and it was repudiated by opposite party on 8.1.2008 vide letter Ex.R4 on ground that the complainant informed opposite party on 7.6.2007, whereas his vehicle was stone on intervening night of 31.5.2007 and 1.6.2007 and claim of the complainant was rejected on this ground that he furnished the information to opposite party regarding theft of vehicle on 7.6.2007, which was not as per policy conditions.

It is also to mention here that in case of theft which may be subject of claim under the policy, the insured shall give immediate notice to the police and cooperative with company in securing conviction of the offender. Further argued that repudiation of the claim vide letter dated 8.1.2008 is wrong and illegal. Further argued that on intervention of Insurance Ombudsman, 75% of the insured value which comes out to Rs.2,55,427/- was paid to the complainant vide letter dated 26.3.2008 (Ex.R1) and 25% was deducted from the total insured amount.

5- Opposite party argued that the complainant lodged a claim with opposite party on 7.6.2007 and thus, he violated conditions of policy and the opposite party deputed Sh. K.N. Sodhi investigator to investigate the matter, who submitted his report on 28.7.2007, stating that complainant breached conditions of policy and claim was repudiated on 8.1.2008(Ex.R4). Further argued that the complainant was reviewed on representation dt. 11.1.2008 for reconsideration. But the opposite party did not agree with contention of the complainant and reiterated their stand of repudiation of claim which was communication to him vide letter Ex.R4 dated 8.1.2008. Further argued that the complainant filed complaint before the Insurance Ombudsman, Chandigarh, and they have decided his case vide order dated 26.3.2008 Ex.R1, holding that in order to support case of insurer for delayed information and after taking fair and just view, payment of claim on non standard basis to the extent of 75% of IDV by penalizing the complainant to the extent of 25% should meet the ends of justice and further Ombudsman Chandigarh ordered that 75% of IDV should be paid to the complainant within 15 days.

Opposite party also submitted that complainant gave a letter dated nil Ex.R2 in which, he gave his consent to accept award of Ombudsman, Chandigarh, 75% of IDV. Opposite party as such, paid 75% of IDV and deducted 25% of IDV as per order dated 26.3.2008 Ex.R1. Further argued that the complainant has received a payment of Rs.2,55,427/- in full and final settlement of his claim in respect of theft of his vehicle under the present policy vide discharge voucher Ex.R3.

6- From above facts and figures, it is clear that the complainant has given his consent Ex.R2 as below:-

“I refer my claim of Santro Car no.PB10CA-6764 and subsequently, my settlement with the Insurance Ombudsman, Chandigarh. I hereby wish to inform you that I agree with the settlement done in Ombudsman and accordingly, my 75% of IDV should be given immediately”.

7- And against his consent, Insurance Ombudsman, has given verdict dated 26.3.2008 Ex.R1, awarding 75% of IDV to complainant after deducting 25% of IDV. Thereafter, on the basis of order of the Insurance Ombudsman, the complainant has received payment of Rs.2,55,427/- vide receipt Ex.R3 in full and final settlement. Therefore, the Fora reaches at the conclusion that the complainant gave consent to accept the claim vide letter Ex.R2 and thereafter, he received amount of Rs.2,55,427/- in full and final payment vide Ex.R3, so, the complainant can not agitate this matter again.

8- Where discharge voucher has been signed and no element of fraud or misrepresentation involved, the person can not claim further amount from the insurance company. Reliance placed on Oriental Ins. Co. Ltd. Vs Shaheenkhan Mubassir Alam Khan IV (2005) CPJ-414 (Maharashtra State Commission); K.R. Rajashekar Vs New India Assurance Co. Ltd. IV (2005) CP-623(Karnataka State Commission) and Shambu Nath Bal Mukand Vs New India Assurance Co. III (2004) CPJ-409 (UP State Commission).

Narain Singh son of Sh. Dass Ram resident of village Pardana Post Office Sidhpur, Tehsil Sarkaghat, District Mandi, H.P.

…Complainant





V/S



Branch Manager, Cholamandalam Investment Finance Co. Ltd Branch Office Village and Post Office Gutkar, Tehsil Sadar, District Mandi, H.P. ..Opposite party.








ORDER.



This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of the vehicle No. HP-28-2445 which has been hypothecated with the opposite party. Said vehicle was purchased vide agreement No. MNIN109907 and as per the same , the amount had to be repaid in 38 instalments of Rs.12,765/- each . The first instalment of loan was taken in advance by the opposite party at the time of release of the vehicle . The opposite party used to draw the instalments through cheques issued by the complainant through his account every month and not even a single cheque was dishonoured . That after drawing some instalments the opposite party stopped taking payment through cheque and demanded instalments in cash from the complainant . The complainant averred that he had paid 16 instalments in cash in the office of the opposite party and remaining instalments were given through cheques which were issued at the time of agreement and took back his post dated cheques agaisnt which the complainant paid the instalments in cash.


The complainant alleged that on 17-2-2006 he cleared the whole of the loan amount .After clearance of the whole of loan amount , the complainant approached the opposite party for obtaining no objection certificate so that the vehicle in question could be released from hypothecation agreement because the complainant wants to sell his vehicle but the opposite party had refused to give the No objection certificate on the pretext that his loan amount outstanding was overdue and the complainant had to pay more instalments and upon this opposite party was asked that in case any instalment was pending then the same might be drawn through his advance cheques issued by him at the time of execution of the agreement .


The complainant further averred that he requested the Head Office of the opposite party through letter dated 2-6-2006 alongwith copies of receipts of payment wherein it has been made clear that he had paid full and final loan amount and nothing outstanding was to be recovered from him and requested to issue the no objection certificate but the opposite party had paid no heed to the above representation and after lapse of 22 months, no objection certificate had not been issued by the opposite party and due to which the value of the vehicle had been decreased more than Rs.90,000/-. The complainant alleged that aforesaid act and conduct of the

opposite party amounts to deficiency in service as well as unfair trade practice and had claimed a sum of Rs.90,000/- on account of compensation. With these allegations, the complainant had sought a direction to the opposite party to issue the No objection certificate . Apart from this, a sum of Rs.90,000/- has also been claimed alongwith interest at the rate of 12% per annum . Besides cost of complaint in the sum of Rs.5,000/- has also been claimed.

2. The opposite party filed reply wherein preliminary objections have been raised that the complaint is not maintainable on account of omissions and commissions done by the complainant, that the present dispute , if any has arisen out of contractual relationship and the same did not fall within the purview of the Act, that the complaint pertains to account and the same does not fall within the purview of the Act, that the complaint is time barred and that in view of Specific agreement clause this Forum has no jurisdiction to adjudicate the matter.. On merits it has been averred that the complainant had to repay the loan amount in 36 instalments as against 38, as alleged .


It has been admitted that as per the agreement the instalments were to be collected on the basis of the cheques issued by the complainant but denied that the cheques so issued by the complainant had never been dishonoured . It has further been averred that the cheques had been dishonoured many times . It has been denied that the complainant had cleared the entire loan amount and pleaded that a sum of Rs.8067/- on account of our due / additional financial charges was due up to 30-4-2006 and an amount of Rs.8067/- is still to be paid by him to the opposite party. It has been averred that the No objection certificate will be issued on deposit of aforesaid amount . Rest of the allegations have been denied in toto. The complaint had been sought to be dismissed.

3. The complainant had filed rejoinder reiterating the contents of the complainant and controverting those as made in the reply.

4. We have heard the ld. counsel for the parties and have carefully gone through the record .It is not in dispute that the opposite party had financed the vehicle of the complainant in the year 2003. According to the complainant, he finally cleared the entire loan amount on 17-2-2006 without default of even a single instalment . Conversely the case of the opposite party is that the cheques of the complainant have been dishonoured number of times and as per the agreement in case of dis- honour of the cheque, the complainant had to pay additional financial charges on the accrued amount and in this manner the complainant had to pay an amount of Rs.8067/- to the opposite party on account of over due /additional financial charges as on 30-4-2006 when the account of the complainant was closed. Further case of the opposite party is that the complainant shall be given no objection certificate only on payment of the aforesaid amount by the complainant.

5 Now it has to be seen as to whether the opposite party is justified in demanding the amount of Rs.8067/- from the complainant . The answer to this poser in all fairness as well as in the interest of justice would be in the negative because according to the accounts statement filed by the opposite party itself which is Annexure R-1, only two cheques of the complainant have been dishonoured i.e. one on 15th August 2003 and another on 15-4-2004. The perusal of the record further reveals that against cheque dated 15-8-2003 which was dishonoured , the complainant had paid Rs,14000/- on 24-11-2003 vide receipt No. 208676 which includes the instalment of Rs.12,765/-, Rs,735/- as delayed payment charges and Rs.500/- as cheque bounce charges. Against cheque dated 15-4-2004 ,complainant had paid a sum of Rs.13,645/- on 29-5-2004 vide receipt No. 705493 which includes Rs.12,765/- as instalment, Rs.380/- as delayed payment charges and Rs.500/- as cheque bounce charges .


The complainant has filed photocopies of aforesaid two receipts dated 24-11-2003 and 29-5-2004 which have been duly issued by the opposite party . The opposite party has not denied the deposit of the aforesaid amount against the dishonour of two cheques , issuance of these receipts and amount indicated in these receipts .In our opinion , once the opposite party had already received the delayed payment charges and cheque bounce charges from the complainant , it cannot demand over due / additional financial charges on account of dishonour of the two cheques.


Therefore the demand of Rs.8067/- made by the opposite party on account of overdue/ additional financial charges is totally unfair and it amounts to deficiency in service as well as unfair trade practice . The opposite party had not denied that the complainant had paid all the instalments of the loan well in time as per the schedule of the agreement . Hence we hold that the opposite party had failed to satisfy this Forum that a sum of Rs.8067/- is outstanding against the complainant .Thus we are satisfied that the complainant has proved that the opposite parties had been deficient in providing service to the complainant and he is liable to be compensated on account of harassment apart from a direction for handing over the No objection certificate.

6 In view of what has been discussed hereinabove, the complaint is allowed and the opposite party is directed to hand over the No objection certificate to the complainant within 30 days from the date of receipt of the copy of this order failing which to pay penalty of Rs.100/- per day from the date of filing of the complaint till the “no objection certificate is ”handed over to him In addition to this , the opposite party shall pay Rs.2500 /- as compensation for harassment and Rs.2000/- as costs of litigation to the complainant.

7 Copy of this order be supplied to the parties free of cost as per Rules.



8 File, after due completion be consigned to the Record Room.

M/S Indo Farm Tractors and Motors Limited a Public Limited Company Registerd under the Companies Act-1956 and having its works and Factory at EPIP-II, Baddi, Village Thana, Tehsil Nalagarh, Distrit Solan, H.P. and having its Registered Office at SCO No.859 Ground Floor, NAC, Manimajra, Chandigarh through its duly authorized Representatives Mr. Rajbir Singh Legal Advisor and Mr. Sanjeev Sharma Secretarial Assistant.



… Complainant.

Versus





1. The Managing Director, Cholamandalam MS General Insurance Company Limited (A joint Venture between Murugappa Group & Mitsui Sumitomo Insurance Co. Limited), Registered Office: Dare House, 2nd Floor No.2, N.S.C. Bose Road, Chennai-600001, Tamilnadu (India).



2. The Regional Manager, MS General Insurance Company Limited (A joint Venture between Murugappa Group & Mitsui Sumitomo Insurance Co. Limited), 9th Floor, Kanchenjunga Building, Barakhamba Road, New Delhi-110001.



3. The Managing Directror, Royal Sundaram Alliance Insurance Company Limited, 46, Whites Road, Chennai600014, Tamilnadu (India).





…Opposite Parties







O R D E R



The instant complaint has been filed by the complainant-company, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant-company is a Public Limited Company registered under the Companies Act, 1956 having its Registered Office at SCO 859, Ground Floor, NAC, Manimajra, Chandigarh (UT). It is averred that the complainant-company took two general insurance policies from the OPs No. 1 & 3 having policies No.PSP-00008095-000-00 dated 13.05.2005 and YB00003044000100 dated 12.05.2006 respectively covering the risk for a period of two years, commencing from 9th May, 2005 (midnight) to 8th May, 2006(midnight) and from 9th May, 2006 (midnight) to 8th May, 2007 (midnight).


The complainant-company further proceeded to aver that a storm occurred at Baddi on the night of 8th May, 2006 which had caused heavy damage and destruction to the building/structure, machinery and other assets of the complainant-company insured with the OP No.1 & 3, and the fact of storm having occurred was also proved by the Metrological Department vide its report dated 08.08.2006. It is averred that the complainant-company, immediately reported the matter to the OP No.3, on, 09.05.2006, thereby brining the loss suffered by it, to their notice, who in turn appointed surveyor M/S J.C. Gupta and Company Private Limited to assess the loss suffered by it, who vide survey report dated 13.06.2006 assessed the loss to the tune of Rs.5,65,000/-, whereas, the complainant-company had incurred Rs.8,22,523/- on account of the expenses for the repair and reinstatement work of the loss suffered by it.


The complainant-company further avers that the OPs-Company instead of settling their claim, dilly-dallied its settlement on one reason or the other, and finally failed to settle the claim. Hence, feeling aggrieved and dissatisfied by the inaction of the complainant-company, it is averred that there is apparent deficiency in service on the part of the OPs-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OPs, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, status of the complainant-company as a consumer, violation of the terms & conditions of the insurance policy and the complaint being false and vexatious. On merits, it is contended that thunder with trace rain started at 10.00 pm on 8th May, 2006 and continued thereafter into next day, i.e. 9th May, 2006, hence the loss producing event started on 8th May, 2006 at 10.00 pm, in the fag end of the policy issued by OPs No.1 & 2 in which OP No.3 was also coinsurer and it continued on 9th May, 2006 during the policy period covered under the policy issued by OP No.3, as such, the rainfall of 18.7 mm alongwith thunder was reported on 9th May 2006 as against trace rainfall alongwith thunder on 8th May, 2006 and as per definition of thunder, the loss actually occurred on 9th May, 2006. It is further contended that despite being not liable for the loss, the OPs No.1 & 2 appointed the surveyor to assess the loss, and the amount as assessed by the surveyor was offered to the complainant-company, who refused to accept the same, without any basis.


They further contend that the intimation of the incident was reported to them after an unexplained delay of about 10 days, hence the information of loss supplied to the OP No.3 at earlier point of time had resulted in denying the opportunity to the surveyor/officials of the OPs No.1 & 2 to have immediate access to the premises/alleged loss. The OP No.3, also filed separate reply wherein it has also denied the allegations as put forth by the complainant and contended that they are not liable to make good the loss of the complainant. Hence, it is denied that there is any deficiency in service on the part of the OPs-Company.

3. Thereafter, the parties led evidence in the shape of affidavit/documents in support of their respective rival contentions.

4. We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case.

5. The parties before us do not contest the fact of the complainant having purchased the policy appended with this complaint as Annexure C-2 covering the risk of destruction, in, the premises of the complainant situated at Baddi Tehsil Nalagarh District Solan, by natural events. The date of the commencement of the policy was 9th May, 2005 till mid night of 8th May, 2006. The policy was jointly issued by the OPs 1, 2 & 3. So also, the parties do not contest, that, another policy appended as Annexure C-3 was also purchased by the complainant from the OP No.3, covering the risk of damage to the premises of the complainant situated, at, Baddi Tehsil Nalagarh District Solan, by, natural events. The date of the commencement of the policy was from 00.00 hours on 09.05.2006, till, the midnight of 8th May, 2007. The complainant avers in his complaint supported by an affidavit, that, in a storm which commenced in the late hours on 8th May, 2006 and continued, till, the early hours of 9th May, 2006, his, premises came to suffer devastation, hence, he, laid a claim with the OPs-Company, which came to be repudiated by them.

6. The fact of the storm having occurred, is, borne out by Annexure C-4 which, is, a report of a Meteorologist reflecting the fact, that, the storm commenced, in, the late hours of 8thMay, 2006 and lasted till early morning hours of 9th May, 2006. The said report of the Meteorologist, has not come to be repudiated, hence, had attained finality, as such, enabling us, to, conclude that the contention of the complainant, that, the, storm did occur commencing from the early hours of 8th May, 2006 and lasting till 9th May, 2006, is, hence substantiated.

7. The intimation of the storm and its having devastated the premises of the complainant, which, was, insured by the complainant under the aforesaid insurance polices purchased by him from the OPs, referred to above, was, conveyed, to, the OP No.3 which fact, of, intimation to OP No.3, has, not, come to be denied by it. Moreover, the existence of the report of the loss assessor, appointed by the OP No.3, on receiving intimation of the destruction wreaked by the storm to his premises insured under the policies purchased from the OP No.3, and which bears Annexure C-7, enables us, to, hence infer, that, not only timely intimation of the damage by the storm was conveyed by the complainant, to, the OP No.3, but also, an, ensuing inference is to be made that the damage as has been elucidated in Annexure C-7, had, come to be wreaked on the premises of the complainant.

8. Even though, the OPs No.1 & 2 seeks to oust the claim of the complainant on the ground that, a, belated intimation of the devastation was conveyed to OPs No.1 & 2, yet, given the existence of Annexure C-7, we are constrained to infer (a) that timely intimation was given to the OP No.3; (b) that even if the loss assessor in Annexure C-7 for reasons detailed in it, has, declined the claim as put forth by OP No.3, yet, his having depicted in Annexure C-7 which stands un-repulsed, by, cogent evidence, the, fact that the loss to the extent of 5.00 lacs was caused to the premises of the complainant by the storm which had occurred and had commenced from the late hours of 8th May, 2006 and had lasted till the early hours of 9th May, 2006, hence, estops, the OPs No.1 & 2, to, oust the claim of the complainant, on the plea that, given the belated intimation of the damage caused to his premises by the storm which occurred during the aforesaid period, no, damage was caused to his premises.


As sequel we conclude that not only that the storm occurred during the currency of the insurance policies bearing Annexures C-2 & C-3, but also, it, wreaked damage on the premises of the complainant. We, now proceed, hence, to determine the quantum of compensation which is to be ordered to be payable to the complainant.

9. Even though, both OPs 1 & 2 and OP No.3, seek to confine the loss to be assessed in favour of the complainant to the quantum as is referred in the report of the loss assessor, bearing, Annexure R-1(i). However, the assessment of damage as valued by the loss assessor in his report bearing Annexure R-1(i), is, un-unworthy of reliance in assessing the loss caused to the premises of the complainant situated at Baddi, as a sequel to the devastation which befell the premises of the complainant, in, the after math, of, the storm and during the currency of the policies, as, purchased by the complainant from the OPs, for, the following reasons (i) That Annexure R-1(i) evidently by a perusal of its contents reveals that, it, was prepared at a time when the work of restoration of the damaged portion of the premises was still underway, hence, the loss assessor, in, Annexure R-1(i) having assessed the loss to the extent of Rs.2,95,434/-, at, that stage, which, the OPs assert to be the only amount payable to the complainant, is, hence, an assessment to be not vindicated, in adjudging the total quantum of the loss which befell the premises of the complainant, as, more expenses for fully restoring the damaged portion of the premises were, hence, incurable by the complainant; then what was spent at the prepatory/preliminary stage;


(ii) that in the face of the report of the loss assessor existing on the record of this case as Annexure C-7, wherein, the, loss assessor estimated the loss to the premises of the complainant to the extent of Rs.5.00 lacs and that, too, at a stage when no steps had been by the complainant for restoring the damaged portion and with no, evidence having been adduced on record by the OPs, to, dispute the credibility of Annexure C-7, obviously when Annexure C-7 having been prepared by the loss assessor, at, the earliest stage in the after math of the storm and when no steps had been taken by the complainant to restore the damage done to his building by the storm which occurred during the currency of the insurance policies and its estimation being hence, somewhat conjectural and being in conflict with, the loss as assessed by the loss assessor under Annexure R-1(i) who, too, had come to assess the loss caused to the premises of the complainant at a stage when only part of the premises damaged by a natural cause had been restored by the complainant.

Hence, with Annexure R-1(i) having prepared at a stage when the restoration work of qua only part of the building damaged, by, natural causes during the currency of the two policies purchased by the complainant from the OPs, had, been under taken, hence, when for reasons aforesaid, as such, then the assessment under Annexure R-1(i), when, has been concluded by us to be not providing a safe parameter for assessing the damage caused to the building of the complainant, by, a natural event which amount of loss to be indemnified to the complainant ought to have been, rather, detailed by a loss assessor appointed at a stage when the entire works for restoration of the building of the complainant damaged by a natural event had been completed at the instance of the complainant, which assessment, rather, does not exist on record. Therefore, the assessment of loss under Annexure C-7, as also, Annexure R-1(i) is, of, no value in persuading us in determining the quantum of compensation to be paid to the complainant.

10. Therefore, we deem it fit and appropriate that the OPs shall proceed, on, receiving the bills, as, furnished by the complainant to the OPs reflecting the expenses incurred by him for undoing the damage and caused by a natural event, which befell his premises during the currency of the policies purchased by the complainant from the OPs, shall, assess the loss payable to the complainant.


The report of the loss assessor shall be prepared within a period of forty five days and thereafter, in, accordance with the limits of liabilities of the insurance policies contained, at, Annexure C-2, the sum, as, assessed by the loss assessor shall, be, to that extent be borne by the OPs No.1, 2 & 3. Since, Annexure C-3, is, also a policy purchased by the complainant from the OPs during whose currency damage was done to the premises of the complainant, by, a natural event, hence, the OP No.3 shall also be obliged, if, permissible, on, receiving the assessment of loss by loss assessor, to, defray the entire amount as detailed in it, in, favour of the complainant. In the above terms, the complaint stands disposed of. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Narain Singh son of Sh. Dass Ram resident of village Pardana Post Office Sidhpur, Tehsil Sarkaghat, District Mandi, H.P.

…Complainant





V/S



Branch Manager, Cholamandalam Investment Finance Co. Ltd Branch Office Village and Post Office Gutkar, Tehsil Sadar, District Mandi, H.P. ..Opposite party.








ORDER.



This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he is owner of the vehicle No. HP-28-2445 which has been hypothecated with the opposite party. Said vehicle was purchased vide agreement No. MNIN109907 and as per the same , the amount had to be repaid in 38 instalments of Rs.12,765/- each . The first instalment of loan was taken in advance by the opposite party at the time of release of the vehicle .


The opposite party used to draw the instalments through cheques issued by the complainant through his account every month and not even a single cheque was dishonoured . That after drawing some instalments the opposite party stopped taking payment through cheque and demanded instalments in cash from the complainant . The complainant averred that he had paid 16 instalments in cash in the office of the opposite party and remaining instalments were given through cheques which were issued at the time of agreement and took back his post dated cheques agaisnt which the complainant paid the instalments in cash.


The complainant alleged that on 17-2-2006 he cleared the whole of the loan amount .After clearance of the whole of loan amount , the complainant approached the opposite party for obtaining no objection certificate so that the vehicle in question could be released from hypothecation agreement because the complainant wants to sell his vehicle but the opposite party had refused to give the No objection certificate on the pretext that his loan amount outstanding was overdue and the complainant had to pay more instalments and upon this opposite party was asked that in case any instalment was pending then the same might be drawn through his advance cheques issued by him at the time of execution of the agreement .


The complainant further averred that he requested the Head Office of the opposite party through letter dated 2-6-2006 alongwith copies of receipts of payment wherein it has been made clear that he had paid full and final loan amount and nothing outstanding was to be recovered from him and requested to issue the no objection certificate but the opposite party had paid no heed to the above representation and after lapse of 22 months, no objection certificate had not been issued by the opposite party and due to which the value of the vehicle had been decreased more than Rs.90,000/-. The complainant alleged that aforesaid act and conduct of the

opposite party amounts to deficiency in service as well as unfair trade practice and had claimed a sum of Rs.90,000/- on account of compensation. With these allegations, the complainant had sought a direction to the opposite party to issue the No objection certificate . Apart from this, a sum of Rs.90,000/- has also been claimed alongwith interest at the rate of 12% per annum . Besides cost of complaint in the sum of Rs.5,000/- has also been claimed.

2. The opposite party filed reply wherein preliminary objections have been raised that the complaint is not maintainable on account of omissions and commissions done by the complainant, that the present dispute , if any has arisen out of contractual relationship and the same did not fall within the purview of the Act, that the complaint pertains to account and the same does not fall within the purview of the Act, that the complaint is time barred and that in view of Specific agreement clause this Forum has no jurisdiction to adjudicate the matter.. On merits it has been averred that the complainant had to repay the loan amount in 36 instalments as against 38, as alleged . It has been admitted that as per the agreement the instalments were to be collected on the basis of the cheques issued by the complainant but denied that the cheques so issued by the complainant had never been dishonoured .


It has further been averred that the cheques had been dishonoured many times . It has been denied that the complainant had cleared the entire loan amount and pleaded that a sum of Rs.8067/- on account of our due / additional financial charges was due up to 30-4-2006 and an amount of Rs.8067/- is still to be paid by him to the opposite party. It has been averred that the No objection certificate will be issued on deposit of aforesaid amount . Rest of the allegations have been denied in toto. The complaint had been sought to be dismissed.

3. The complainant had filed rejoinder reiterating the contents of the complainant and controverting those as made in the reply.

4. We have heard the ld. counsel for the parties and have carefully gone through the record .It is not in dispute that the opposite party had financed the vehicle of the complainant in the year 2003. According to the complainant, he finally cleared the entire loan amount on 17-2-2006 without default of even a single instalment . Conversely the case of the opposite party is that the cheques of the complainant have been dishonoured number of times and as per the agreement in case of dis- honour of the cheque, the complainant had to pay additional financial charges on the accrued amount and in this manner the complainant had to pay an amount of Rs.8067/- to the opposite party on account of over due /additional financial charges as on 30-4-2006 when the account of the complainant was closed. Further case of the opposite party is that the complainant shall be given no objection certificate only on payment of the aforesaid amount by the complainant.

5 Now it has to be seen as to whether the opposite party is justified in demanding the amount of Rs.8067/- from the complainant . The answer to this poser in all fairness as well as in the interest of justice would be in the negative because according to the accounts statement filed by the opposite party itself which is Annexure R-1, only two cheques of the complainant have been dishonoured i.e. one on 15th August 2003 and another on 15-4-2004. The perusal of the record further reveals that against cheque dated 15-8-2003 which was dishonoured , the complainant had paid Rs,14000/- on 24-11-2003 vide receipt No. 208676 which includes the instalment of Rs.12,765/-, Rs,735/- as delayed payment charges and Rs.500/- as cheque bounce charges. Against cheque dated 15-4-2004 ,complainant had paid a sum of Rs.13,645/- on 29-5-2004 vide receipt No. 705493 which includes Rs.12,765/- as instalment, Rs.380/- as delayed payment charges and Rs.500/- as cheque bounce charges .


The complainant has filed photocopies of aforesaid two receipts dated 24-11-2003 and 29-5-2004 which have been duly issued by the opposite party . The opposite party has not denied the deposit of the aforesaid amount against the dishonour of two cheques , issuance of these receipts and amount indicated in these receipts .In our opinion , once the opposite party had already received the delayed payment charges and cheque bounce charges from the complainant , it cannot demand over due / additional financial charges on account of dishonour of the two cheques.


Therefore the demand of Rs.8067/- made by the opposite party on account of overdue/ additional financial charges is totally unfair and it amounts to deficiency in service as well as unfair trade practice . The opposite party had not denied that the complainant had paid all the instalments of the loan well in time as per the schedule of the agreement . Hence we hold that the opposite party had failed to satisfy this Forum that a sum of Rs.8067/- is outstanding against the complainant .Thus we are satisfied that the complainant has proved that the opposite parties had been deficient in providing service to the complainant and he is liable to be compensated on account of harassment apart from a direction for handing over the No objection certificate.

6 In view of what has been discussed hereinabove, the complaint is allowed and the opposite party is directed to hand over the No objection certificate to the complainant within 30 days from the date of receipt of the copy of this order failing which to pay penalty of Rs.100/- per day from the date of filing of the complaint till the “no objection certificate is ”handed over to him In addition to this , the opposite party shall pay Rs.2500 /- as compensation for harassment and Rs.2000/- as costs of litigation to the complainant.

7 Copy of this order be supplied to the parties free of cost as per Rules.



8 File, after due completion be consigned to the Record Room.

M/S Indo Farm Tractors and Motors Limited a Public Limited Company Registerd under the Companies Act-1956 and having its works and Factory at EPIP-II, Baddi, Village Thana, Tehsil Nalagarh, Distrit Solan, H.P. and having its Registered Office at SCO No.859 Ground Floor, NAC, Manimajra, Chandigarh through its duly authorized Representatives Mr. Rajbir Singh Legal Advisor and Mr. Sanjeev Sharma Secretarial Assistant.



… Complainant.

Versus





1. The Managing Director, Cholamandalam MS General Insurance Company Limited (A joint Venture between Murugappa Group & Mitsui Sumitomo Insurance Co. Limited), Registered Office: Dare House, 2nd Floor No.2, N.S.C. Bose Road, Chennai-600001, Tamilnadu (India).



2. The Regional Manager, MS General Insurance Company Limited (A joint Venture between Murugappa Group & Mitsui Sumitomo Insurance Co. Limited), 9th Floor, Kanchenjunga Building, Barakhamba Road, New Delhi-110001.



3. The Managing Directror, Royal Sundaram Alliance Insurance Company Limited, 46, Whites Road, Chennai600014, Tamilnadu (India).





…Opposite Parties




O R D E R:




Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant-company, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant-company is a Public Limited Company registered under the Companies Act, 1956 having its Registered Office at SCO 859, Ground Floor, NAC, Manimajra, Chandigarh (UT). It is averred that the complainant-company took two general insurance policies from the OPs No. 1 & 3 having policies No.PSP-00008095-000-00 dated 13.05.2005 and YB00003044000100 dated 12.05.2006 respectively covering the risk for a period of two years, commencing from 9th May, 2005 (midnight) to 8th May, 2006(midnight) and from 9th May, 2006 (midnight) to 8th May, 2007 (midnight). The complainant-company further proceeded to aver that a storm occurred at Baddi on the night of 8th May, 2006 which had caused heavy damage and destruction to the building/structure, machinery and other assets of the complainant-company insured with the OP No.1 & 3, and the fact of storm having occurred was also proved by the Metrological Department vide its report dated 08.08.2006.


It is averred that the complainant-company, immediately reported the matter to the OP No.3, on, 09.05.2006, thereby brining the loss suffered by it, to their notice, who in turn appointed surveyor M/S J.C. Gupta and Company Private Limited to assess the loss suffered by it, who vide survey report dated 13.06.2006 assessed the loss to the tune of Rs.5,65,000/-, whereas, the complainant-company had incurred Rs.8,22,523/- on account of the expenses for the repair and reinstatement work of the loss suffered by it.


The complainant-company further avers that the OPs-Company instead of settling their claim, dilly-dallied its settlement on one reason or the other, and finally failed to settle the claim. Hence, feeling aggrieved and dissatisfied by the inaction of the complainant-company, it is averred that there is apparent deficiency in service on the part of the OPs-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OPs, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, status of the complainant-company as a consumer, violation of the terms & conditions of the insurance policy and the complaint being false and vexatious. On merits, it is contended that thunder with trace rain started at 10.00 pm on 8th May, 2006 and continued thereafter into next day, i.e. 9th May, 2006, hence the loss producing event started on 8th May, 2006 at 10.00 pm, in the fag end of the policy issued by OPs No.1 & 2 in which OP No.3 was also coinsurer and it continued on 9th May, 2006 during the policy period covered under the policy issued by OP No.3, as such, the rainfall of 18.7 mm alongwith thunder was reported on 9th May 2006 as against trace rainfall alongwith thunder on 8th May, 2006 and as per definition of thunder, the loss actually occurred on 9th May, 2006. It is further contended that despite being not liable for the loss, the OPs No.1 & 2 appointed the surveyor to assess the loss, and the amount as assessed by the surveyor was offered to the complainant-company, who refused to accept the same, without any basis.


They further contend that the intimation of the incident was reported to them after an unexplained delay of about 10 days, hence the information of loss supplied to the OP No.3 at earlier point of time had resulted in denying the opportunity to the surveyor/officials of the OPs No.1 & 2 to have immediate access to the premises/alleged loss. The OP No.3, also filed separate reply wherein it has also denied the allegations as put forth by the complainant and contended that they are not liable to make good the loss of the complainant. Hence, it is denied that there is any deficiency in service on the part of the OPs-Company.

3. Thereafter, the parties led evidence in the shape of affidavit/documents in support of their respective rival contentions.

4. We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case.

5. The parties before us do not contest the fact of the complainant having purchased the policy appended with this complaint as Annexure C-2 covering the risk of destruction, in, the premises of the complainant situated at Baddi Tehsil Nalagarh District Solan, by natural events. The date of the commencement of the policy was 9th May, 2005 till mid night of 8th May, 2006. The policy was jointly issued by the OPs 1, 2 & 3. So also, the parties do not contest, that, another policy appended as Annexure C-3 was also purchased by the complainant from the OP No.3, covering the risk of damage to the premises of the complainant situated, at, Baddi Tehsil Nalagarh District Solan, by, natural events.


The date of the commencement of the policy was from 00.00 hours on 09.05.2006, till, the midnight of 8th May, 2007. The complainant avers in his complaint supported by an affidavit, that, in a storm which commenced in the late hours on 8th May, 2006 and continued, till, the early hours of 9th May, 2006, his, premises came to suffer devastation, hence, he, laid a claim with the OPs-Company, which came to be repudiated by them.

6. The fact of the storm having occurred, is, borne out by Annexure C-4 which, is, a report of a Meteorologist reflecting the fact, that, the storm commenced, in, the late hours of 8thMay, 2006 and lasted till early morning hours of 9th May, 2006. The said report of the Meteorologist, has not come to be repudiated, hence, had attained finality, as such, enabling us, to, conclude that the contention of the complainant, that, the, storm did occur commencing from the early hours of 8th May, 2006 and lasting till 9th May, 2006, is, hence substantiated.

7. The intimation of the storm and its having devastated the premises of the complainant, which, was, insured by the complainant under the aforesaid insurance polices purchased by him from the OPs, referred to above, was, conveyed, to, the OP No.3 which fact, of, intimation to OP No.3, has, not, come to be denied by it. Moreover, the existence of the report of the loss assessor, appointed by the OP No.3, on receiving intimation of the destruction wreaked by the storm to his premises insured under the policies purchased from the OP No.3, and which bears Annexure C-7, enables us, to, hence infer, that, not only timely intimation of the damage by the storm was conveyed by the complainant, to, the OP No.3, but also, an, ensuing inference is to be made that the damage as has been elucidated in Annexure C-7, had, come to be wreaked on the premises of the complainant.

8. Even though, the OPs No.1 & 2 seeks to oust the claim of the complainant on the ground that, a, belated intimation of the devastation was conveyed to OPs No.1 & 2, yet, given the existence of Annexure C-7, we are constrained to infer (a) that timely intimation was given to the OP No.3; (b) that even if the loss assessor in Annexure C-7 for reasons detailed in it, has, declined the claim as put forth by OP No.3, yet, his having depicted in Annexure C-7 which stands un-repulsed, by, cogent evidence, the, fact that the loss to the extent of 5.00 lacs was caused to the premises of the complainant by the storm which had occurred and had commenced from the late hours of 8th May, 2006 and had lasted till the early hours of 9th May, 2006, hence, estops, the OPs No.1 & 2, to, oust the claim of the complainant, on the plea that, given the belated intimation of the damage caused to his premises by the storm which occurred during the aforesaid period, no, damage was caused to his premises. As sequel we conclude that not only that the storm occurred during the currency of the insurance policies bearing Annexures C-2 & C-3, but also, it, wreaked damage on the premises of the complainant. We, now proceed, hence, to determine the quantum of compensation which is to be ordered to be payable to the complainant.

9. Even though, both OPs 1 & 2 and OP No.3, seek to confine the loss to be assessed in favour of the complainant to the quantum as is referred in the report of the loss assessor, bearing, Annexure R-1(i). However, the assessment of damage as valued by the loss assessor in his report bearing Annexure R-1(i), is, un-unworthy of reliance in assessing the loss caused to the premises of the complainant situated at Baddi, as a sequel to the devastation which befell the premises of the complainant, in, the after math, of, the storm and during the currency of the policies, as, purchased by the complainant from the OPs, for, the following reasons (i)


That Annexure R-1(i) evidently by a perusal of its contents reveals that, it, was prepared at a time when the work of restoration of the damaged portion of the premises was still underway, hence, the loss assessor, in, Annexure R-1(i) having assessed the loss to the extent of Rs.2,95,434/-, at, that stage, which, the OPs assert to be the only amount payable to the complainant, is, hence, an assessment to be not vindicated, in adjudging the total quantum of the loss which befell the premises of the complainant, as, more expenses for fully restoring the damaged portion of the premises were, hence, incurable by the complainant; then what was spent at the prepatory/preliminary stage; (ii) that in the face of the report of the loss assessor existing on the record of this case as Annexure C-7, wherein, the, loss assessor estimated the loss to the premises of the complainant to the extent of Rs.5.00 lacs and that, too, at a stage when no steps had been by the complainant for restoring the damaged portion and with no, evidence having been adduced on record by the OPs, to, dispute the credibility of Annexure C-7, obviously when Annexure C-7 having been prepared by the loss assessor, at, the earliest stage in the after math of the storm and when no steps had been taken by the complainant to restore the damage done to his building by the storm which occurred during the currency of the insurance policies and its estimation being hence, somewhat conjectural and being in conflict with, the loss as assessed by the loss assessor under Annexure R-1(i) who, too, had come to assess the loss caused to the premises of the complainant at a stage.


when only part of the premises damaged by a natural cause had been restored by the complainant, hence, with Annexure R-1(i) having prepared at a stage when the restoration work of qua only part of the building damaged, by, natural causes during the currency of the two policies purchased by the complainant from the OPs, had, been under taken, hence, when for reasons aforesaid, as such, then the assessment under Annexure R-1(i), when, has been concluded by us to be not providing a safe parameter for assessing the damage caused to the building of the complainant, by, a natural event which amount of loss to be indemnified to the complainant ought to have been, rather, detailed by a loss assessor appointed at a stage when the entire works for restoration of the building of the complainant damaged by a natural event had been completed at the instance of the complainant, which assessment, rather, does not exist on record. Therefore, the assessment of loss under Annexure C-7, as also, Annexure R-1(i) is, of, no value in persuading us in determining the quantum of compensation to be paid to the complainant.

10. Therefore, we deem it fit and appropriate that the OPs shall proceed, on, receiving the bills, as, furnished by the complainant to the OPs reflecting the expenses incurred by him for undoing the damage and caused by a natural event, which befell his premises during the currency of the policies purchased by the complainant from the OPs, shall, assess the loss payable to the complainant. The report of the loss assessor shall be prepared within a period of forty five days and thereafter, in, accordance with the limits of liabilities of the insurance policies contained, at, Annexure C-2, the sum, as, assessed by the loss assessor shall, be, to that extent be borne by the OPs No.1, 2 & 3.


Since, Annexure C-3, is, also a policy purchased by the complainant from the OPs during whose currency damage was done to the premises of the complainant, by, a natural event, hence, the OP No.3 shall also be obliged, if, permissible, on, receiving the assessment of loss by loss assessor, to, defray the entire amount as detailed in it, in, favour of the complainant. In the above terms, the complaint stands disposed of. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Yahwant Shobta S/O Shri Sher Singh Shobta,

R/O Village & p.O. Baghi, Tehsil Kotkhai,

District Shimla, H.P.



… Complainant.

Versus





1. Cholamandlam Investment & Finance Co. Limited

Through its Manager, SCO-23-24-25, Third Fllor, Sector 34-A, Chandigarh.



2. Locatin Head, Cholamandlam Investment & Finance Co. Shubham Credits, First Fllor, Aryan Estate,

Near L.I.C. Office, The Mall, Solan.



…Opposite Parties




O R D E R:


This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant alleges that he financed a vehicle with the OPs for an amount of Rs.3,42,000/-, which amount was to be repaid to the OPs, in 36 monthly instalments of Rs.11,210/-.


He further avers that for the repayment of aforesaid loan instalments, the OPs obtained 36 post dated cheques from him, hence, paid entire loan amounts to the OPs within the stipulated period, as per the terms and conditions of the agreement, but the OPs failed to issue no objection certificate to him, despite his repeated requests in this behalf. Hence, it is averred that, there is apparent deficiency in service on the part of the OP and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. Notice of this complaint was issued to the OPs, who despite service failed to put in appearance before this Forum, hence, was ordered to be proceeded against exparte.

3. We have heard the learned counsel for the complainant and have also thoroughly scanned the entire record of the case.

4. The complainant in support of his claim, as asserted in the complaint, has appended reliance on legal notice dated 31.03.2008 issued to the OPs bearing Annexure C-1, and his sworn detailed affidavit. Besides, the complainant has also placed on record the statement of account issued by his banker, i.e. UCO bank reflecting the payment of loan amounts, issued to the OPs. The aforesaid documents having remained un-repulsed and un-benumbed on record, has to be accorded sanctity, as the OPs, have failed to rebut or controvert the averments as asserted in the complaint, by him.

5. Therefore, the obvious, inference which sprouts from the aforesaid discussion, is, that the OPs despite having received the entire loan amount, from the complainant, has failed to issue no objection certificate in his favour, hence, by not issuing the NOC, the OPs have not only committed deficiency in service, but have also indulged in an unfair trade practice.

6. Consequently, we allow the complaint and direct the OPs as under:-

i) That the OPs shall issue no objection certificate to the complainant, in respect of the financed vehicle;



ii) That the OPs shall also pay Rs.2500/- as compensation to the complainant, for rendering deficient service and indulging in an unfair trade practice.



ii) That the litigation cost is quantified at Rs.1000/- payable by the OPs to the complainant;



iii) That the OPs shall comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



6. The learned counsel for the complainant undertook to collect the certified copy of this order from the office, free of cost, as per rules. Since, the OPs have not contested the complaint, as such office is directed to sent a certified copy of this order to the OPs through UPC for compliance forthwith. The file after due completion, be consigned to record room.

Shri Shankar Lal S/o Sh. Hira Ram,

R/o Vill. Haripur, P.O.Kumarhatti,

Tehsil Solan, Distt. Solan, H.P.



… Complainant

Versus



1. M/S Cholamandalam finance and Investment Co. Ltd., S.C.O 23,24 and 25, 3rd Floor, Sector 34-A Chandigarh-160022.



2. M/S Cholamandalam Finance and Investment Co. through its Branch Manager, City Center, Plaza, The Mall Solan, H.P.





…Opposite Parties.








O R D E R:

The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he in order to earn his livelihood, purchased one Swaraj Mazda for a sale consideration of Rs.4,62,057/-, which was financed by him with the OPs, for a sum of Rs.4,37,469/-, which was to be repaid by him in monthly instalments of Rs.12,500/- and the OPs, also, received from him, 36 blank cheques at the time of financing the vehicle.


He further avers that in the month of March, 2003, when he got the statement of account from the Bank, it transpired that the cheque bearing No.42493, have been encashed in the name of M/S Swaraj Mazda, though, he has no concern of any kind with M/S Swaraj Mazda. Thereafter, the complainant was informed by the OPs that since he has committed default in repayment of the loan instalments, hence, have to pay additional finance charges, besides the amount of the dishonoured cheques.


The complainant further proceeded to aver that that, on, 16.02.2005, the OPs took entire paper of the vehicle with a view to force him to pay additional finance charges including interest, as also, the amount of the unpaid instalment. He further avers that, on, 26.02.2005, the OPs took the possession of the vehicle when at that time there was cash of Rs.15,500/-. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs filed written version to the complaint and contended that the total repayable amount, which was to be paid by the complainant, comes to Rs.4,37,469/-, which was to be paid in 35 instalments of Rs.12,500/- each, as per the agreement executed interse the parties. It is further contended that the complainant handed over only 35 cheques, and cheque bearing No.424931 was never issued to the OPs.


The complainant intentionally and deliberately committed default in the repayment of the instlments and a total sum of Rs.68,854/- is outstanding against the complainant, hence, the vehicle was repossessed in pursuance of the default of clause 19(B,(a) and clause 2(b) of the agreement. Hence, there being no deficiency in service, the complaint is sought to be dismissed.

3. We have heard the learned counsel for the complainant and have also thoroughly scanned the entire record of the case meticulously.

4. The only controversy, which requires determination from this Forum, is, as to whether the complaint filed by the complainant against the OPs is legally maintainable and that the OPs were legally justified in seizing the vehicle in the eventuality of the complainant purportedly making default in payment of instalments.

5. In so far as the assertion of the complainant as asserted in the complaint regarding repossession of the vehicle is concerned, the OPs do not dispute the said fact, however, they contend that the vehicle was repossessed in pursuance of reliance by them on a clause, of, the agreement envisaging that on failure of the complainant to make payment of the outstanding loan amount, they, could repossess the vehicle.


The complainant no where asserted either in the complaint or in evidence by way of affidavit that he was regularly repaying the instalment to the OPs, hence, nothing was outstanding against him and, that, as such, the resort by the OP to the clause empowering them to retake possession of the vehicle, is, untenable. Hence, for lack of such specific proof on record on behalf of the complainant, we are not in a position to come to a definite conclusion that the OPs were guilty of rendering deficient service or that they have indulged in an unfair trade practice, by seizing the vehicle of the complainant illegally.

6. Moreover, from the pleadings of the parties, it divulges that it is a case of settlement of account and without adducing cogent and convincing evidence, we are unable to draw a conclusion there, is, any amount outstanding against the complainant or that the OPs have not properly maintained the account of the complainant.


The complainant in his complaint, no where assert that he has made the entire payment of loan instalments to the OPs or that the account maintained by the OPs is not correct, hence, it requires elaborate detailed evidence in order to determine the controversy interse the parties, which cannot be gone into by this Forum in a summary proceedings, hence, we do not find any substance in the complaint, and as such, the complaint is liable to be dismissed.

7. In the light of the above, the complaint is dismissed being without any merit. However, the parties are left to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.