M/s Kotak Mahindra Prime Limited, SCO 153-155, Sector 9-C, Chandigarh through its authorized signatory.
……Appellant
V e r s u s
Amba Dass resident of #208, Sector 16-A, Chandigarh.
....Respondent
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Rajneesh Malhotra, Advocate for the appellant.
Sh. H.S. Deol, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 20.9.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant (now respondent) and directed the Opposite Party as under;
“[a] To pay Rs.80,533/- claimed by the Complainant;
[b] To pay Rs.20,000/- on account of deficiency in service;
[c] To pay Rs.5500/- as cost of litigation;
12. The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 11 above, apart from cost of litigation of Rs.5500/-, from the date of institution of the present complaint i.e. 26.04.2010, till it is paid.”
2 The facts in brief are that the complainant, who is a Driver, with a view to increase his meagre income bought a Car bearing No.CH-04-B-6295, by availing of finance from the Opposite Party. A sum of Rs.5,49,560/- was sanctioned as loan, in favour of the complainant, by the Opposite Party, for the purchase of the said car, in the month of March, 2008 (in fact January 2008). An amount of Rs.5,35,120/- was paid to the complainant, whereas, the 1st installment of Rs.15,440/- was illegally deducted by the Opposite Party, even before the same became due. It was stated that the Opposite Party obtained post-dated cheques for realization of future installments. In the month of December 2008, the car of the complainant was stolen, at Delhi. An F.I.R. was duly lodged in regard thereto with the Police, and the Opposite Party too was informed about the theft of the vehicle. It was stated that the complainant requested the Opposite Party, not to present the post-dated cheques, in its possession, as the remaining amount of its loan was to be paid, from the insurance claim. The Opposite Party, however, ignored the request of the complainant, tendered the post-dated cheques with the malafide intention, and got the same dishonored. In the meantime, the insurance claim of the complainant was honoured and an amount of Rs.6,25,467/- was received by the Opposite Party in the month of May, 2009. It was further stated that after receipt of the insurance amount, the Opposite Party paid Rs.1,00,000/- to the complainant and adjusted the remaining amount, without giving any details to him. It was further stated that the Opposite Party recovered Rs.6,79,867/- from the complainant, against the loan of Rs.5,35,120/-. It was further stated that if interest @12% P.A. was calculated for a year, on Rs.5,35,120/- it came to be Rs.64,214, but against this,a sum of Rs.1,44,747/- was charged by the Opposite Party. It was further stated that, thus, the Opposite Party overcharged a sum of Rs.80,533/- on account of unreasonable interest, and other illegal charges, which were not disclosed to the complainant. The Opposite Party was many-a-time, asked to refund the amount, but to no avail. It was further stated that the aforesaid act of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party;
[a] to pay a sum of Rs.80,533/- along with interest @24% p.a. w.e.f. May, 2009, till payment against proper receipt, being the amount over charged.
[b] to Pay compensation of Rs.25,000/- for undue harassment, physical and mental agony to the Complainant, as a result of the deficiency in service on the part of the Opposite Party.
[c] to Pay Rs.5500/- towards litigation expenses;
[d] Pass any other orders or directions deemed fit and appropriate in the facts and circumstances of the case.
3 The Opposite Party, put in appearance, and filed the written version, wherein, it was pleaded that the complaint was in the nature of a suit for rendition of accounts, and the same was not suggestive of any deficiency, in service, and as such, the same was not maintainable. It was admitted that the complainant availed of a loan of Rs.5,49,560/- alongwith processing charges of Rs.3,750/-. It was stated that the amount was paid to the complainant after adjustment of amount payable as per the loan agreement, including the advance E.M.I. It was further stated that in the absence of payment of any advance E.M.I., the same was adjusted against the disbursal amount and, thus, no short amount was released to the complainant as alleged by him, in the complaint. It was further stated that the complainant availed of the loan facility in January, 2008, and the repayment of the same was made in July, 2009. It was further stated that since installments of the loan, were not received by the Opposite Party, in time, the complainant was liable to pay over-due and late payment charges, as per the terms and conditions of the agreement. It was further stated that there were no clause, in the agreement that in case of theft of the vehicle, the installments were not to be paid by the complainant. It was further stated that the complainant was bound to pay the installments, on due dates, as per the terms and conditions of the agreement. It was further stated that the payment made towards refund, after due adjustment, was duly reflected in the statement of
account. It was denied that the Opposite Party overcharged any amount from the complainant. It was denied that there was any deficiency in rendering service and indulgence into unfair trade practice, on the part of the Opposite Party. The remaining averments were denied, being wrong.
4 The Parties led evidence, in support of their case.
5 After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order.
6 Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7 We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8 The Counsel for the appellant, submitted that, no doubt, loan facility in the month of January, 2008 in the sum of Rs.5,49,560/- was availed of by the complainant, and the repayment was made in July 2009. He further submitted that since the installments, were not paid by the complainant, on time, as per the terms and conditions of the agreement, the Opposite Party was entitled to charge late payment charges, as also overdue charges. He further submitted that there was no clause, in the agreement, that in case of commission of theft of the vehicle, against which the loan was sanctioned, by the Opposite Party, to the complainant, he was not liable to pay installments on due dates. He further submitted that when the claim from the Insurance Company, in respect of stolen vehicle, which was financed by the Opposite Party, was received, the same was adjusted against the outstanding loan amount, and the balance amount was paid to the complainant. He further submitted that there were 6 overdue EMI’s of Rs.15,440/- each, which amount came to be Rs.92,640/-. He further submitted that 10 cheques, when presented by the Opposite Party, were dishonoured, and, as such, cheque dishonoured charges to the tune of Rs.5,000/- were charged. He further submitted that overdue interest came to be Rs.17,386/- and the collection charges were of Rs.463/- He further submitted that the principal amount outstanding as on 23.7.2009 when the repayment was made, was Rs.3,89,945/-. He further submitted that the prepayment interest came to be Rs.20,033/-. He further submitted that, thus, a total sum of Rs.5,25,467/-was due against the complainant, to the Opposite Party as on 23.7.2009, when insurance claim in the sum of Rs.6,25,467/- was received, and after making payment of Rs. 1.00 lac to him (complainant), the remaining amount was adjusted. He further submitted that the claim of the complainant to the effect that the amount was overcharged, was totally fallacious. He further submitted that there was no deficiency, in rendering service on the part of the Opposite Party. It was further submitted that the District Forum did not go through the statement of account submitted by the Opposite Party at pages 147 to 155 and, thus, was wrong in accepting the complaint. He further submitted that the order of the District Forum being illegal is liable to be set aside.
9 On the other hand, the Counsel for the respondent submitted that the amount of Rs.1.00 lac which became due to the complainant, after adjusting the loan amount, instead of crediting to his account was debited. He further submitted that once a request was made to the Opposite Party, that the vehicle had been stolen and the post dated cheques, already issued by
him (complainant) in favour of the Opposite Party, at the time of financing the said vehicle, should not be tendered before the bank, the Opposite Party was not required to tender the same. He further submitted that the District Forum was right in coming to the conclusion that, the complainant was overcharged by the Opposite Party. He further submitted that the District forum was right in accepting the complaint.
10 The sanction of loan, in the sum of Rs.5,49,560/- and disbursal of the same, for financing the vehicle of the complainant, by the Opposite Party, is admitted. The Opposite Party also charged processing charges to the tune of Rs.3,750/-. It is also not disputed that the loan agreement Annexure R-2, was executed between the parties, at the time of sanction and disbursal of loan. Admittedly, the complainant did not make payment of installments, on time, after the theft of his vehicle. There was no provision, in the agreement, that in case the vehicle was stolen, the complainant was not liable to make payment of the installments, towards the loan due, against him. In para No.9 of its order the District Forum recorded that a sum of Rs.4,58,511.97P was shown to be outstanding principal amount in December, 2008 as per the statement of account Annexure C-2, and as such, prepayment interest @5% on this principal outstanding amount came to be Rs.23,000/-, whereas the claim of the Opposite Party for Rs.1.00 lac against foreclosure and prepayment, was illegal. This conclusion arrived at, by the District Forum, is not supported by any evidence, on record. On the other hand, it is evident from the statement of account at page 153, that only a sum of Rs.20,033/- as prepayment interest was charged, on the principal amount outstanding, and not Rs.23,000/-. Thus, Rs.1.00 lac, were not charged as prepayment interest. On the other hand, when the statement of account at pages 147 to 155 is read as a whole, it is evident that a sum of Rs.1.00 lac as on 23.7.2009 was credited to the account of the complainant. This sum of Rs.1.00 lac was shown in column No.7 of the statements, which related to credit entry. When the statements, of account Annexures C-2, C-4 and at pages 147-155 are read conjointly, only one and one conclusion that can be arrived at, is to the effect that the amount of overdue EMIS was Rs.92,640/-, cheque dishonoured charges came to be Rs.5,000/-, overdue interest on the overdue EMIS came to be Rs.17,386/-, collection charges came to be Rs.463/-, principal outstanding as on 23.7.2009 was Rs.3,89,945/- and prepayment interest was Rs.20,033/-. These amounts have been duly reflected in the statement of account at page 153. As such on 23.7.2009 Rs.5,25,467/-(which included all the charges) were due to the Opposite Party, against the complainant. On 23.7.2009, an amount of Rs.6,25,467/- on account of insurance claim was received from the Insurance Company, against the vehicle, in question, which was stolen. After adjusting amount of Rs.5,25,467/- a sum of Rs.1.00 lac was paid to the complainant. The Opposite Party charged the amount aforesaid, as per the terms and conditions of the agreement Annexure R-2. In these circumstances, it could not be said that there was any deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party. The
District Forum was wrong in coming to the conclusion that Rs.80,533/- were overcharged by the Opposite Party, and the same were required to be refunded by it to the complainant. The findings of the District Forum, in this regard being perverse are reversed.
11 The District Forum in para No.8 of its order, came to the conclusion, that the act of presentation of cheque in the sum of Rs.61,760/- on 2.6.2009 by the Opposite Party for recovery of installments, was surely objectionable, as the Opposite Party had failed to explain towards which liability this one single payment was claimed from the complainant. In the same para, the District Forum held that mere presentation of cheque, in the sum of Rs.61,760/-, by the Opposite Party, did not amount to deficiency in rendering service. Once the District Forum, came to the conclusion, that presentation of cheque in the sum of Rs.61,760/- on 2.6.2009, in the bank, which was dishonoured, on the same day, on account of insufficient funds, did not amount to deficiency in rendering service, then how towards the end of this paragraph, it recorded a contrary conclusion, that this very act on the part of the Opposite Party, amounted to deficiency, in rendering service, is unknown. The findings of the District Forum to the effect that presentation of cheque in the sum of Rs.61,760/- on 2.6.2009, was an act of deficiency in rendering service, on the part of the Opposite Party, being perverse are reserved.
12 In Para No.5 of the complaint, it was stated by the complainant that the insurance claim of Rs.6,25,467/- in respect of the vehicle, which was stolen, was received in May 2009. However, he did not produce any document, on record, showing that this amount was received by the Opposite Party in the month of May 2009. On the other hand, in para No.5 of the written version, it was stated by the Opposite Party, that the insurance claim, in the sum of Rs.6,25,467/- was received by the Opposite Party in July, 2009. It was for the complainant to prove the factum that in the Month of May 2009, the insurance claim was received by the Opposite Party. He with a view to prove this factum could produce, on record, the affidavit of a responsible Officer, of the Insurance Company, as on which date the amount of insurance was released to the Opposite Party but he failed to do so. In these circumstances, the version set up by the Opposite Party, in its written reply, to the effect that the amount of insurance claim in the sum of Rs.6,25,467/- was received in July 2009, can be said to be correct. Had the amount of Rs.6,25,467/- in respect of insurance claim been received in the month of May 2009 then on 13 July, 2009 in the statement of account at pages 147 to 155, produced by the Opposite Party, an amount of Rs.5,09,978.18P would not have been shown as receivable from the complainant by it (Opposite Party) . It was only after receipt of the amount of insurance claim, that the Opposite Party after deducting the amount due to it, against the complainant towards loan, credited a sum of Rs.1.00 lac to the account of the complainant on 23.7.2009. This fact ,thus, clearly goes to prove that it was in the month of July 2009 that the insurance claim was received by the Opposite Party, in respect of the vehicle, in question, which was stolen. In these circumstances, whatever amount was due to the Opposite Party, against the complainant as on 23.7.2009, as indicated above, in paragraph 10 was deducted from the insurance claim, and the remaining amount was refunded to the complainant. The Opposite Party did not, in any manner, charge any extra amount from the complainant. The Opposite Party only deducted those amounts, as indicated in para No10, which were strictly, in accordance with the terms and conditions of the agreement executed between the parties. There was therefore, neither any deficiency in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.
13 No other point, was urged, by the Counsel for the appellant.
14 In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
15 For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
16 Certified copies of this order, be sent to the parties, free of charge.
17 The file be consigned to Record Room, after completion
