State Consumer Disputes Redressal Commission
The Branch Manager, Mahindra Finance vs Gurinder Singh on 9 March, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 02 of 2016 Date of Institution : 01.01.2016 Date of Decision : 09.03.2016 1. The Branch Manager, Mahindra Finance, SCO 2447-2448, 1st Floor, Sector 22-C, Chandigarh - 160022 through Sh. Jai Narayan, Litigation Officer (Legal). 2. The Branch Manager, Mahindra & Mahindra Financial Services Limited, 4th Floor, SCO 33-34-35, Sector 34-C, Chandigarh - 160036. 3. The Manager (Head Office), Mahindra Finance, Chopra Tower First Floor, Derabassi, Ambala - Chandigarh Road, Near LIC Building, Gholu Majra Patiala, Derabassi TLK Zirakpur - 140506 Punjab. 4. Rohit Tanwar, Agent, Emp. No. 23110691, C/o Mahindra Finance, Chopra Tower First Floor, Derabassi, Ambala - Chandigarh Road, Near LIC Building, Gholu Majra Patiala, Derabassi TLK Zirakpur - 140506 Punjab. ....Appellants/Opposite Parties. Versus Gurinder Singh son of Sh. Randhir Singh, resident of House No.108, HB No.31 Kharar M CL Punjab Ropar Kharar M CL TLK 172001. .....Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. Nitin Thatai, Advocate for the appellants.
Sh. Arshdeep Singh Arora, Advocate for the respondent.
PER DEV RAJ, MEMBER This appeal has been filed by the Opposite Parties (now appellants), against the order dated 16.11.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum'), vide which, consumer complaint bearing No.258 of 2015 was allowed and the Opposite Parties were, jointly and severally, directed as under:-
"8. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, directed to:-
[a] To issue 'No Objection Certificate' against the loan taken by the Complainant;
[b] To pay Rs.25,000/- as compensation for mental agony & harassment suffered by the complainant;
[c] To pay Rs.10,000/- as costs of litigation.
9. The above said order be complied with by the Opposite Parties, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No.[b] above shall carry interest @12% per annum from the date of filing of the present Complaint, till actual payment, besides complying with the directions at Sr. Nos. [a] and [c] above."
2. The facts in brief are that the complainant had obtained a vehicle loan of Rs.4.00 lac from Opposite Party No.1 in Nov. 2011, for purchase of car i.e. Maruti Swift VDI Reg. No.CH01 AL 3500, Model Engine No.D13A1738706 and Chassis No.MA3FHEB1S00166842. It was stated that the complainant entered into an Agreement with the Opposite Parties vide Contract No.1810298 and as per terms and conditions of the said Agreement, the amount of loan was to be repaid in equal monthly installments, which the complainant duly paid. It was further stated that at the instance of Opposite Party No.4 that he would collect the installments from his house, the complainant kept on paying the monthly installments from his house only, for which, receipts were issued by Opposite Party No.4. It was further stated that in order to maintain his track record, the complainant never failed to make any of the payment, and also did not delay the same. It was further stated that the complainant paid Rs.27,040/- on 16.01.2015 vide receipt (Annexure C-1), whereupon he was told that now only Rs.12,620/- was to be paid by him, after which, he would get the NOC. It was further stated that subsequently, the aforesaid Agent did not come for collection in the month of February and on 03.03.2015, the complainant called him up and paid the last payment of Rs.12,620/- vide receipt (Annexure C-2). It was further stated that thereafter, the complainant kept on calling the said Agent for issuance of the NOC, but he lingered on the matter on one pretext or the other. It was further stated that to the utter surprise of the complainant, the Opposite Parties issued a back dated legal notice of 17.02.2015 (Annexure C-3), calling upon him to pay Rs.12,620/- as outstanding amount and also Rs.36,175/- as penalty for non-payment of Rs.12,620/-. It was further stated that the complainant approached the Opposite Parties, and also showed the payment receipts, but to no avail. It was further stated that reply dated 26.03.2015 to the legal notice was also sent (Annexure C-4), but there was no response from the Opposite Parties. It was further stated that eventually, the complainant got served a legal notice dated 26.03.2015 (Annexure C-5) upon the Opposite Parties, but no action thereupon was taken. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
3. 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, seeking directions to the Opposite Parties to issue NOC against the loan taken by the complainant; pay Rs.1,00,000/- as compensation for mental agony and harassment and Rs.20,000/- as litigation charges.
4. The Opposite Parties, in their joint written statement, while admitting the factual matrix of the case pleaded that although the complainant paid the installments, but the same were not regularly paid, as per terms & conditions of the Agreement bearing No.1810298 executed with him. It was further stated that as such, the complainant was liable to pay the due charges as per sub-clause (c) of Clause 2 of the aforesaid Agreement and could not escape his liability to pay the due amount. It was further stated that Opposite Party No.4 regularly visited the house of the complainant for collecting the installments before or on the day of due installment, which fell due on 15th of every month, but he refused to give the installment to Opposite Party No.4 on one pretext or the other. It was further stated that even otherwise, it was the duty of the complainant to pay installments, regularly, on due dates, but he failed to pay the same, as a result whereof, he was supposed to pay the delayed charges as per sub-clause (c) of Clause 2 of the Agreement. It was further stated that a sum of Rs.24,183/- was due against the complainant as on 15.01.2015 towards AFC/Late Payment Charges. It was further stated that the complainant was to pay last due installment on 16.10.2014, but he paid the same on 03.03.2015 i.e. after a gap of 06 months, on which date, a sum of Rs.24,756/- was due against him towards AFC/Late Payment Charges as well as a sum of Rs.2,000/- towards Cheque returning charges for 04 times @Rs.500/- each. It was further stated that the complainant could not wriggle out of the terms and conditions of the Agreement, which was signed by him after going through the contents thereof. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant filed replication wherein he reiterated all the averments contained in the complaint and repudiated those as contained in the written statement of the Opposite Parties.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the Forum, allowed the complaint, vide the impugned order, as stated above.
8. Feeling aggrieved, the Opposite Parties have filed the instant appeal.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellants/Opposite Parties submitted that a sum of Rs.24,756/- was due against the respondent/complainant but the Forum erred in allowing the complaint. It was further submitted that vide notice dated 17.02.2015, the respondent was informed that he defaulted in making payment of Rs.12,620/- and as per terms of loan agreement, in case of delay in payment of periodical installment, a late charge of 3% per month, on the amount overdue, was payable by the complainant.
11. On the other hand, the Counsel for the respondent/ complainant submitted that the respondent neither defaulted in making payment of installments nor did he delay the same. He further submitted that letter dated 17.2.2015 was ante-date and the same was received on 18.3.2015 after 3.3.2015 when outstanding payment stood made and nothing remained due. He further submitted that the order passed by the Forum is just and fair and the appeal is liable to be dismissed.
12. Perusal of record reveals that complainant obtained loan of Rs.4,00,000/- from the appellants/Opposite Parties on 16.11.2011 and the same was repayable in monthly installments by 15.11.2014. It is noted from statement of account ( Exhibit D-2 at Page 52 to 56 of the Forum's file), that AFC due amount is shown Rs.24,756/- despite the fact that against the due amount of Rs.4,86,720/-, the amount received is also Rs.4,86,720/-. Nothing is on record that the appellants ever issued any notice, except notice dated 17.02.2015 qua delay in payment of instalments. Further perusal of Customer Receipt (Annexure C-2) reveals that an amount of Rs.12,620/- only was due against the respondent, which he paid on 03.03.2015. In the written statement, it has been stated by the appellants that the respondent was to pay last due installment on 16.10.2014, which he paid on 03.03.2015 i.e. after a gap of six months, on account of which, a sum of Rs.24,756/- towards AFC/late payment charges and a sum of Rs.2,000/- towards cheque returning charges for four times @Rs.500/- each, was due. It may be stated here that in case, the respondent defaulted in making payment of installment due on 16.10.2014, the appellants ought to have issued notice to the respondent but the same was apparently not done. Further no evidence in support of their contention that Rs.2,000/- towards cheque returning charges were payable by the respondent, has been brought on record. Nothing is mentioned in this regard in the notice date 17.02.2015 (Annexure C-3). When as per Annexure C-2, outstanding amount due i.e. Rs.12,620/- was paid on 03.03.2015, nothing remained due. As such, the notice sent vide Annexure C-3 is not sustainable and is clearly afterthought. The contention of the Counsel for the respondent that letter dated 17.02.2015 was written by the appellants after 03.03.2015 when payment was made, seems to be correct from contents of receipt issued by appellants (Annexure C-2). Had letter dated 17.02.2015 been issued on 17.02.2015 itself, due amount on 03.03.2015, as per Annexure C-2, would not have been Rs.12,620/- but would have been the amount indicated in the notice.
13. Even if it is assumed for the sake of argument, that payment of Rs.12,620/- (paid by the respondent on 03.03.2015) was outstanding against the respondent, by no stretch of imagination, even by imposing 3% per month interest/charge, due amount could be Rs.36,175/- (as mentioned in the notice). This is nearly 300% of the due amount of Rs.12,620/- (stood paid on 3.3.2015), which by all means, amounts to unfair trade practice. Therefore, the contention of the appellant that an amount of Rs.24,756/- was due against the respondent is not sustainable being devoid of merit. Whatever amount was due, that stood paid by the respondent on 03.03.2015. The appellants were, thus, deficient in rendering service by not issuing 'No Objection Certificate' to the respondent despite his making the due payment on 03.03.2015.
14. At the time of admission hearing, the appellants had confined argument qua grant of compensation and litigation expenses only. In the facts and circumstances of the case, we are of the opinion that compensation granted by the Forum in the sum of Rs.25,000/- for mental agony and harassment suffered by the respondent, is somewhat on the higher side. The same, if reduced to Rs.15,000/-, would meet the ends of justice. The litigation expenses of Rs.10,000/- are just and adequate. Thus, the impugned order needs to be modified to the extent indicated above.
15. No other point was urged by the Counsel for the parties.
16. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The impugned order passed by the Forum is modified. The appellants/Opposite Parties are now, jointly and severally directed as under:-
to issue 'No Objection Certificate' against the loan taken by the respondent/complainant, within a period of 30 days from the date of receipt of a certified copy of the order;
to pay an amount of Rs.15,000/- to the respondent/complainant as compensation for causing mental agony and harassment, instead of Rs.25,000/-, within a period of 30 days from the date of receipt of a certified copy of the order, failing which, the said amount of Rs.15,000/- shall carry interest @12% per annum from the date of filing the complaint till actual payment;
to pay an amount of Rs.10,000/- to the respondent/complainant as litigation expenses as awarded by the Forum.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced March 9th, 2016.
Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad