BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 149/2011 Filed on 07.05.2011

ORDER DATED: 15.10.2015

Complainant:

Sini Mole. C, W/o Shibu. K, Charuvila Thekkeputhenveedu, Thrippilazhikam, Kareepra, Kollam-695 581.

                                 (By Adv. S. Reghukumar)

Opposite parties:

1. Tata Motors Finance Ltd., Cyber Tech House, 1^st Floor, Plot No. B-63/65, Road No. 21/24, J.B. Sawant Marg, Wagle Estate, Thane-400 604.

2. Tata Motors Finance Ltd., Ground Floor, T.C. No. 23/429, Lakshmi Buildings, Vanross Road, Thiruvananthapuram-695 001.

                               (By Adv. N.U. Nampoothiri)

This C.C having been heard on 23.07.2015, the Forum on 15.10.2015 delivered the following:

ORDER

SMT. R. SATHI:  MEMBER

The complainant purchased Tata Pick Up 207 van from Tata showroom viz Focuz Motors at Kollam.  At that time the staff at the showroom informed the complainant that a sister concern of Tata viz Tata Motors Finance Ltd. will provide finance to the vehicle and in that case the formalities are very easy.  He assured that opposite parties will charge the interest at 6.8% per annum at flat rate and will not fasten the complainant with any hidden charges other than the equitable monthly installment fixed at the time of loan agreement.  The complainant and husband agreed to avail the loan from the opposite parties.  On 13.04.2007 an invoice was raised by the Focuz Motors for an amount of Rs. 3,77,297.16 and the said invoice was forwarded by the Focuz Motors to the 2^nd opposite party and 2^nd opposite party directed the complainant to pay an amount of Rs. 58,297.16 as down payment to the Focuz Motors.  For the balance amount of Rs. 3,19,000/- the opposite parties agreed to give finance within 2 days after completing the formalities.  After 2 days the complainant’s husband approached the 2^nd opposite party and the 2^nd opposite party directed the complainant’s husband to produce 48 cheque leaves filled in with monthly installments as the total installments are fixed at 48 months i.e; 4 years.  Further it was also said that the complainant’s husband should be the guarantor.  He informed the 2^nd opposite party that he is having only 45 cheque leaves.  The 2^nd opposite party informed the complainant’s husband to come over to the office on the next day with the available cheque leaves.  On 17.04.2007 the complainant and her husband reached 2^nd opposite party’s office and asked about the monthly installments.  But the 2^nd opposite party’s staff informed that they cannot inform the amount as sanction is required due to the non-availability of 3 cheque leaves.  The loan agreement was finalized as the principal amount is Rs. 3,19,000/-, finance charges 1,02,658/- and insurance is Rs. 24,000/- and the total amount of Rs. 4,45,658/- is repayable in 45 equated monthly installments.  The first installment is Rs. 10,058/- and balance 44 installments as Rs. 9,900/- each.  The first installment is liable to be paid on 11.05.2007 and the subsequent installments on 11^th day of each succeeding calendar month.  The copy of loan sanctioning letter dated 01.05.2007 along with the repayment schedule was received by the complainant by registered post.  The first cheque towards first installment encashed and from the 2^nd installment onwards the opposite parties started to present the cheque much before the 11^th day of every calendar month and this was continued till November 2008.  Hence the cheques for the month of June 2007, October 2007, November 2007 and March 2008 were returned uncleared due to insufficiency of funds.  Later the complainant cleared the dues by remitting the installments in cash.  With respect of dishonor of cheque of March 2008, the opposite parties filed criminal complaint and was withdrawn as the amount was remitted in cash.  On April 2010 the complainant received a letter from the opposite parties for the payment of retainer charges and when he protested the opposite parties stated that it was a mistake.  On request of the complainant opposite parties started to present the cheque on 11^th every month for December 2008.  The cheques in the month of August and September 2010 returned.  The dues are cleared subsequently by remitting the same in cash.  The complainant had remitted all the 45 installments by January 2011 as agreed.  Then the complainant and her husband approached the 2^nd opposite party and requested for no objection certificate, immediately 2^nd opposite party verified the accounts and replied that an amount of Rs. 41,771.51 is due from the complainant on account of retainer charges, late fee and legal charges.  The opposite parties committed deficiency in service and unfair trade practice by presenting the cheques in advance by filling up the same with dates much earlier than the date agreed.  Hence the complainant approached this Forum to direct the opposite parties to issue NOC to have over the duplicate key,  Rs. 50,000/- as compensation and Rs. 10,000/- towards cost of the proceedings. 

The opposite parties accepted notice and entered appearance.  They filed version jointly.  In the version opposite parties stated that the complainant as a borrower and Mr. Shibu. K as a guarantor entered into a loan cum hypothecation cum guarantee agreement dated 13.04.2007 for Rs. 3,19,000/-.  The complainant has undertaken to pay periodical installments @ Rs. 10,058/- for first month installment and thereafter Rs. 9,900/- per month for rest 44 installments from 11.05.2007 to 11.01.2011.  The complainant has also agreed to pay finance charges of Rs. 1,02,658/- and Rs. 24,000/- towards insurance.  It is submitted that the total of 10 cheques have been dishonoured due to insufficient funds and opposite parties have charged Rs. 200/- per dishonor amounting to a total of Rs. 2,000/-.  As per the receipt information of the opposite parties, the complainant had paid a total sum of Rs. 4,56,187/- as on 29.07.2011.  It is further stated that an accrued overdue installment of Rs. 18,354.60, an overdue charges of Rs. 21,125.39 and outstanding expenses of Rs. 2,700/- totaling to an amount of Rs. 42,179.99 is due.  The contention of the complainant to issue the NOC without making full payment of the outstanding dues is against the terms and conditions of agreement and there cannot be any question of deficiency in service on the part of these opposite parties. 

The husband of the complainant filed proof affidavit who is authorized by the complainant as per Ext. P1.  Exts. P1 to P6 documents are marked.  Opposite parties filed affidavit and Exts. D1 to D8 marked. 

Issues:-

1. Whether the complainant is entitled for the reliefs as sought for/
2. Whether there is any deficiency of service or unfair trade practice on opposite parties’ side?

Issues (i) & (ii):- The case of the complainant is that she purchased a Tata Pick up van financed by the opposite parties.   The equitable monthly installments also fixed at the loan agreement and the 2^nd opposite party directed to pay Rs. 58,297.16 to the Focuz Motors as down payment.  The balance amount of Rs. 3,19,000/- plus finance charges of Rs. 1,02,658/- and insurance of Rs. 24,000/-is to be paid in 45 monthly installments as per Ext. P2.  According to the complainant the first installment is Rs. 10,058/- to be paid on 11.05.2007 and balance 44 installments at Rs. 9,900/- each on 11^th day of each succeeding calendar month.  The complainant gave 45 cheque leaves of her husband.  But the opposite parties stated that the complainant is a chronic defaulter and has defaulted in repayments within the prescribed time.  The opposite parties stated that the complainant defaulted many of the installments and has made part payments in many others.  The complainant stated that the opposite parties presented the cheque before the date mentioned in the agreement i.e; before 11^th of each month and that is the reason for non-encashment.  The opposite parties stated that they charged Rs. 200/- per dishonor amounting to a total of Rs. 2,000/-.  The complainant stated that in the month of August and September 2010 the cheques were returned unpaid due to paucity of funds.  The said circumstances occurred as in the month of August 2010 not only the monthly installment is to be remitted but also the insurance premium.  The said dues were cleared subsequently by remitting the same in cash as per Ext. P6 dated 16.09.2010.  The complainant also admits that she cleared some dues as per Ext. P4 series.  The dates seen in Ext. P4 series is 31.10.2008, 29.10.2007 and 27.12.2007.  This shows that there is some delay in payments.  So on going through the evidence we can only accept Ext. D8 produced by opposite parties which is marked without objection.  In that statement balance is Rs. 18,354.60.  Even if the complainant is not obliged to pay the charges she is bound to pay the balance amount of Rs. 18,354.60.  So we can only accept this statement and direct the complainant to pay the said amount and direct the opposite parties to accept the amount and to issue NOC for releasing the hypothecation and to hand over the duplicate key. 

In the result, complaint is partly allowed directing the complainant to remit the balance amount of Rs. 18,354.60 within one month of receipt of this order and the opposite parties are directed to accept the amount and to issue NOC for releasing hypothecation and to hand over duplicate key within two weeks from the date of remittance.  The opposite parties are also liable to pay costs of Rs. 5,000/- to the complainant for this proceedings within the above said two weeks, failing which complainant is at liberty to go for further proceedings as per law.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2015.

       Sd/-

R. SATHI                      : MEMBER

      Sd/-

P. SUDHIR                    : PRESIDENT

      Sd/-

                                                                        LIJU B. NAIR                : MEMBER

jb

C.C. No. 149/2011

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Authorization letter dated 03.02.2012.

P2     - Loan sanctioning letter dated 01.05.2007 along with repayment

            schedule issued by TML Financial Services Ltd.

P3     - Bank statement of Mr. Shibu. K.V dated 08.02.2011.

P4(series)- Copy of receipts dated 31.10.2008, 29.10.2007 and 27.12.2007

             issued by 2^nd O.P.

P5     - Copy of letter dated 10.05.2010.

P6     - Receipt dated 16.09.2010 issued by 2^nd opposite party.

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

          D1     - Copy of repayment details dated 21.01.2014 issued by 2^nd O.P.

D2     - Copy of details of rejected receipt dated 21.01.2014 issued by 2^nd OP

D3     - Copy of expense details dated 21.01.2014 issued by 2^nd O.P.

D4     - Copy of loan agreement No. 5000091518 dated 13.04.2007.

D5     - Copy of cardex 1 (contract details) dated 21.01.2014.

D6     - Copy of repayment schedule dated 21.01.2014 issued by 2^nd O.P.

D7     - Copy of receipt information dated 21.01.2014 issued by 2^nd O.P.

D8     - Copy of Simulated Normal Termination as on 21.01.2014 issued by

            2^nd opposite party.

                                                                                                      Sd/-

PRESIDENT

jb