O R D E R

Sri. Satheesh Chandran Nair (President):

                 The petitioner filed this petition u/s.12 of C.P. Act for getting relief against the opposite party. 

        2. The contents of the petition is briefly stated as follows:  The petitioner has availed a car loan from IndusInd Bank, Thiruvalla Branch on 26.12.2009.  The loan period of the car loan was 48 months and the EMI was Rs.12,960/- per month.  At the time of availing the loan the petitioner submitted a set of signed blank cheque leaf carries 21 in all date portions.  As per the agreement the opposite party debited Rs.12,960/- in all months from her account of this bank.  According to her, 2 or 3 cheques were bounced.  She was an 8 year old customer of the opposite party.  When she want a sum of amount for her daughters marriage she re-finance her vehicle before the same bank.  The opposite party granted Rs.3,20,000/- as the re-finance loan from it.  The opposite party deducted Rs.10,000/- without stating any reason from her account.  According to the petitioner, she enquired about this fact to the opposite party’s Thiruvalla branch and its head office at Cochin several time the opposite party did not even care to redress her grievances or give any reasonable reply for any grievances.  According to her, the deduction of Rs.10,000/- from her account is against the loan agreement between the petitioner and opposite party and she is responsible only for remitting the loan amount with interest availed from the bank.  Hence she approached this Forum for returning the said amount of Rs.10,000/- with interest and other expenses incurred by the petitioner for redressing her grievances etc. from the opposite party.  The petitioner produced a copy of the loan transaction details along with her petition. 

         3. This Forum entertained her petition and issue notice to the opposite party.  The opposite party appeared before the Forum and filed a version as follows:  According to the opposite party, the complainant is a loanee of the opposite party and availed a loan for purchasing a Hyundai Verna Car.  The complainant executed a loan agreement on 26.12.2009 with the opposite party and availed a loan of Rs.4,80,000/-.  The repayment of the loan is agreed for 48 equal monthly instalment payable on or before 21^st day of every month.  The total amount of the loan amount including the interest is Rs.6,22,080/- at the time of closure.  The bank clearly explained all the terms and conditions of the loan agreement including the default clauses etc. to the petitioner.  It is true that the complainant issued posted dated cheques showing date 21^st day of every month for the said payment.  The opposite party bank duly submitted the above said cheques for encashment of every 21^st day of month.  But the said cheques were out station cheques and due to this reason delay was happened for the realization of amount.  In order to compensate the delay cost, the opposite party charged additional interest, from the complainant.  The cheques issued on 21.04.2012 and 21.08.2012 in favour of the bank were bounced due to the insufficiency of funds.  The petitioner again approached the opposite party for availing refinance loan for the same vehicle even before the closing of the prayer loan and the bank on 03.09.2013 sanctioned the re-finance loan for an amount of Rs.3,20,000/-.  Out of this new loan account the amount of Rs.48,335/- was adjusted for pre-closing her earlier loan account.  It is denied that opposite party bank has adjusted extra amount i.e. Rs.10,000/- other than the actual amount payable by the complainant.  The adjustment for an amount of Rs.48,335/- stated earlier was clearly explained to the complainant.  At the time of availing the new loan the bank officials duly intimated the complainant regarding outstanding loan amount, accumulation of additional interest and foreclosure charges in the loan account.  The bank never collected any excess amount from the complainant.  The opposite party again submitted that there is no deficiency in service involved in the subject matter and it is based upon a contract between the parties.  According to the opposite party when there is an agreement exceeding between the parties, the party who is violating the agreement has no right to get any claim with respect to the said transaction.  The allegation raised by the complainant are false and baseless and a concocted one for the purpose of this case.  The opposite party bank has acted within the stipulations of the contract entered between the parties.  The complainant who is bound to obey the terms of the agreement is now ignoring the contract agreement and raising the frivolous contentions with ulterior motive.  Therefore, there is no deficiency of service happened here and the complainant is not entitled to get any relief in this case and he prayed to dismiss the complaint with cost to the opposite party. 

         4. When considering the pleadings of both sides, the Forum raised the following points in this petition:

1. Whether the complaint is maintainable before the  

        Forum?

2. Whether the reliefs sought for is allowable or not?
3. Regarding the quantum?

        5. On the side of the complainant she filed chief affidavit in lieu of her chief examination.  Along with the chief affidavit, she produced 2 documents which is marked as Exts.A1 and A2.  Ext.A1 is the statement of account dated 03.02.2015, 02.03.2015 issued from Canara Bank, Changanassery in favour of the petitioner.  Ext.A1 having 9 pages.  The transaction between the complainant and the opposite party bank is clearly marked with green ink in all the 9 pages of Ext.A1.  Ext.A2 is the statement of account dated 15.11.2014 issued by IndusInd bank in favour of the petitioner which is marked as Ext.A2 which is having 3 pages.  The opposite party cross-examined the petitioner and marked Ext.B1 through PW1.  The petitioner’s evidence is closed and case is posted for opposite party’s evidence or for hearing.  The opposite party did not adduce any oral evidence except the version filed.  Both the parties are heard elaborately. 

         6. For the sake of convenience Point Nos.1 to 3 are considering together.

         7. Point Nos. 1 to 3:- The petition filed by the petitioner before the Forum is found as maintainable.  When we considered the pleadings of the petitioner through his complaint and the exhibits marked on the side of the complainant and peruse the version of the opposite party it is evident to see that the complainant is a permanent customer of opposite party bank and she availed loan for 2 times from the opposite party.  As per Ext.A1, it is a cogent and conclusive evidence of repayment of loan by the complainant to the opposite party bank.  It is true that 2 cheques dated 21.04.2012 and 21.08.2012 were bounced due to the inefficiency of funds.  Though these 2 cheques were bounced the opposite party bank charged the bounced charge and other expenses from the complainant.  As per Ext.A2, the statement of account of IndusInd Bank can be seen and through this Ext.A2 the description of the payment, the amount and the transaction, date can be seen.  When the opposite party cross-examined the petitioner the counsel for the opposite party put a definite and suggestive question against the petitioner.  നിങ്ങളോട് ഈടാക്കിയ 10,000/- രൂപാ loan closing charge and cheque bounce ആയപ്പോഴുള്ള തുകയും കൂടിയാണല്ലോ? (A) അല്ല.”.  When we examine the version of the opposite party and the style of cross-examination for and on behalf of the opposite party bank it is clear that the opposite party have no reasonable explanation or excuse for the realization of Rs.10,000/- from the petitioner.  We do admit that from the side of the opposite party B1 document was produced and it is marked through PW1.  The opposite party is highly relying Clause 23.0 of B1 (loan agreement).  In Clause 23 law, jurisdiction and arbitration are explained.  The substance of the Clause 23 is that if any dispute of difference occurred between the parties for redressing certain matters, the affected party would have to approach before the arbitrator under the Conciliation Act of 1996.  When considering a consumer disputes between 2 parties, even though it is between a bank and a customer, the application of the arbitration proceedings and Conciliation Act has no applicability at all.  Here the opposite party bank is miserably failed to prove the reason for realization of Rs.10,000/- from the complainant.  Even though the counsel for the opposite party cross-examined the petitioner nothing brought out to disbelieve their version.  When considering the grievance of the petitioner and in the circumstance of the case and the purposeful delay caused by the opposite party and its officials for a long time were a conclusive evidence of their deficiency in service.  It is seen from the pleading and the deposition of PW1, so many times he approached the officials but by one way or other way evade the petitioner without giving sufficient reason for the realization and shifted their responsibility to shoulder to shoulder.  We finds that it is a clear case of deficiency of service on the side of the opposite party.

         8. In the result,

1. The opposite party is directed to return Rs.10,000/- (Rupees Ten Thousand only) with an interest of 10% from date of order to the complainant. 
2. The opposite party is directed to pay an amount of Rs. 5,000/- (Rupees Five Thousand only) as compensation to the complainant with an interest of 10% from the date of order of the complaint.
3. A cost of Rs.2,000/- (Rupees Two Thousand only) is directed to pay to the complainant as cost with 10% interest from the date of order.

        Declared in the Open Forum on this the 28^th day of March, 2015.

                                                                            (Sd/-)

                                                        P. Satheesh Chandran Nair,                           

                                                                                  (President)

Smt. K.P. Padmasree (Member – I)    :    (Sd/-)

Smt. Sheela Jacob (Member – II)       :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  K. Vijayalekshmi

Exhibits marked on the side of the complainant:

A1 :  Statement of account dated 03.02.2015, 02.03.2015 issued  

        from Canara Bank, Changanassery.

A2 :  Statement of account dated 15.11.2014 issued by

        IndusInd bank.

Witness examined on the side of the opposite party: Nil

Exhibits marked on the side of the opposite party:

B1  :  Loan Agreement

                                                                                  (By Order)

                                                                                       (Sd/-)

                                                                    Senior Superintendent.

Copy to:- (1) K. Vijayalekshmi (ESX00046C), Thamarasseri Illam 

                   (Skanda), Perunna West, Changanassery.

               (2) M. Madhu (ESX00046E), Thamarasseri Illam (Skanda),

                    Perunna West, Changanassery.

               (3) Manager, IndusInd Bank, Thekkil Building,

                    Mazhuvangadu.P.O., Thiruvalla.

                (4) The Stock File.