ORDER As per Hon'ble Shri S.c. Vyas, President: 1. This appeal is directed against order dated 05.1 0.07, passed by District Consumer Disputes Redressal Forum, Dhamtari (hereinafter called "District Forum" for short) in complaint case No.05/06, whereby the appellant has been directed to pay Rs.60,776/- and cost of litigation Rs.l,000/- to the respondent 1 complainant. For convenience hereinafter the respondent will be referred as complainant and appellant as OP. 2. Briefly, stated facts of the complaint before District Forum was that on 22.11,03 the complainant purchased a Bolero vehicle for which finance of Rs.3,50,0001- was provided by the OP. An agreement was executed between the parties in respect of that finance and repayment schedule was prepared as agreed between the parties. That vehicle was stolen on 16.08.05. Timely report was 10dged in the police station and claim was preferred before insurance company. The insurance company directed the complainant to produce No Objection Certificate from the financer. Later on, the insurance company paid RsJ,03,612/to the insured, out of which Rs.2,52,826/- was the pre-closure amount and Rs.50,776/- was the amount of Additional Finance Charges (AFC) by way of penalty for non-payment of installment in time. It was averred by complainant in the complaint that no amount of Additional Finance Charges was payable, as the vehicle was already stolen. It has also been averred that finance company has committed deficiency in service in not providing No Objection Certificate, when demanded by the complainant. Unnecessary penalty has been imposed by the finance company. With all these grievances, the complaint was filed before District Forum, after giving due notice to the finance company by registered post. 3. The OP finance company, in its written version, has resisted the claim of the complainant by saying that dispute between the complainant and the OP is dispute of hire purchaser and financer and in respect of breach of contract. Such disputes are not trial able by the Consumer Fora as a full dress trial is required and not a summary proceeding. It has also been averred that the insurance company has not been made a party in the case. It has been averred that whatever amount has been recovered by the OP are as per terms of the agreement. Such disputes are not trial able by the Consumer Fora as a full dress trial is required and not a summary proceeding. It has also been averred that the insurance company has not been made a party in the case. It has been averred that whatever amount has been recovered by the OP are as per terms of the agreement. The complainant was always a defaulter, which can be termed as chronic defaulter, he defaulted in each and every EMI and thereby become liable to pay AFC i.e. Additional Finance Charges as per terms of the agreement. The agreement was in force till the payment was received from the insurance company and therefore, no excess amount has been recovered by the OP. 4. Learned District Forum has considered the material placed before it and come to the conclusion that the appellant/OP has committed deficiency in service and has unnecessarily charged AFC, even after the theft of the vehicle. With these findings, order of refund of AFC has been passed. 5. The only question for consideration in this appeal is, whether the order passed by District Forum suffered from any infirmity? 6. Learned counsel for the appellant submitted that the agreement executed between the parties, empowers the finance company to charge AFC by way of penalty, when default committed by the complainant. In this regard he has drawn attention of this Commission towards Loan Agreement. Clause 2 (b) of the Loan Agreement reads as under:"2. The Borrower agrees that so long as the Loan shall continue the Borrower shall: (a) ........... (b) Pay the Lender, without prejudice to the right of the Lender, on a demand made by the Lender, as late Charge an amount equal to 3% (three percent) per month of the amount that has remained outstanding beyond due date till payment shall be payable by the Borrower to the Lender, the late charge being calculated from the date the periodical installment was due and payable till the date of payment." Learned counsel submitted that because of this clause in the agreement, the amount of additional finance, by way of penalty was payable by the Borrower. He submitted that in each and every correspondence with the complainant, this amount was referred. 7. He submitted that in each and every correspondence with the complainant, this amount was referred. 7. There cannot be any dispute regarding payment of AFC by way of penalty in case of default, but the rate of penalty @ 3% per month appears to be much excessive, particularly when it was informed by the Borrower to the financer that the vehicle had already been stolen and claim has been preferred before insurance company. This indicates that from 16.08.05, when the incident of theft of the vehicle took place, the complainant was not using the vehicle, which was financed. The vehicle was under hire purchase agreement and in case when the vehicle which was provided on the basis of hire purchase agreement, has been seized or not in possession of borrower, then we do not think that any amount by I way of penalty, is payable even thereafter and in spite of the fact that the complainant was not using the vehicle, which was provided on hire purchase, and was being stolen. Reasoning of learned District Forum appears right that AFC is not payable after theft of the vehicle and the finance company has charged AFC even thereafter and thereby has committed deficiency in service. 8. Learned counsel for the appellant has also drawn attention of this Commission towards statement of account of the respondent, produced before District Forum and submitted that the an10unt which has been received from the insurance company was recoverable from the respondent 1 complainant. Fresh copy of such statement has also been filed before this Commission. This copy shows that settlement of pre-closure amount has been shown as Rs.2,52,836/- on 11.05.06 and Rs.50,776/- have been deposited as additional interest charges. This indicates that the amount which has been shown as Additional Interest Charges, was not the amount of pre-closure and this amount was charged as Additional Interest for default in payment of EM I, during the period, when the vehicle was not in possession of the complainant. In the record of the District Forum, one more statement of account of the complainant is available as Annexure OP-5, this statement shows that Rs.l,93,419/- were deposited by the complainant during the period of finance itself out of which Rs.6,0001- were deposited as AFC and Rs.l,87, 119/- as EMI upto 01.08.05. After deducting it from the finance amount, including penalty, Rs.2,51 ,831/- have been shown as balance amount. After deducting it from the finance amount, including penalty, Rs.2,51 ,831/- have been shown as balance amount. Learned District Forum has considered this amount and found that as, against it, Rs.2,52,826/- have been deposited by the insurance company as pre-closure settlement amount. It shows that an10unt of penalty till the date, when the vehicle was not in possession of the complainant had already been charged and then balance was calculated on that date, thereafter no penalty is permissible, when the vehicle was not in possession of the complainant and if the financer has charged some an10unt by way of penalty and have received it from the insurance company, then such additional amount, being not payable, was to be refunded to the complainant. 9. Learned District Forum has rightly ordered refund of this amount to the complainant. We do not find any infirn1ity in that order and so confirming the same, dismiss this appeal with cost. Appeal Dismissed.