State Consumer Disputes Redressal Commission
The Area Manager,Lic Housing Finance ... vs S.Sethuramanathan,Tirunelveli. on 20 July, 2017
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BEFORE THE CIRCUIT BENCH OF STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
MADURAI-625020, TAMILNADU.
Present: Thiru.K.BASKARAN, Presiding Judicial Member
Thiru.S.M.MURUGESSHAN, Member
F.A.Nos.160/2013 & 112/2014
(Against the order in C.C.No.158/2012, dated 21.05.2013 on the file of DCDRF,
Tirunelveli)
THE 20th DAY OF JULY 2017.
F.A.No.160/2013
The Area Manager,
LIC Housing Finance Ltd.,
67, Grace Complex 2nd Floor,
South Bye-Pass Road,
Tirunelveli. Appellant/Opposite Party
-Vs-
S. Sethuramanathan,
S/o. Subbaiah,
5/89, Pillaiyar Koil Street,
Melapuththeneri,
Palayamkottai Taluk,
Tirunelveli - 627 351. Respondent/Complainant
Counsel for Appellant/Opposite Party : Thiru.G.R. Sukumaran, Advocate.
Counsel for Respondent/Complainant: Thiru.P. Pethurajesh, Advocate.
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F.A.No.112/2014
S. Sethuramanathan,
S/o. Subbaiah,
5/89, Pillaiyar Koil Street,
Melapuththeneri,
Palayamkottai Taluk,
Tirunelveli - 627 351. Appellant/Complainant
-Vs-
The Area Manager,
LIC Housing Finance Ltd.,
67, Grace Complex 2nd Floor,
South Bye-Pass Road,
Tirunelveli. Respondent/Opposite Party
Counsel for Appellant /Complainant : Thiru.P. Pethurajesh, Advocate.
Counsel for Respondent /Opposite Party: Thiru.G.R. Sukumaran, Advocate.
These two appeals coming before us for final hearing on 10.07.2017 and on
hearing the arguments of both sides and upon perusing the material records, this
Commission made the following;-
(Since these two appeals arise out of one and the same order of the District
Forum, Trinelveli passed in C.C.No.158/2012, dated 21.05.2013, one appeal filed by the
opposite party and other appeal filed by the complainant, this Commission has decided
to pass a common order.)
ORDER
THIRU. K.BASKARAN, PRESIDING JUDICIAL MEMBER.
1. The factual matrix giving rise to these appeals is follows;- For the sake of brevity and clarity we shall refer the parties as they were arrayed before the learned District Forum.
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2. The complainant in C.C.No.158/2012 is the appellant and the opposite party is the respondent in F.A.No.112/2014 and similarly the opposite party and the complainant in the said C.C.No.158/2012 are the appellant and respondent respectively in F.A.No.160/2013.
3. The complainant had filed a complaint before the learned District Forum claiming compensation of Rs.14,93,000/- with 18% interest towards loss caused to the complainant by the opposite party and further sum of Rs.5,00,000/- as compensation for mental agony and sufferings undergone by the complainant besides cost on the ground of deficiency in service and unfair trade practice on the part of the opposite party alleging, inter alia, that the complainant had availed house building loan of Rs.3,40,000/- from the opposite party vide loan account No.460011488 by executing loan documents and depositing three original documents of title with the opposite party; that the complainant had repaid the entire outstanding loan of Rs.43,358.69 P together with other charges on 24.11.2009 and when the complainant requested the opposite party to return the original documents of title deeds deposited with the opposite party, they had informed that all those documents were at Madurai Office and the same would be handed over within a short time to the complainant; that when the complainant wanted to sell the said property, the prospective buyer wanted no objection certificate from the opposite party and hence the complainant again approached the opposite party on 16.04.2016 for return of the said documents to which the opposite party had assured to give the no objection certificate and return the said documents soon and on insistence by the complainant, the opposite party had given 4 assurance in writing on 22.04.2010 and based on the undertaking given by the opposite party the complainant had entered into an agreement of sale with the prospective buyer one Mr. Mahendran on 25.04.2010 and received an advance of Rs.5,60,000/- as part of sale consideration after fixing the full sale consideration at Rs.15,86,000/- ; that in spite of repeated demands made by the complainant to the opposite party for the return of the original title deeds, the opposite party did not return the same and hence the complainant lodged a complaint with the Commissioner of Police, Tirunelveli against the opposite party on 30.06.2010 and thereafter the opposite party had also made a complaint before the Sub-Inspector of Police, Palayamkottai on 30.02.2010 alleging that the said documents were lost during the transit on 01.09.2006 and based on which the Police had issued a non-traceable certificate ; the prospective buyer Thiru. Mahendran sent a lawyer notice on 26.10.2011 to the complainant calling upon him to pay compensation of Rs. 7,84,000/- for the failure on the part of the complainant in executing the sale deed and the said proposed buyer had also given a petition before the Tirunelveli Legal Services Authority which had held an enquiry with the parties and at the enquiry a compromise was reached between the complainant and the proposed buyer Thiru.Mahendran by and under which it was agreed that the complainant should pay a sum of Rs.8,79.572/- to the proposed buyer Mr. Mahendran which would include the part sale consideration of Rs.5,60,000/- and interest for the same and the penalty for the failure to perform his duty and accordingly the complainant had paid Rs.8,79,572/- to the proposed buyer and the sale agreement was cancelled on 10.11.2011, at last. The opposite party had issued a letter dated 05.05.2011 informing 5 the complainant to receive a certified copy of missing documents; that as the original documents of title were lost the purchasers were willing to pay only Rs.7,00,000/- to purchase the property which resulted in great monetary loss and mental agony to the complainant inasmuch the same property would fetch more than Rs.18,00,000/-,if original deeds were available. Hence, the complainant had calculated his loss as Rs.14,93,000/- which he had prayed before the District Forum to award as compensation and another sum of Rs.5,00,000/- as additional compensation besides directing the opposite party to return the three title deeds.
4. The following is the gist of the written version filed by the opposite party;-
All the allegations made in the complaint are false and they were made with an ulterior motive to extract money from the opposite party. It is true that the complainant availed loan from the opposite party by depositing three original title deeds and had repaid the entire loan amount; that three title deeds were lost irrecoverably at the time of shifting of the office of the opposite party from one building to another building in the month of September 2006 and immediately thereafter the opposite party had informed the complainant of such missing of documents and promised him to provide registration copy of the said title deeds which was agreed to by the complainant; that the opposite party had taken all steps to trace the missing of documents but all in vain; that they had lodged a complaint with the police and also effected paper publication and the police had issued a non-traceable certificate on 23.09.2010 and hence the opposite party had sent a letter to the complainant along 6 with the not- traceable certificate issued by the Police and also certified copy of the lost documents; that the complainant was aware of the factum of missing of those documents during the month of December 2009 itself and as such the complaint is barred by limitation as per section 24 (A) of the Consumer Protection Act, 1986 and hence with a view to save the limitation, the complainant had falsely given the date of knowledge and that there was no deficiency in service on the part of the opposite party as alleged in the complaint and in spite of best diligence taken by the opposite party, the documents were lost and hence the complainant is not entitled to get any compensation as prayed for in the complaint.
5. Based on the pleadings of the respective parties, the learned District Forum had framed the following points for consideration.
(1) Whether there is any deficiency in service on the part of the opposite party and if so, (2) To what relief, the complainant is entitled?
6. The learned District Forum by way of answering point No.1, recorded its findings that the opposite party had committed deficiency in service by not returning the original documents produced by the complainant at the time of availing loan even after repayment of the entire loan amount. Consequently, the learned District Forum had directed the opposite party to get the certified copies of the documents which were lost, at their cost, and to furnish the same to the complainant along with an affidavit that the opposite party had lost the original documents at their end and also to pay a sum of Rs.75,000/- as compensation for the mental agony and sufferings caused to the 7 complainant and also to pay Rs.5000/- as cost of the proceedings within two months from the date of the order.
7. Aggrieved by the impugned order, the opposite party has come forward with the appeal in F.A.No.160/2013 and the complainant had preferred F.A.No.112/2014 aggrieved over the inadequacy of relief.
8. The following are the common points for consideration in these two appeals.
1) Whether the complaint is barred by limitation?
2) Whether there was any deficiency in service on the part of the opposite party?
3) If the answer to point No.2 is in the affirmative what relief the complainant is entitled to?
9 Point Nos. 1 & 2:- The following points are not in dispute
(a) that the complainant Thiru.Sethuramanathan, had availed house building loan from the opposite party by executing loan document and also depositing three title deeds in original in the year 2002 and that the complainant had repaid and discharged the entire loan amount on 24.11.2009 itself.
(b) that after discharging the loan, the complainant had requested the opposite party which is an institution of Government of India undertaking to return the three original documents of title deposited at the time of availing of loan;
(c ) that the complainant wanted to sell the property to the third party and for which he had entered into an agreement of sale with one Mahendran for a total sale 8 consideration of Rs.15,86,000/- after receiving an advance amount of Rs.5,60,000/- on 25.04.2010 pursuant to the letter written by the opposite party dated 22.04.2010 to the effect that the complainant had repaid the entire loan amount and that the three documents of title in original would be returned to the complainant as soon as they were traced out. The complainant had in the said agreement agreed to produce the said three documents of title deeds to the proposed buyer Thiru. Mahendran within a period of 10 months and failing which he had to pay compensation to the said buyer at the rate of 20% on the advance amount received together with 24% interest on the said amount.
(d) The opposite party could not trace the missing documents and hence they had sent lawyer notice dated 29.04.2010 under Ex B4 to the complainant and thereafter vide Ex A21 they had sent a letter to the complainant on 05.05.2011 stating that the said documents were lost unfortunately and all their best diligence in tracing them had ended in vain and hence they had made paper publication regarding the missing of documents in a daily and had also lodged a complaint with the concerned Police and along with said letter they had sent sub registrar's office certified copies of lost documents and the paper publication and the not-traceable certificate issued by the concerned Police.
(e) That the prospective buyer Thiru. Mahendran had issued lawyer's notice dated 28.12.2010 to the complainant subsequently and thereafter another lawyer notice dated 26.2.2011 was issued by the said Mahendran calling upon the complainant to pay Rs.7,84,000/- to him for the failure on the part of the complainant in performing 9 his part of the contract under Ex A22. The said buyer had also approached the Tirunelveli District Legal Service Authority by way of complaint and the said Authority had issued summons to the complainant and the proposed buyer under Ex A24.
(f) the deed of cancellation of sale agreement dated 10.11.2011 was executed between the complainant and the prospective buyer by and under which the complainant had agreed to pay Rs.8,79,572/- representing Rs.5,60,000/- received by the complainant as part of consideration and Rs.27,572/- as interest for the said amount and Rs.1,12,000/- being penalty at 20% part of consideration paid.
8. Regarding the limitation, the learned District Forum had held that the complainant came to know of the fact that those three documents deposited by him with the opposite party were lost and could not be traced, only on 05.05.2011 under Ex A21 and hence this is the date of accrual of cause of action for the complaint and as such the complaint could be filed within two years from the said date and in this case the complaint was filed on 27.07.12 and hence the complaint has been filed in time.
9. In this connection, the learned counsel appearing for the opposite party would contend that the complaint was barred by limitation in as much as the complainant came to know of missing of title deeds even in the month of December 2009. Per contra, the learned counsel for the complainant would submit that it was only on 24.09.2010 the complainant came to know that the opposite party had lost of the original documents deposited by the complainant while availing the loan and hence the date of accrual of cause of action was only on 24/09/2010 and hence the complaint filed on 27.07.2012 is well within the period of limitation.
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10. We are of the opinion that the contention of the learned counsel for the complainant alone appears to be correct in the light of the pleadings and documents filed in this case. A perusal of complaint would show that in spite of several reminders by way of request to the opposite party for the return of original title deeds deposited by the complainant with the opposite party they did not inform the complainant that those documents were lost in transit and could not be traced until 24.09.2010 on which date the opposite party had issued an advocate notice to the complainant informing him of the fact stated supra. There is no document whatsoever available in this case to come to the conclusion that even prior to that date, the complainant was informed by the opposite party that the documents were lost and they could not be traced out and hence the complainant would be furnished with certified copies of the same along with "non-traceable certificate" issued by the Police and hence we hold as has been rightly held by the learned District Forum, that the complaint in this case is well within the period of limitation and the point No.1 is answered in the affirmative.
11. Point No.2:- Regarding the deficiency in service alleged against the opposite party the learned District Forum has clearly held that the negligence exhibited by the opposite party in missing of original title documents deposited by the complainant would certainly amount to deficiency in service in the light of the pleadings and evidence available in this case and hence has concluded that the opposite party is guilty of deficiency in service vis-a-vis the complainant.
12. In this regard, the learned counsel appearing for the opposite party would contend that there was no negligence amounting to deficiency in service on the part of 11 the opposite party for the reason that they had taken all possible measures to trace out the missing documents which were lost when the office of the opposite party was shifted from one building to another building in the same town and in spite of best diligence exhibited by the opposite party, unfortunately the unforeseen incident of documents missing had happened and in any event the opposite party had made good the loss of said documents by supplying certified copies of the same to the complainant along with a " non-traceable certificate " issued by the Police and hence it cannot be said that the complainant had suffered any loss due to the missing of original title documents and further no negligence could be attributed to the opposite party as the missing of documents was beyond the control of the opposite party. Per contra, the learned counsel for the complainant would simply contend that even based on the admitted facts, the deficiency in service will writ large on the face of the opposite party. We find much force and substance in the argument advanced by the learned counsel for the complainant because admittedly the complainant had repaid the entire loan amount along with foreclosure charges on 24.11.2009 itself. Admittedly, after discharging the entire loan amount, the complainant requested the opposite party to return the original documents of title deposited with the opposite party to which the opposite party gave reply in writing under Ex A9 to the effect that the documents deposited at the time of availing loan would be returned to the complainant as soon as they were traced out, this reply was dated 22.04.2010 which was given only nearly after 5 months of repayment of the entire loan amount by the complainant and even in this reply under Ex A9 they had not stated that the documents of title deeds were lost 12 during the transit when the office of the opposite party was shifted from one building to another building. Thereafter, it was only on 24.09.2010 namely 5 months thereafter the opposite party chose to send a lawyer notice to the complainant informing that the documents were lost during shifting of the office and they could not be traced out and 7 months thereafter the opposite party sent another letter on 05.05.2011 under Ex A21 to the complainant informing him of the loss of those documents and that they were furnishing certified copies of the documents lost together with non-traceable certified issued by the Police.
13. The written version is silent as to who was responsible for the loss of those valuable original documents of title and what disciplinary action or any other action was initiated against the official responsible for such loss of documents. The fact remains that three valuable original documents deposited by the complainant with the opposite party at the time of availing of loan were lost. In the absence of any plausible explanation put forth by the opposite party we are left with no other option except to hold that the opposite party has committed deficiency in service as the opposite party being an institution of Government of India, are supposed to keep the valuable documents deposited with them by the customers in safe custody and utmost care and caution should have been taken in the matter of keeping them in its safe custody. Unfortunately, nothing of such sort had happened in this case and the valuable original documents of title which were deposited by the poor customer were lost and it clearly amounts to deficiency in service as has been rightly held by the learned District Forum and we do not find any reason or ground to interfere with its findings. Hence, we hold 13 that there was deficiency in service on the part of the opposite party and this point is answered affirmatively.
14. Point No.3:- Having found that the opposite party had committed deficiency in service as against the complainant, the learned District Forum had awarded a lump sum of Rs.75,000/- as compensation for mental agony and sufferings meted out to the complainant in addition to the cost of Rs.5000/- and directed the opposite parry to return the certified copies of the documents lost. As noticed already, the complainant who had sought for compensation of Rs.14, 93,000/- in addition to a sum of Rs.5,00,000/- as compensation was not satisfied with the quantum of relief granted and hence preferred an appeal in F.A.No.112/2014. The learned counsel for the complainant/appellant in F.A.No.112/2014 would submit that the learned District Forum having concluded that there was deficiency in service on the part of the opposite party should have discussed the loss suffered by the complainant due to the negligence on the part of the opposite party and without undertaking any such discussion and without any reason to reduce the compensation asked for has awarded a lump sum compensation of Rs.75,000/- in addition to cost of Rs.5000/-.
15. A joint reading of the complaint allegations, written version and the evidence let in this case would make it clear that the learned District Forum has not discussed the issue of relief that could be awarded to the complainant and when the complainant had prayed for compensation of Rs.14,93,000/- plus additional compensation of Rs.5,00,000/-, the learned District Forum has not recorded any reason for reducing the amount of compensation to just Rs.75,000/-. The complainant has in clear and 14 categorical terms pleaded and proved that due to financial constraints he was forced to sell the building for which he availed loan from the opposite party and for the purpose of selling the same he was in need of original documents of title which were deposited with the opposite party and hence the complainant had approached the opposite party to return the original documents so that he could sell the property and from out of sale proceeds he could discharge the entire loan amount and when the same was not agreed by the opposite party, the complainant was forced to foreclose the loan amount and enter into an agreement to sell with a prospective buyer; when the complainant approached the opposite party to issue no objection certificate and to return the original documents for the purpose of enabling the complainant to enter into sale agreement, the opposite party had issued a letter under Ex A9 to the effect that the complainant had repaid the entire amount and that the original documents of title deposited with the opposite party would be returned to the complainant after they were traced out and pursuant to the letter of undertaking by the opposite parry, it appears, that the complainant had entered into an agreement of sale under Ex 10 on 25.04.2010 with one Mahendran fixing the sale consideration at Rs.15,80,000/- and receiving an advance of Rs.5,60,000/- undertaking to execute the sale deed within 10 months and in default agreed to return the advance amount of Rs.5,60,000/- with 24% interest per annum and the penalty at the rate of 20% on the advance amount received. Further it can be seen that the complainant could not perform his part of contract under Ex A10 for the reason that the opposite party had not returned the original document of title to the complainant and hence the sale agreement under Ex 15 A10 could not be concluded which in turn resulted in the said agreement being cancelled after the matter was referred to Tirunelveli District Legal Service Authority as evidenced by Exhibit A24 and hence the complainant and his proposed buyer Thiru.Mahendran had executed sale agreement cancellation deed on 10.11.2011 by and under which the complainant had returned Rs.5,60,000/- together with 20% interest for the same. From the evidence, it can be seen that the complainant had paid Rs.3,19,572/- over and above the advance amount received by him. In addition, it is pleaded that the complainant would suffer heavy loss whenever he wanted to sell the property in the absence of original title deeds. Further it is pleaded that the negligence on the part of the opposite party had resulted in mental agony to the complainant and in all the complainant had prayed for a compensation of Rs.14,93,000/- for the mental agony suffered by him and further sum of Rs.5,00,000/-as compensation for the negligence on the part of the opposite party which caused mental agony to the complainant and he had prayed for a direction to the opposite party to return the original documents.
16. It is shown that the complainant had paid Rs.3,19,572/- in excess towards interest and penalty to the proposed buyer on the ground that the complainant could not perform his part of contract and hence it can be held that due to deficiency in service committed by the opposite party a monetary loss to the tune of Rs.3,19,572/- had occurred to the complainant. Of course, the complainant suffered mental agony and that could be seen from the complainant's averments and the evidence let in by the complainant and the various letters written by the complainant to the opposite party for 16 the return of the documents so as to complete the execution of sale deed and it can be seen from the pleadings and evidence that the complainant had to pay interest to the third party money-lenders which he wanted to discharge after disposing of the said property which could not be accomplished due to deficiency in service on the part of the opposite party. Hence, we have no doubt in holding that the act of the opposite party resulted in heavy monetary loss as quantified and great mental agony caused to the complainant.
17. We are of the further opinion that the award of compensation of Rs.3,19,572/- towards compensation for monetary loss suffered by the complainant plus Rs.50,000/- as compensation towards mental agony suffered by the complainant would meet the ends of justice.
18. In the result,
1) F.A.No.160/2013 is dismissed without costs subject to the order passed by this Commission in F.A.No.112/2014.
2) F.A.No.112/2014 is partly allowed and the order of the learned District Forum is modified as follows;- The opposite party shall pay compensation of Rs.3,19,572/- to the complainant for the monetary loss suffered and Rs.50,000/- as compensation for mental agony suffered within three months from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per 17 annum from the date of order of the learned District Forum till realization. The respondent/opposite party shall pay cost of Rs.10,000/- in this appeal to the appellant /complainant.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxx
S.M.MURUGESSHAN, K.BASKARAN,
MEMBER PRESIDING JUDICIAL MEMBER
INDEX: YES / NO
TCM/Mdu Bench/Orders-July 2017