Judgment:
SHRI. M.K. ABDULLA SONA : MEMBER
The appellant is the complainant and respondents are opposite parties in C.C. No. 352/11 from its order dated 30.11.2011, preferred this appeal by the appellant/complainant. The appellant/complainant who filed the complaint before the Forum below and the complaint was closed by the Forum below. This appeal prefers from that impugned order before this commission. On this day this appeal came before this Commission for final hearing the appellant/complainant submitted that he was the registered owner of his Maruti Omni Car Registration No. K.L. 07/4D/8897. The first opposite party/ bank sanctioned the complaint. A Mileage Account limit up to Rs. 95,000/-
The first opposite party used to collect monthly charges from the complainant on 25.7.2009. As demanded by the opposite parties the complainant paid a sum of Rs. 7,200/- towards full and final settlement of the account. The 2nd opposite party agreed the issue of N.O.C. and Form 35 within 10 days in which they failed for their reasons. He wanted indefinitely for about 2 years but in vain. The complainant is entitled to get a N.O.C. and Form 35 so as to remove the hypothecation endorsement in the R.C. Book together with compensation of Rs. 95,000/- and costs of the proceedings. Hence the complaint.
As per the order the counsel for the respondent/opposite party submitted that they filed version before the Forum below. Version of the first opposite party filed and contended that N.O.C. and other relevant papers were handed over to the complainant on the day of first posting itself. The opposite party has made all the papers ready when they got notice from the Forum. As per the procedure after clearing the dues the customer has to submit a request letter to the bank to release N.O.C. The complainant has not suffered any mental agony, harassment on account of the acts of the bank. There is a considerable delay in filing this complaint.
The evidence consisted of the oral testimony of the complainant who examined as Pw1 and marked Ext. A1 to A5. The second opposite party did not appear before the Forum below even after receiving the notice from the Forum below. There is no oral or documentary evidence adduced by the opposite parties before the Forum below. But filed their argument notice, and argued their cases in detail before the Forum below.
The Forum below raised 2 points for determination of the dispute:
1) Whether the complainant is entitled to get N.O.C. and Form 35 of his vehicle?
2) Whether the opposite parties are liable to pay compensation of Rs. 95,000/-and cost of the proceeding to the complainant?
The Forum below answered the first point that the first opposite party handed over the N.O.C. and Form 35 of the vehicle to the complainant immediately after the receipt of the notice of the complainant and Forum below found that in the circumstances there arises no cause for the complaint itself and another point discussed and answered that : as per the Ext. A5 Agreement the opposite parties agreed to issue the NOC and Form 35 within 30 days from the date of execution. Further he contented that he had to run from pillar to post to get his grievances redressed. The first opposite party contended that the complainant failed to make request that the first opposite party to issue N.O.C. and Form 35 within 30 days from the date of execution of the agreement. The Forum admitted that they did not appreciate the contention of the first opposite party that the complainant who have issued a letter of the opposite party to issue the documents in continuation of Ext. A5 Agreement dated 25.7.2009, especially since such clause is not there in the agreement however the first opposite party forthwith issued the necessary documents as and when they received notice from the Forum appreciably so. Though the N.O.C. and Form 35 were to be issued within 10 days as agreed for reasons not before the Forum below was not done. However the complainant did not raised any issue on account of the same approaching the Forum till the law does not favour late comer. Then the Forum below passed the impugned order.
We heard in detail both parties and perused the entire evidence adduced by both parties. There is no evidence from the part of the first and second opposite parties. The second opposite party did not appear before the Forum below. By hearing both sides, we are seen that the Forum below is having an impression that the remedy was availed by the complainant for the reason that the Forum below issued the notice on complaint filed by the complainant. The Forum below had taken another view that by handed over the form 35 and N.O.C. to the complainant after received the notice of the complainant by the first opposite party even there is no scope for the complaint. The very same time the Forum admitted that there is no clause in the Ext. A5 Agreement executed between the parties that for issue of Form 35 and N.O.C. a written request from the part of the complainant is necessary. Hearing the first opposite party who given the Form 35 and the N.O.C. of the vehicle to the complaint after the receipt of the notice from the Forum below. We are also happy that the remedy was availed by the complainant only due to the notice issued by the Forum below on complaint which filed by the complainant. But that is one of the grievances of the complainant. The complainant was having a strong case that he knocked the door steps of the opposite party/ Bank from Ernakulam to Chennai and Chennai to Ernakulam ever somany times. He did not availed any single pai as loan from the opposite party. But the only reason for that held the Form 35 and N.O.C. of the vehicle of the complainant is that the opposite party/bank merely sanction the mileage loan to the complainant who is a retired senior prosecuting law officer of the Central Beuro of Investigations and a senior citizen and he is suffering from so many serious illnesses. He kept his vehicle in his custody for a very long time in the absence of the Form 35 and N.O.C is very serious. It is not fair to do any such harassment to a consumer from the part of any business concern. How the Forum below is simply saying that the complainant received the Form 35 and N.O.C of the vehicle even after filed the complaint is more and enough under head of deficiency in service and unfair trade practice. From the submission of the counsel for the respondent/opposite party we are seeing that the complainant did not filed any written request for the vehicle documents and it is necessary for handover the same to the complainant. The counsel argued that unless receive such a letter from the consumer/complainant the opposite party is not legally bound to handover the Form 35 and N.O.C. But we are seeing that as per Ext. A5 agreement, no where stated such clause. The counsel for the appellant stated that they did not file any version before the Forum below. But the counsel for the respondent /opposite parties submitted that they filed written version before the Forum below. It was admitted by the Forum below also in their order. But we are seeing that this version filed by the counsel for the first opposite party and not by the opposite party. How the counsel for the opposite parties are signing and filing written statement and version directly. We think it is not fair from the part of the members of the learned profession. Suppose it is necessary to examine the party in box authors of such written statement version were counsels it will put ever somany legal problems. But we are seeing that there is no compensation asked by the complainant in the complaint. The counsel for the appellant submitted that the sufferings such as mental agony and other loss and damages sustained by the complainant is given in the proof affidavit in detail. There is no cross examination conducted by O.P. on that proof affidavit. We are seeing that there is no necessary to put very elaborated pleadings and prayers in the complaint which is filing before the Forum below which established as per the provisions of the Consumer Protection Act. It is par from a Civil court.
By considering the fact, circumstances and evidence of this case we are seeing that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is not legally sustainable. In this circumstance we decided to interfere in the impugned order passed by the Forum below. It is not legally sustainable. We have a hesitation to accept the finding of the Forum in toto. The complainant paid every travel to the office of the O.P. and also suffered so much mental strain for approaching to the office of the opposite parties and to file the complaint. He spent huge money for the above attempts. As per the Consumer Protection Act no consumer can file a complaint on free of charge. He must be paid complaint fee and other legal expenses for institute and conduct a complaint. The Forum below ignored this crucial point.
In the result this appeal is allowed in part and also allowed the complaint in part. There is sufficient evidence to prove that there is a deficiency in service and unfair trade practice from the part of the appellant /opposite parties. They are liable to pay compensation under this heads. The complainant is a senior citizen who was harassed too much by the opposite party/ bank. We directed the opposite parties to pay Rs. 25,000/- to the complainant as a compensation under the head of deficiency in service within 30 days after the receipt of the copy of the judgment. If failure the complainant is entitled to get 12% interest P.A. on that account. The points of the appeal discussed one by one and answered accordingly. No cost ordered.