State Consumer Disputes Redressal Commission
Tarsem Lal Sharma vs Kotak Mohindra Primus Limited on 27 July, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.545 of 2007.
Date of Institution: 16.04.2007.
Date of Decision: 27.07.2012.
Tarsem Lal Sharma S/o Sh. Manohar Lal, Resident of House No.25, Muktsar
Road, near Kohli Tent House, Mandi Guru Harsahai, District Ferozepur.
.....Appellant.
Versus
1. Kotak Mohindra Primus Limited through its Branch Manager, SCO
No.120, VIth Floor, Feroze Gandhi Market, Ferozepur Road, Ludhiana.
2. Jassi Associates, BDO Market, Malwal Road, Ferozepur City, Tehsil
and District Ferozepur, through its Manager/Proprietor.
...Respondents.
First Appeal against the order dated
12.03.2007 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:- None for the appellant.
Ms Zemini Tiwari, Advocate, proxy for Sh. Rajneesh Malhotra, Advocate, counsel for respondent no.1.
Respondent no.2 Exparte.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Tarsem Lal Sharma, appellant (In short "the appellant") has filed this appeal against the order dated 12.03.2007 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, making averments that he purchased a car make Tata Indica bearing Engine No.475ID01MVZPF0003, Chassis No.600141AUZP First Appeal No. 545 of 2007 2 00351, Temporary RC No.PB-10-AX-3856 and Registration Certificate No.PB-60-A-8800 on 30.03.2005 and got it financed from the respondents and Rs.8600/- were paid per installment. The respondents obtained 60 signed blank cheques of every installment from the appellant with the promise to return the same after making the entire payment. No copy of the agreement was given to the appellant inspite of various demands and requests to the respondents.
3. The appellant kept on paying the installments regularly but on 18.10.2005, the car in question met with an accident within the jurisdiction of P.S. Dabwali, District Sirsa and FIR No.308 dated 18.01.2005 u/s 379/304- A/337/427 IPC was registered at P.S. Dabwali. In this accident, one lady died and the car in question was totally damaged and the appellant also received injuries. The business of the appellant was totally closed and he was unable to make the payment of the installments to the respondent. Even he could not maintain his family.
4. The appellant approached the Oriental Insurance Company, demanding the insured amount regarding the car in question and the insurance company after inquiring into the matter, paid Rs.1,94,500/-to respondent no.1 Kotak Mohindra vide cheque no.41683 dated 05.02.2007. The detail of the amount paid through installments to the respondents as well as the interest and excess amount received by the respondents is as follows:-
Sr. Installments Details Amount (in No. Rs.)
1. Installment paid 15 x 8600 from March, 2005 to May, Rs.1,29,000/- 2006
2. Insurance amount received by respondent no.1 Rs.1,94,500/-
through cheque no.41683 dated 05.02.2007
3. Loan amount taken (Payable in 59 reducing interest Rs.2,91,400/-
rate installments)
4. Interest payable from March, 05 to 05.02.2007 when Rs.25,000/-
the cheque was taken by the respondents
Total amount Payable Rs.3,16,400/-
First Appeal No. 545 of 2007 3
5. Excess amount received by respondent no.1 Rs.3,23,500/-
-(minus)
Rs.3,16,400/-
=Rs.7100/-
5. Before receiving the payment of the amount of Rs.1,94,500/- vide the above cheque, the appellant tried to make the part payment of the installments to the respondents, but the respondents demanded the total amount with interest and penalty which the appellant was not in a position to pay. The appellant also received two illegal notices dated 07.09.2006 and 28.11.2006 and the same are liable to be withdrawn, as there is no loan amount due against the appellant of the finance company.
6. The appellant approached and requested the respondents a number of times to supply the copies of the agreement as well as the statement of accounts, but the respondents kept on putting off the appellant on one pretext or the other and ultimately, refused to supply the same. The act of the respondents amounts to deficiency in service and unfair trade practice and the appellant suffered mental agony and harassment.
7. It was prayed that the respondents be directed to return the blank signed cheques of the paid installments and to refund the excess amount received and issue No Due Certificate and to pay Rs.50,000/- as compensation and Rs.5500/- as litigation expenses.
8. In the written reply filed on behalf of respondent no.1, preliminary objections were taken that the District Forum has got no territorial jurisdiction. The appellant has intentionally made respondent no.2 as party but in the entire complaint, has not disclosed any cause of action against respondent no.2. The loan agreement was executed at Ludhiana and the vehicle was also financed at Ludhiana. The repayment of the installments was also made through cheques at Ludhiana and the District Forum at Ferozepur has no jurisdiction. The complaint is not maintainable as the appellant is using the vehicle in question for commercial purpose i.e. as a private taxi. The present complaint has been filed without any cause of action First Appeal No. 545 of 2007 4 and with a motive to avoid the payment of loan and to pressurize the respondents not to initiate any criminal proceedings for the bouncing of the cheques, u/s 138 of the Negotiable Instruments Act. The appellant has filed the amended complaint without the order of the District Forum and has amended the complaint with regard to the payment of insurance claim and has demanded No Due Certificate, whereas the appellant is still under debt of Rs.64,073.79 as on 21.02.2007 after adjusting the amount of Rs.1,94,500/-. Copy of the agreement was supplied and the appellant was knowing that he has to pay for the copy of the agreement and the copy of the statement and complaint is liable to be dismissed.
9. On merits, it was admitted that the car in question was got financed by the appellant from the answering respondent. It was also admitted that the appellant issued cheques for Rs.8600/- each for the payment of installments of loan. The answering respondent supplied the copy of the agreement to the appellant after completion of finance formalities. The appellant is using the car in question as taxi and in FIR No.308 dated 18.10.2005, it is nowhere mentioned that the appellant was driving the car in question. The most of the cheques issued by the appellant for repayment of the loan have been returned by his banker 'unpaid' and he is defaulter of the bank. Statement of accounts reveals that the appellant is still under debt of the respondent for Rs.64,073,99 upto 20.02.2007. The appellant himself admitted that he was not in a position to pay the installments and there was no question to accept the part payment. Other allegations were denied and similar pleas as raised in the preliminary objections were repeated and it was prayed that the complaint may be dismissed with special costs of Rs.10,000/-.
10. Respondent no.2 did not contest the complaint before the District Forum and was proceeded against exparte.
11. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents.
First Appeal No. 545 of 2007 5
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that as per agreement dated 29.03.2005, the finance amount was Rs.2,91,400/- which was to be repaid in 59 monthly installments and the last payment was to be made on or before 1st March, 2010. After amendment of the complaint, new statement of account has been filed which also includes penal interest on delayed payment of installments and collection charges on receivable basis. This statement is to be relied upon and as per this detail, a sum of Rs.64,073/- is still outstanding against the appellant. The calculation of the debit and credit balance amount in the compliant filed by the appellant is not based upon the finance agreement and is not reliable, and dismissed the complaint.
13. Aggrieved by the impugned order dated 12.03.2007, the appellant has come up in appeal.
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for respondent no.1.
15. Neither counsel for the appellant nor anybody else appeared on behalf of the appellant at the time of arguments.
16. It was contended by the counsel for the respondent no.1 that as per the statement of accounts of respondent no.1, after adjusting the entire amount, a sum of Rs.64,073.79 is still outstanding against the appellant. The appellant admittedly did not pay the installments in time and he is also required to pay the penal interest on the delayed payment of the installments as per the agreement. The calculations made by respondent no.1 are as per the agreement, whereas the appellant has not added any penalty for delayed payments. The amount paid by the insurance company was adjusted towards the payment of installments and the order of the District Forum is legal and valid and the appeal is liable to be dismissed.
First Appeal No. 545 of 2007 6
17. We have considered the submissions advanced by the learned counsel for the respondent and have minutely scrutinized the entire record and material placed on the file.
18. Admittedly, the appellant got financed his car from respondent no.1 for Rs.2,91,400/- and entered into an agreement dated 29th March, 2005. The entire loan amount was to be paid in 59 installments of Rs.8600/- each and the first installment was to start from 01.05.2005 and the last installment was to be paid by 1st March, 2010. This is as per the accounts copy of respondent no.1 dated 21st February, 2007. Respondent no.1 has also placed on file the statement of account. Both these documents i.e. the accounts copy and the statement of accounts which are dated 21st February, 2007 are contradictory. As per the accounts copy, the total receivable/payable amount as on 21st February, 2007 was Rs.1,65,241-60, whereas as per the statement of account which is only upto 9th February, 2007, the balance amount was Rs.1,00,212-81. In both the statements of accounts, there is no mention of the insurance amount received by respondent no.1 through cheque no.41683 dated 05.02.2007 to the tune of Rs.1,94,500/-. The written statement filed by respondent no.1 is also vague and does not give the detail of the amount received, but only mentions that even after adjusting the amount of Rs.1,94,500/-, there was a debt of Rs.64,073-79 upto 21.02.2007. As per statement of account on 1st February, 2007, the balance amount was Rs.93,332-19 and as per accounts copy, the total balance amount receivable/payable was Rs.1,65,241-60 as on 21st February, 2007. Both the accounts do not tally and contradict each other. Even presuming that total recoverable amount as on 21st February, 2007 was Rs.1,65,241-60 and out of this, total prepayment receipts of Rs.1,01,167-81 has been adjusted, but in both the account statements, there is no mention of the receipt of the insurance amount of Rs.194,500/- vide cheque bearing no.41683 dated 05.02.2007. As per copy of statement of accounts, the entire amount should have been adjusted on 05.02.2007 or after a day or two after encashing of the First Appeal No. 545 of 2007 7 above cheque for Rs.1,94,500/-, but still the calculations were made upto 21st February, 2007/9th February, 2007. The accounts copy and the statement of accounts produced by the respondent no.1 are not, at all, reliable and after adjusting the amount of cheque, the amount payable comes to be more, but the appellant in his amended complaint has calculated the amount paid through installments and the amount received by respondent no.1 through cheque and has also added interest from March, 2005 to 05.02.2007 and the total amount payable comes to Rs.3,16,000/-, whereas the amount received by respondent no.1 is Rs.3,23,500/- and excess amount paid by the appellant, as per the appellant, is Rs.7100/-, but as per the accounts copy and statement of accounts, it is much more than that. The District Forum has blindly and without any logic or reasoning has accepted the details given in the accounts copy which is in total contradiction with the statement of accounts produced by respondent no.1 itself. The order of the District Forum is based on conjectures and surmises and on the accounts copy which is not, at all, reliable. Therefore, the impugned order is not sustainable and is liable to be set aside.
19. In view of above discussion, the appeal filed by the appellant is accepted and the impugned order under appeal dated 12.03.2007 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/complainant is allowed the respondent no.1 is directed to return the blank signed cheques as well as the amount of Rs.7100/- received in excess from the appellant and to issue No Due Certificate and to supply the copy of the agreement as well as the complete statement of accounts. The appellant has been harassed unnecessarily and despite the payment of the entire amount, respondent no.1 did not adjust the entire amount correctly and the appellant was forced to come to the District Forum and then to the Commission. Therefore, respondent no.1 is also directed to pay Rs.50,000/- (Rupees Fifty Thousand) as compensation and Rs.5000/- (Rupees Five Thousand) as litigation expenses to the appellant.
First Appeal No. 545 of 2007 8
20. Compliance of this order shall be made by respondent no.1 within 45 days of the receipt of copy of the order.
21. The arguments in this appeal were heard on 19.07.2012 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member July 27, 2012.
(Gurmeet S)