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Thread: ICICI Bank

  1. #16
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    Quorum: Shri Jagdish Prabhudesai, President Shri Aremmy G. O. Fernandes, Member
    Smt. Kala P. Dalal, Member


    Complaint No. 04/2004

    Shri Grenville Pereira,
    R/o. House No. 69,
    Castello Vaddo, Nagoa,
    Verna, Salcette Goa ….. Complainant

    V/s

    ICICI Bank Ltd.,
    Through its Collection Manager/ Authorised Representative,
    405/406, Fourth Floor, Shiv Towers,
    Patto Plaza, Panaji Goa ….. Opposite Party


    Advocate Shri Avdhut S. Arsekar for the Complainant
    Advocate Shri Ajit R. Kantak for the O.P.

    Dated: 30/03/2009


    O R D E R
    (Per Shri Aremmy G. O. Fernandes- Member)

    By this Order we dispose of the Complaint dated 12.01.2004 filed by the Complainant herein against the Opposite Party(OP) herein under Section 12 of the Consumer Protection Act, 1986.

    Brief facts of the case are:
    I.The Complainant is a businessman and owner of a petrol pump known as Pereira Auto Centre at Nagoa, Verna Goa. He obtained a loan of Rs. 2,72,000/- from ICICI Bank for the purchase of car, repayable in 36 installments from July 2000 till May 2003. Towards repayment he gave thirty five post dated cheques payable every month.

    II.The Complainant has alleged that even though he was sanctioned Rs. 2,72,000/-, in reality the first instalment of Rs.9240/- towards repayment was taken from him at the time of disbursement itself and hence the actual amount advanced to him was only Rs 2,62,760/- .

    III.He has also alleged that on 24.10.2003 without giving any intimation as to overdues if any in the loan account the OP forcibly took possession of his vehicle and sent him a recall notice terminating the loan agreement and demanding payment of Rs. 42,770/- within seven days from receipt of the notice. The notice dated 13.10.2003 was allegedly posted on 23.10.2003 as per postal stamp thereon and received by the Complainant on 25.10.2003.

    IV.The Complainant sent the amount demanded by DD through Regd A/D on 01.11.2003 and simultaneously sought return of his vehicle. But instead of getting the car back the Complainant received another notice from the OP a Presale Notice dated 01.11.2003 demanding payment of Rs. 48,712.65 and also threatening the Complainant that failure to effect the payment will entitle the OP to dispose of the asset to the best quote received by them. The OP however failed, refused and neglected to give the workout of the calculations made in their notices The Complainant therefore contends that he is not entitled to pay the Rs. 48,712.65 or even the Rs. 42,770/- demanded by the OP.

    V.It is also the contention of the Complainant that the seizure of his vehicle is illegal, and the demands made by the OP are attempts to cheat and exercise extortion by illegally keeping the car of the Complainant in their possession. He also accused the OP of retaining his signed cheques with ulterior motive and also alleged that the OP kept the car exposed to sun and whether due to which there is possibility of corrosion and depreciation in its value. The Complainant has also submitted that non submission of accounts by the OP amounted to imperfect services.

    VI.The Complainant issued legal notice to OP on 07.11.2003 demanding back his vehicle and also demanding damages and compensation. But the OP neither released the vehicle nor issued the statement of accounts.

    VII.Due to aforesaid acts of OP the Complainant had to suffer damages, mental torture, inconvenience anxiety harassment etc. and spend around Rs. 10,000/- on his medical treatment. He also suffered loss of reputation for which he has sought compensation of Rs. 80,000/-. The vehicle when seized was allegedly in perfect working condition and the Complainant claims its value at that time as Rs. 2,25,000/-. The Complainant has further submitted that being a businessman he had to travel from Verna to Margao everyday for his business assignments and in the absence of his vehicle he was compelled to hire a taxi spending Rs. 600/- per day from 24.10.2003. The hiring charges of the taxi are said to be Rs. 48,000/- upto 12.01.2004. He has accordingly prayed for directions to OP to:

    a)Hand over the seized Car bearing Registration No. GA-02-J-4614 or in the alternative to pay Rs, 2,25,000/- being cost of the car along with interest.
    b)To pay a sum of Rs. 1,38,600/-towards hiring charges, medical treatment, damage to reputation etc.
    c)To allow cost of this complaint and
    d) Any other relief deemed fit and proper

    On issuance of summons the OP filed their written version on the following amongst other grounds:

    A)That the amount of loan sanctioned was a matter of records and they are relying on the loan agreement executed by the Complainant in this regard. The post dated cheques they claim were encashable on due dates every month and the Complainant was bound to maintain adequate balance to honour them but the time and again defaulted in maintaining sufficient balance due which cheques were dishonored and notices were sent by them to the Complainant under Section 138 of Negotiable Instruments Act .
    B)That the Complainant who had issued the cheques was well aware of the dates when the cheques would be presented and hence there arose no question of the OP informing the Complainant of the loan amount not being cleared or of the instalments remaining due.

    C)That even though the loan was to be cleared in May 2003, there were substantial outstandings even as of October 2003. They further stated that once the vehicle is seized there are certain further amounts/charges payable which the Complainant is bound to pay including repossession charges payable to the repossession agency, valuation charges and godown charges.

    D)The OP denied the seizure was illegal and further submitted that it was in terms of the clauses of the agreement specifically agreed upon. They also denied there was any attempt to cheat or exercise extortion.

    E)On the issue of signed cheques the OP submitted that it was open to the Complainant to have approached the OP and collect the cheques. Even otherwise it is their contention that they had all the rights to retain the cheques of the Complainant till their entire loan out standings were cleared

    F)The OP denied the averments of the Complainant as to sickness, reputation and hire charges.

    G)The OP submitted that it was open to the Complainant to have visited the Office of the OP and obtain necessary information as far as the statement of accounts is concerned, that there was no question of them releasing the vehicle unless the Complainant clears the outstanding amount, that the Complainant has made untrue allegations as regards the parking of his car, and that there is no deficiency-in-service on their part and hence no question of compensating the Complainant. It is also their case that there is no cause of action to file this complaint.


    The Complainant filed his Affidavit-in-evidence dated 16.06.2004 followed by written arguments dated 24.06.2005. The OP also filed their Affidavit-in-evidence dated 12.07.2004 but failed to file their written arguments inspite of opportunities.

    Now on perusal of the records we proceed to record our observations and findings as would appear hereinafter:

    1.There is no dispute between the parties as to the fact that the Complainant was sanctioned a loan of Rs. 2,72,000/- by the OP for purchase of the car. However as regards disbursement of the loan the Complainant has alleged that even though he was sanctioned a loan of Rs. 2,72,000/- in reality only Rs. 2,62,760/- was disbursed as the OP took from him the first instalment of Rs 9240/- towards repayment of the loan at the time of disbursement itself.. The net loan disbursed was therefore only Rs. 2,62,760/-. The OP has not denied this but it is their contention that this is as per terms of sanction and as agreed between them. Irrespective of this we are of the opinion that the Complainant is stopped from raising this issue at this stage on account of limitation. The Complainant was aware of the above facts on the day of disbursal of the loan on 25.05.2000 and therefore if he was aggrieved in any manner with the action of the OP he should have filed his Complaint in this regard on or before 24.05.2002. The issue raised at this stage in the present complaint filed on 12.01.2004 is therefore found to be time barred and hence not maintainable.

    2.The Complainant has also alleged that the OP seized the vehicle without informing him the overdue position in his loan account. This is not denied by OP. But it is their case that the Complainant defaulted time and again to maintain sufficient balance in his account to honour the cheques issued by him towards repayment and therefore cheques were returned back dishonoured. The OP has also insisted that notices under Sec 138 of Negotiable Instruments Act were sent to the Complainant. Though no documentary evidence of the notices sent is furnished by the OP yet we accept this submission as the Complainant himself has submitted “ In case the cheque was not cleared by the banker of the Complainant the Opposite Party used to send the necessary intimation to the Complainant about return of the cheque and the Complainant used to clear the same immediately ” It appears from this submission that sending notices for return of the cheques was a general practice of the bank and hence we have no reason to doubt the same was not followed by them at all times and specially when the cheques of the Complainant were returned dishonoured. It is hence our observation that the Complainant was aware of the cheques returned by his bankers and consequently to what extent the loan was overdue and therefore no further intimation in this regard was necessary to be given by the OP. Resultantly we do not agree with the submission of the Complainant that prior to taking possession of the car neither the OP nor any representative of the OP informed the Complainant that the instalments are still due and payable to the OP.

    3.The other pertinent allegation is concerning the release of the car wherein it is submitted by the Complainant that he paid the Rs. 42,770/- demanded by the OP but the OP still did not release his vehicle. In this connection we perused the recall notice as also the Demand Draft copy and the Regd. AD receipt. It is true that the OP demanded the said Rs. 42,770/- and the same was paid by the Complainant by DD through Regd AD on 01.11.2003. The OP also has acknowledged receipt of the demand draft and have further admitted that by their subsequent presale notice dated 01.11.2003 they demanded further amount from the Complainant.. Now the recall notice (first notice) categorically reveals that the OP has terminated the loan agreement. If so, then we are of opinion that the Complainant cannot be bound by any stipulations of the erstwhile agreement that is now redundant. We therefore find it hard to understand how or under which terms the OP could have demanded additional amount from the Complainant by their subsequent presale notice. The OP also have not clarified as to which terms entitled them to this additional amount from the Complainant. It is the OPs case that the Complainant has to bear the repossession and other charges in this connection. But we disagree with the OP herein. Without any agreement between the parties the Complainant cannot be saddled with any charges including the said repossession or other expenses claimed by the OP. The Complainant has paid the full amount as per the initial recall notice and subjecting him to any additional liability without any justifiable reason (since the agreement stands terminated) and not releasing the vehicle after receiving the full amount demanded are in our opinion deficiencies under the Consumer Protection Act 1986 and to that extent we hold the OP guilty of the said deficiencies under the Act.

    4.It is also the contention of the Complainant that he is not liable to pay the amounts of Rs.48,712.65 or Rs. 42,770/- demanded by the OP. As per para…………… above we have already held that demanding any amounts over and above Rs. 42,770/- is not justified. Hence we agree with the Complainant that he is not liable to pay the amount of Rs. 48,712.65 demanded by the OP through their pre- sale notice. As to the amount of Rs. 42,770/- itself we do not find any satisfactory ground or evidence being produced by the Complainant as to why he should not pay this amount. Even non receipt of the statement of accounts in our opinion is not a strong enough ground to escape paying this amount. We therefore reject this contention of the Complainant.

    5.The remaining allegations as to retention of cheques with ulterior motives and car being kept exposed to sun and weather are rejected by us as being vague and unsubstantiated.

    6.The Complainant, has prayed for directions to OP to pay Rs. 1,38, 600/- towards medical treatment hiring charges etc. We have no doubt that some tension could have been caused to the Complainant as a result of the acts of the OP and that some medical expenditure in this regard may have been incurred. We also accept that some reputation loss could have occurred, but here we are not entirely convinced that the entire episode is only due fault of the OP. It is to be noted that the Complainant has not denied that his cheques have been dishonoured nor has he denied that his loan account had become overdue. We are also not convinced with the justification for daily travel by taxi by the Complainant. Merely submitting that he has to go to Margao because of his business is not convincing enough, specially when many of the urgent works now-a-days can be executed by only a phone call. The taxi charges of Rs. 600/- per day have also not been substantiated. We however do agree some compensation as called for and considering the facts and circumstances of the case we are of opinion that a consolidated sum of Rs. 30,000/- should meet the ends of justice.

    We therefore pass the following Order.

    O R D E R

    The OP herein is directed to:
    i.Hand over to the Complainant the Car bearing Registration No. GA-02-J-4614 or in the alternative to pay him Rs. 2,25,000/- (Rupees two lakhs twenty five thousand only). This amount to carry interest @ 10% from the date of the order if not complied as per direction (iv)
    ii. Pay him compensation of Rs. 20,000/- (Rupees twenty thousand only)
    iii. Issue him the statement of his loan account.
    iv. Orders to be complied within 30 days

  2. #17
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    Dharam Singh son of Sh. Hari Ram resident of village Girinala, Post office Churadha, Tehsil Sundernagar, District Mandi,



    …Complainant


    V/S

    1.ICICI. Bank Ltd through its Branch Manager, Mandi District Mandi, H.P.
    2.Sh.Gurpreet Singh Collection Manager, ICICI Bank
    Ltd Mandi, District Mandi, H.P.

    …..Opposite parties





    For the complainant Sh.Bhupinder Sharma, Advocate
    For the opposite parties
    No.1and 2 Sh. Narinder Chandel
    vice Sh A.S. Thakur, Advocate

    Complaint under Section 12 of the
    Consumer Protection Act, 1986.

    ORDER.
    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that he is the registered owner of Mahindra and Mahindra Pick up jeep bearing registration No. HP-31B-0264 and the same was purchased by him after raising loan to the tune of Rs.3,60,000/- and paid Rs.70,000/- in cash to the opposite party No.1 The rest of the loan amount was agreed to be paid within 47 monthly instalments with effect from 22-2-2004 to 22-12-2007 .The complainant has averred that after raising loan, he had paid Rs.2,01,100/- by depositing 27 instalments up to 20-5-2006 apart from Rs.70,000/- given at the time of sanction of the loan . In this way, the complainant had paid Rs..2,71,000/- till 20-5-2006. It has been averred that the opposite parties by employing their musclemen without the consent and permission of the complainant behind his back forcibly lifted the vehicle in question on 10-6-2006. When the complainant came to know about this fact , he visited the office of the opposite party No.1 and requested to release the vehicle . On 15-6-2006, the complainant again visited the opposite parties and tried to pay the instalments but he was not attended to . The complainant visited nine times to the opposite party and has requested them to receive the rest of entire loan amount , but they did not accede to his request nor the vehicle was released. Upon this , the complainant approached the police station Sunder Nagar on 12-2-207 and first information report under section 382, 420,506 IPC was registered agaisnt the opposite parties . It has been alleged that the opposite parties were not competent to take the vehicle forcibly except in accordance with law. The complainant had
    purchased the vehicle after raising loan from the opposite parties to run his business and he had attached his vehicle with Sabzi Mandi Sunder Nagar and was earning Rs.18,000/- per month from the vehicle in question. It has further been alleged that the act of the opposite parties in forcibly taking and selling the same amounts to deficiency in service . The complainant has suffered loss of Rs.2,16,000/- per annum with effect from 10-6-2006 on account of earning apart from this he had suffered physically and mentally. The police has failed to recover the vehicle and to restore the possession of the same to him. The complainant had claimed damages/ loss suffered by him due to non availability of vehicle at Rs.4,14,000/- with effect from 10-6-2006 to 10-5-2008 at the rate of Rs.18,000/- per month , Rs.2,00,000/- as compensation on account of mental tension and Rs.15,000/- as costs of litigation. .On these allegations, the complainant had sought a direction to the opposite parties to hand over the possession of the aforesaid vehicle to him Apart from this , damages, compensation and costs as referred above has also been claimed.

    2. The opposite parties resisted the complaint by raising preliminary objections that there exists commercial transaction and as such the complaint is not a consumer and that the complaint is not maintainable and sustainable in the eyes of law ..On merits , the opposite parties had admitted that the vehicle was financed by them and the complainant is owner of the vehicle It has been denied that Rs.70,000/- was paid by the complainant to them . The opposite parties had denied that the complainant was regular in depositing the instalments of loan and averred that he had made huge default. The complainant had concocted false story just to save his skin from liability. It has been averred that w hen the complainant failed to pay the loan amount , he himself surrendered the vehicle for want of loan amount and now in order to harass the opposite parties this complaint has been filed . The opposite parties have rightly repossessed the vehicle in question. The opposite parties have not denied lodging of criminal case against t them by the complainant but pleaded that false first information report has been lodged. The complainant was served with pre-sale notice as well as post sale notice but despite service of notice complainant did not approach them and lastly the vehicle was disposed of through public auction. The opposite parties have denied any deficiency in service . It has further been denied that the complainant has suffered any loss due to the act of the opposite parties Rest of the allegations of the complaint have been denied being wrong .The opposite parties have also alleged that this Forum has no jurisdiction to try and entertain the complaint . The opposite parties had prayed for dismissal of the complaint qua them .


    3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.


    4. We have heard the ld. counsel for the parties and have carefully gone through the record.


    5. The ld. counsel for the complainant had argued with full force that the opposite parties through their representative seized the vehicle of the complainant and taken it away behind his back which act on the part of the opposite parties tentamounts to deficiency in service and the complainant is entitled for re-possession of the vehicle apart from compensation and cost of litigation.


    6. On the other hand , the ld. counsel for the opposite parties had strenuously argued that since the complainant had not paid the instalments regularly as alleged by him in the complaint , therefore , he had surrendered the vehicle to the employee of the opposite parties and as such there is no deficiency in service on their part.

    7. Therefore, the matter has to be scrutinized and examined with respect to the aforesaid contentions of the ld. counsel for the parties.

    8. The question which requires determination in this complaint is whether the opposite parties are entitled to repossession of the vehicle and whether the financer is invested with the right to repossess the vehicle by use of force in case of default in payment of instalments. As per the complaint the vehicle was taken away on 10-6-2006 without his consent behind his back by the opposite parties with the help of some muscle men . On the other hand the case of the opposite parties is that the complainant was not regular in the payment of the instalments and he voluntarily surrendered the vehicle to their employee The onus was upon the opposite parties to prove that the vehicle was surrendered by the complainant himself and not snatched by them. The opposite parties should have filed the surrender letter duly signed by the complainant in case the complainant surrendered the vehicle voluntarily for non payment of instalments, but surrender letter had not seen the light of the day. There is not even an iota of evidence on record on the basis of which it can be inferred that the complainant had surrendered the vehicle voluntarily . On the other hand the complainant had placed on record photocopy of the First Information report No.66 dated 12-2-2007 of Police Station Sunder Nagar which depicts that the complainant had specifically levelled allegations against the opposite parties that they have snatched the vehicle . Since no evidence has been placed on record by the opposite parties to show that the vehicle was surrendered voluntarily by the complainant himself therefore, it can safely be held that the opposite parties have taken the possession of the vehicle forcibly by taking the assistance of third persons without intimating the complainant. Now the question which arises for consideration before this Forum is as to whether the opposite parties had a right to re-possess the vehicle in case of default of payment by use of force. The Hon’ble Supreme Court in the case titled Manager ICICI Bank Ltd vs Prakash Kaur and others AIR 2007 Supreme Court 1349 had held that recovery of the Bank Loans or seizure of the vehicles could be done only through legal means and the Bank cannot employ goondas to take the possession by force. In the order passed by Hon’ble National Commission in Citicorp Maruti Finance and ltd vs S.Vijayalaxmi , III(2007)CPJ-161(NC) it has been held by the Hon’ble National Commission that the recovery of the loan or seizure of vehicle could be done only through legal means .and the Banks cannot employ muscle men to take the possession by force. In para No.23 and 24 of the aforesaid order it has been held as under:-

    “23. From the aforesaid law laid down by the Apex Court as well as the High Court of Delhi, it is clear that even though the hire purchase agreement may give right to take possession of the vehicle , money lenders/ financial institution/ banks have no power to take possession by use of force and have to follow the statutory remedy which may be available under the law.


    24.May be that the procedure of law is slow but that is no excuse for use of force for repossessing the vehicle. If the contention of the petitioner that it can take possession of the vehicle by means of force is accepted ,the rule of jungle would prevail and might would be right.”
    In the present case also, it cannot be said that the opposite parties have taken the possession of the vehicle by following the statutory remedy available to them under the law and since the vehicle had been taken into possession by use of force , it was a clear cut case of unfair trade practice on the part of the opposite parties in view of the decision of Hon’ble National Commissioner cited supra.


    9. The next question which requires consideration is that when the repossession of the vehicle is held to be unfair what relief should be given to the complainant . It is the case of the opposite parties that the vehicle had been sold on 24-7-2006 after assessing the market value of the vehicle which was got assessed through registered valuer on 22-6-2006 at Rs.2,00,000/-. Photocopy of valuation certificate of Er. Vishal Kumar Gautam dated 22-6-2006 had been adduced in evidence. However the aforesaid valuation report is not supported by any documentary evidence to show that on what basis and in what manner the value of the vehicle has been assessed at Rs.2,00 000/-. There is nothing in the report that what procedure was adopted by the valuer in assessing the value especially in view of the fact that in the valuation report it has been mentioned that the vehicle was in good and working condition. Admittedly the complainant was not associated at the time of the assessment of the value of the vehicle. Moreover neither the original valuation report nor the affidavit of the Evaluer Er. Vishal Kumar Gautam has been placed on record by the opposite parties in support of the valuation report. Therefore, no reliance can be placed upon the aforesaid valuation report for assessing the value of the vehicle on the date of sale


    10. The ld. counsel for the complainant next contended the complainant was willing to pay the due instalments but despite that the opposite party No.1 has sold the vehicle at a throw away price of Rs.1,80,000 /- to the detriment of the complainant without associating him .He further contended that the opposite party No.1 had not adopted a transparent procedure in selling the vehicle . Therefore, at this stage, the question which arises for determination by this Forum is as to whether the opposite party No.1 was justified in selling the vehicle in the sum of Rs.1,80,000 and whether the sale of the vehicle had been conducted after adopting transparent procedure especially when even according to the opposite party No.1 the market value of the vehicle was Rs.2,00,000/- The opposite party No.1 had not specifically mentioned the reserve price of the vehicle fixed at the time of the auction of the vehicle and had not filed any documentary evidence with respect to the proceedings of the auction of the vehicle to let this Forum know as to what was the reserve price of the vehicle fixed at the time of the auction of the vehicle and what procedure was adopted by the it for selling the vehicle. As such, an adverse inference has to be drawn against it for non placing on record the material documents.


    11. At this juncture , it would be relevant to refer to the case law Citicorp case cited supra where in the Hon’ble National Commission had taken note of the Code of Conduct prescribed by the petitioner before taking the possession of the vehicle and the Hon’ble National Commission also referred to relevant portion of the Code of Conduct which gives an elaborate procedure before taking the possession of the vehicle. In the aforesaid judgment it has been held in para no. 44 as under:-


    “44. It is to be stated that in this auction the consumer whose vehicle is seized has no voice or role to play. In any case , if an opportunity is given to the consumer, when his vehicle is likely to be sold at a particular price and option should be given to him to purchase the vehicle at the said price, then it is a transparent procedure. The procedure which is stated in the Conduct Book may appear to be attractive, but in practice it is not followed and causes loss to the consumer- because in many cases the bidders purchase vehicle at a throw away price. ”

    12. In the present case , there is no evidence on record to suggest as to whether there is any procedure prescribed by the opposite party No.1 for selling the vehicles in public auction and if yes whether the prescribed procedure has been adopted by it during the sale of the vehicle in question. Therefore, in the absence of material evidence on record , it cannot be said that any transparent procedure had been followed by the opposite party No.1 at the time of auction of the vehicle in question. Moreover ,there is no material on record to suggest that any opportunity was granted to the complainant to purchase the vehicle at the sale price of Rs.1,80,000/-Similarly there is nothing on record to suggest as to whether any opportunity was granted by the opposite party No.1 to the complainant to bring prospective buyers to purchase the vehicle over and above the price of Rs 1,80,000/-It is the admitted case of the opposite parties that a sum of Rs.3,06,600 /- had been advanced for the purchase of the vehicle on 27-1-2004 as per the vehicle loan-cum hypothecation agreement. However, no explanation has been put forth by the opposite parties as to why the vehicle was sold for a meagre sum of Rs.1,80, 000/only within a period of about two years and six months from the date of purchase which shows unfair trade practice adopted by the opposite parties by selling the vehicle at throw away price of Rs.1,80,000/- .Moreover , after seizure of the vehicle the complainant was willing to pay the due instalments but despite that the opposite parties have sold the vehicle. It is hard to believe that the value of the vehicle would come down to Rs.1,80,000/- only within a period of two years and six months from the date of its purchase especially in view of the fact that the vehicle was in a good working condition as observed by the valuer in his report dated 22-6-2006. No explanation has been given by the opposite parties as to why they have sold the vehicle at Rs.1,80,000/- despite the fact that they themselves assessed the market value of the vehicle at Rs.2,00,000/-.


    13 Now the point left for consideration is that what should have been the value of the vehicle at the time of its sale by the opposite parties . In a case titled Magma Leasing Ltd vs Bharat Singh 1 (2007) CPJ-200 it has been held by the Hon’ble Delhi State Consumer Disputes Redressal Commission that in such cases cost of the vehicle shall be adjusted by depreciating the value at the rate of 5% per year in case of passengers vehicle and @ 10% per year in a case of commercial vehicle .Para No.10 and 11 of the order reads as under:-
    “10.Whenever the financer chooses to take possession of the vehicle, it has to refund the contribution made by the person concerned after adjusting the unpaid instalment till the date of seizure of the vehicle and not beyond that as no person can be deprived of the amount contributed toward the purchase price of the vehicle. By giving loan amount of Rs.3,90,000/- against the cost of Rs.5,89 lacs , financier cannot be allowed recovery of post dated cheques as the vehicle against which loan was advanced had been seized and the consumer is no more in possession of the goods for which he had raised the loan.
    11. In such a situation , financier has to adjust the value of the vehicle by way of depreciated value and the value at which it has auctioned or sold the vehicle. The value of such a vehicle cannot be fixed by the financier at its whims or caprice. Experience shows that one or two years old vehicles are sold at half or little more value to the known people or friends or for many other consideration. That is why we have taken a view that cost of the vehicle shall be adjusted by depreciated value @
    5 % per year in case of passenger vehicle and @ 10% in case of commercial vehicle ”



    14. In the present case , as per the admitted case of the parties , the vehicle in question was a commercial vehicle and the same was purchased by the complainant in the month of January 2004. As per the affidavit dated 7-3-2009 filed by Sh. Harkesh Kumar ,Collection Manager of opposite party No.1 the vehicle was seized on 14-6-2006 and was sold for Rs.1,80,000/- on 24-7-2006 .Therefore at the time of the sale , the age of the vehicle in question had exceeded two years but not exceeded three years from the date of its purchase by the complaint . Hence the cost of the vehicle at the time of the sale has to be adjusted by calculating its market value by depreciating the amount at the rate of 30% ( i.e.10% per year) from. the actual purchase price of the vehicle by the complainant Since the vehicle has been sold , therefore , no direction can be issued to the opposite party No.1 to return the same to the complainant. Therefore, in the facts and circumstances of the case, it would be in the interest of justice if we direct the opposite parties to adjust the sale proceeds of the vehicle towards the satisfaction of the dues by calculating its market value by deducting 30% of the amount from the actual price of the vehicle instead of Rs. 1,80,000/-and to adjust the margin money, if any, contributed by the complainant towards the purchase price of the vehicle and also to adjust various amounts deposited by the complainant from time to time with the opposite party No.1 towards the payment of the instalments after adjusting unpaid instalments till the date of seizure of the vehicle and not beyond that as the vehicle against which the loan was advanced had been seized and the complainant was no more in possession of the same for which he had raised loan as laid down by the Hon’ble Delhi State Consumer Disputes Redressal Commission in the case titled Magma Leasing Ltd vs Bharat Singh 1 (2007) CPJ-200, supra.




    15. The complainant had claimed Rs.2,00 000/- as damages besides costs of litigation. In this respect, it would be relevant to mention here that the entire action of the opposite party No.1 was illegal and arbitrary in nature and the complainant had suffered humiliation before his neighbours, friends and relatives and also suffered mental pain and agony besides loss of business . Therefore, in such circumstances an amount of Rs.25,000/- will be sufficient to meet the ends of justice on this score and Rs.2000 /- as costs of litigation.



    16. In view of what has been stated hereinabove, the complaint is allowed against the opposite party No.1 with directions as under:-

    (i) The opposite party No.1 is directed toadjust the sale proceeds of the vehicle towards the satisfaction of the dues by calculating its market value by deducting 30% of the amount from the actual purchase price of the vehicle by the complainant instead of Rs.1,80,,000/-and to adjust ,the margin money, if any, contributed by the complainant towards the purchase price of the vehicle and also to adjust various amounts deposited by the complainant from time to time with the opposite party No.1 towards the payment of the instalments after adjusting unpaid instalments till the date of seizure of the vehicle . It is further directed that after adjustment of the amounts as aforesaid, if it is found that any excess amount has been paid by the complainant , the same shall be refunded to him.

    (ii) The opposite party No.1 is further directed to pay Rs.25,000/- on account of harassment, mental agony , pain , loss of business and Rs.2000/- as costs of litigation.

  3. #18
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    Dhanwant Kaur wife of Sh. Sukhdev Singh resident of H.No.2605, Street No.2, Guru Nanak Colony, Opp. G.N.E. College, Gill Road, Ludhiana.

    ….Complainant.
    Versus

    ICICI Bank Limited, Feroze @@@@hi Market, Ludhiana through its Manager/Director.
    ….Opposite party.

    COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present: Sh. Vijay Kumar Sharma Adv. for complainant.
    Sh. Alok Mohindra Adv. for opposite party.

    O R D E R

    RAJESH KUMAR, MEMBER:

    1- Briefly stated, complainant purchased one old Indica car bearing registration no.HR-06G-6360 from Manpreet Singh s/o Joginder Singh, which was got financed from opposite party for Rs.98000/- vide agreement no.LULUD000007534389. Since availing of loan, complainant regularly paid installments of Rs.4755/- per month. At the time of advancement of loan, opposite party got original RC, 6 blank signed cheques, ID proof, PAN Card, ITR etc. for verification. Despite this, opposite party did not issue registration certificate of said vehicle, due to which he could not ply the same, causing financial loss to him. Complainant approached opposite party to give registration certificate of the car but to no effect. Then he served letter dated 4.10.2007 on opposite party to issue RC but without result. Claiming this act of opposite party amounting to deficiency in service by filing present complaint u/s 12 of the Consumer Protection Act, 1986, sought directions to opposite party to issue registration certificate of the car and pay compensation of Rs.50000/-.


    2- Opposite party in reply, claimed that complaint is not maintainable as the opposite party is not withholding the RC. If the complainant has not received the RC, then she has to approach the dealer through whom the car was purchased or DSA through whom, she got her case processed. There is no deficiency in service on their part. Complaint is bad for non-joinder and mis-joinder of party. She has to join the dealer or the DSA, because she can claim relief only against them. No cause of action ever accrued to the complainant to file the complaint. Obtaining of loan of Rs.98000/- by complainant is admitted. The amount paid and amount outstanding, is duly reflected in statement of account maintained in due course of business. It is denied that complainant ever approached opposite party for getting RC. Complaint deserves dismissal as opposite party hands over cheque of loan amount either to the dealer from whom the vehicle has been purchased or to the DSA. It is denied that on any act of opposite party, complainant is unable to ply her vehicle. So, complainant not entitled to any relief and complaint deserves dismissal.


    3- Both parties adduced evidence in support of their claims and stood heard though their respective counsels.


    4- Complainant argued that he has been paying the installments of Rs.4755/- p.m regularly. At the time of advancing loan, opposite party got the original RC, 6 blank signed cheques, ID proof, PAN Card, ITR etc. for verification. The above documents were submitted to the bank alongwith original RC, but now the bank is not issuing RC to the complainant, as a result, the complainant is unable to ply the vehicle. Complainant also requested the opposite party vide letter dated 3.10.2007 Ex.C3 to deliver original RC, but opposite party postponed the matter on one pretext or the other.



    5- Opposite party argued that the bank is not withholding the original RC of the vehicle. The complainant has purchased the vehicle through authorized dealer and the bank gave the cheque/draft to the authorized dealer and not to the complainant. Therefore, opposite party is not in possession of the original RC. It is also relevant to mention here that the dealer handed over the vehicle to the complainant. Therefore, it is wrong to say by the complainant that he has submitted original RC to the bank. The complainant has been paying the installments, as per Ex.R1.


    6- From the above facts and figures, it is clear that the complainant is not able to prove the handing over the RC to the opposite party bank. The argument of the complainant that the RC was given to the bank at the time of advancing the loan, carries no weight. As the bank directly gave payment of loan to the authorized dealer. It is obvious that no reason for the bank either to take the original RC for granting loan or keeping it with them. It is clear from the above facts and figures that opposite party is not in possession of original RC of the vehicle in question. Therefore, the complainant is not in a position to prove his point of view regarding original RC with the bank. Hence, complaint is without merit, so the same is dismissed

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    Complaint No: 06 of 2009.
    Instituted On: 02.01.2009.
    Date of Service: 02.02.2009.
    Decided On: 09.04.2009.
    Paramjit Kaur (aged 37 years) wife of Amarjit Sharma, resident of Mohalla Pandatan Wala, Kot Ise Khan, Tehsil & Distt.Moga.
    Complainant.
    Versus
    ICICI Bank Limited, Ferozepur Road, Moga through its Branch Manager/ authorised person.
    Opposite Party.
    Complaint under section 12 of the
    Consumer Protection Act, 1986.
    Quorum: Sh.J.S.Chawla, President.
    Sh.J.S.Mallah, Member.
    Smt.Bhupinder Kaur, Member.

    Present: Sh.Sanjeev Sharma, Advocate counsel for the complainant.
    OP-ICICI Bank exparte.

    (J.S.CHAWLA, PRESIDENT)
    Smt.Paramjit Kaur complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against ICICI Bank Limited, Ferozepur Road, Moga through its Branch Manager/ authorised person (herein-after referred to as ‘ICICI Bank’)-opposite party directing them to issue ‘No Objection Certificate’ and also to pay compensation of Rs.50000/- for causing mental tension and harassment or any other relief to which this Forum may deem fit be granted.


    2. Briefly stated, in the year of 2004 Smt.Paramjit Kaur complainant availed loan to the extent of Rs.990000/- from the OP-ICICI Bank, returnable alongwith interest in 47 equal monthly installments of Rs.23700/-. That as per the terms and conditions of the loan agreement, the complainant repaid the entire loan amount in 47 equal monthly installments. That when the complainant visited the OP-ICICI Bank to get form no.35 i.e. ‘No Objection Certificate’ to get the RC of the vehicle transferred in her favour, the officials of the OP-ICICI Bank told that the receipt for the month of December, 2004 was missing. On their direction, she supplied them the photo copy of the said receipt dated 27.12.2004. That inspite of repeated visits and requests, the OP-ICICI Bank did not issue her the ‘No Objection Certificate’ till date. That the aforesaid act and conduct of the OP-ICICI Bank has caused her great mental tension and harassment. Hence the present complaint.


    3. Notice of the complaint was given to the OP-ICICI Bank who appeared through Sh.Ajay Gulati Advocate, but did not file written reply, affidavit and documents. That on 10.03.2009, Sh.Ajay Gulati ld.counsel for the OP-ICICI Bank pleaded no instruction and the OP-ICICI Bank was proceeded against exparte.



    4. To prove her case, in exparte evidence the complainant tendered in evidence her affidavit Ex.A1, copy of legal notice Ex.A2, copies of receipts Ex.A3 to Ex.A50 and closed her evidence.



    5. We have heard the arguments of Sh.Sanjeev Sharma ld.counsel for the complainant and have very carefully perused the evidence on the file.


    6. Sh.Sanjeev Sharma ld.counsel for the complainant has mainly argued that the OP-ICICI Bank has failed to issue the ‘No Objection Certificate’ and due to this reason the complainant could not get transferred the vehicle in her favour. This contention of the ld.counsel for the complainant has full force. Admittedly, the complainant had taken loan of Rs.990000/- from the OP-ICICI Bank which was repayable alongwith interest in 47 equal monthly installments of Rs.23700/-. As per the terms and conditions of the loan agreement, she has repaid the loan amount in 47 equal monthly installments. In rebuttal, the OP-ICICI Bank has failed to lead any evidence to prove, if any amount is due against the complainant. Thus, in the absence of any evidence in rebuttal, we accept the affidavit Ex.A1 of the complainant, copy of legal notice Ex.A2, copies of receipts Ex.A3 to Ex.A50 and hold that the complainant has repaid the loan amount in 47 equal monthly installments of Rs.23700/-. But inspite of the repayment of the loan amount alongwith interest, the OP-ICICI Bank has failed to issue the ‘No Due Certificate’ to the complainant. Hence, the OP-ICICI Bank has committed deficiency in service and they are liable to pay compensation to the complainant.



    7. No other point is urged and argued by the ld.counsel for the complainant before us.


    8. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OP-ICICI Bank is directed to issue ‘Non Objection Certificate’ to the complainant and also to pay Rs.5000/- as compensation for mental tension and harassment within one month from the date of receipt of copy of this order.

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    C.C. No. 304 of 3.11.2008
    Decided on : 30.4.2009




    1. Inderpal Singh S/o Sh. Balwant Singh, R/o 226, Kamla Nehru Colony, Bathinda.
      .... Complainant
      Versus


      1. ICICI Bank Ltd., Credit Card Department, SCO-6, Chhoti Baradari, Basement, Patiala through its Manager
      2. ICICI Bank Ltd., Guru Teg Bhadur Chowk, Bibiwala Road, Bathinda through its Manager
      3. ICICI Lombard GIC Ltd., Interface 11, 4th Floor, Malad Link Road, Malad (W), Mumbai-400064 through its Manager.
      4 ICICI Lombard GIC Ltd., Goniana Road, Near Bus Stand, Bathinda through its Manager.
      ..... Opposite parties


    Complaint under section 12 of the Consumer Protection Act, 1986


    QUORUM:
    Sh. Pritam Singh Dhanoa, President
    Dr. Phulinder Preet, Member
    Sh. Amarjeet Paul, Member


    For the complainant : Sh. Tejinder Singh Advocate
    For the opposite parties : Sh. Vinod Garg Advocate, counsel for
    opposite parties No. 3 & 4
    Opposite parties No. 1 & 2 already exparte


    O R D E R.


    PRITAM SINGH DHANOA, PRESIDENT:-

    1. This complaint has been filed by Sh. Inderpal Singh S/o Sh. Balwant Singh, resident of 226, Kamla Nehru Colony, Bathinda under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against ICICI Bank Ltd. and ICICI Lombard GIC Ltd. through its Manager for restraining from effecting recovery of Rs. 14,523.58 demanded vide bill dated 21.12.2007 after setting-aside the same with further direction to pay him compensation in the sum of Rs. 20,000/- on account of mental tension and physical harassment and equal amount as litigation expenses. Briefly stated, the case of the complainant may be described as under :-
      He got issued Credit Card No. 5176 3701 7332 7002 from ICICI Bank vide their letter dated 15.9.2004 at his residential address i.e. 226, Kamla Nehru Colony, Bathinda. The complainant never withdrew any amount from his account maintained with opposite parties No. 1 & 2 through Credit Card, but in the notice of demand dated 21.12.2007, he has been directed to deposit a sum of Rs. 14,523.58 without giving details of demand. He never signed any discharge slip against his Credit Card nor any pin code number has been allotted to him by the bank. He has also not secured copy of statement of his account. The complainant has not furnished any proposal form for issuance of any GIC Lombard Insurance Policy and never executed any document entitling opposite parties No. 1&2 to debit his account for issuance of such policy, but he has been asked by opposite party No. 4 to get renewed Health Insurance Policy vide letter dated 1.2.2007. The demand raised vide notice dated 21.12.2007 and factum of issuance of insurance policy No. 4034/048386/00/000 by opposite parties without his consent amounts to deficiency in service and unfair trade practice on their part. Hence, the complaint.
    2. On being put to notice, no-one came present on behalf of opposite parties No. 1 & 2 and as such, they were proceeded against exparte vide order dated 23.12.2008. The remaining opposite parties filed written version resisting the complaint by taking preliminary objections; that it is false and frivolous and has been filed to damage their reputation, as such, deserves to be dismissed with compensatory costs; that intricate questions of law and facts are involved and parties need to lead elaborate evidence, as such, controversy cannot be adjudicated by this Forum in summary manner; that complainant has concealed material facts and documents from the knowledge of this Forum, as such, he is not entitled to reliefs as prayed for; that he has no locus-standi and cause of action to file the complaint which is not maintainable and is barred by limitation and complainant not being consumer, is not entitled to file the complaint. On merits, it is submitted that complainant secured insurance policy No. 4034/048386/00/000 which was due for renewal on 16.3.2007 because of which notice dated 1.2.2007 was served calling upon him to get renewed said policy by making payment of premium. It is denied that above said policy was issued by answering opposite parties without consent of the complainant or that there is any deficiency in service on their part or they have adopted unfair trade practice. Rest of the averments made in the complaint have been denied and a prayer has been made for dismissal of the complaint.
    3. On being called upon by this Forum to do so, learned counsel for the complainant tendered his affidavit Ex.C.1 and copies of documents Ex.C.2 & Ex.C.3 before he closed evidence. On the other hand, learned counsel for opposite parties No. 3 & 4 tendered affidavit of and copies of documents Ex.R.2 to Ex.R.5 before he closed their evidence.
    4. We have heard the learned counsel for the complainant and opposite parties No. 3 & 4 and gone through the oral and documentary evidence produced on record with t heir kind assistance.
    5. At the outset, learned counsel for contesting opposite parties has submitted that as projected by complainant in his complaint and affidavit tendered in evidence, he never availed services of opposite parties No. 3 & 4 nor paid any amount as consideration thereof. Learned counsel has further argued that controversy regarding unauthorised debit of amount on the basis of credit card or otherwise, is between the complainant and opposite parties No. 1 & 2 with which opposite parties No. 3 & 4 have no concern, as such, complaint against them is not maintainable and is liable to be dismissed with costs.
    6. We find merit in the argument advanced by learned counsel for opposite parties No. 3 & 4 because complainant has not alleged that they have played any role in debit of amount of insurance policy in his name which has expired before filling of instant complaint. He has also not alleged that he paid any amount to opposite parties No. 3 & 4 as consideration for availing their services. Therefore, the complaint is liable to be dismissed against them.
    7. Further, as per contents of affidavit of the complainant regarding unauthorised deduction from his account for the insurance policy on the basis of credit card, no proof or document has been relied upon by him. There is no document except copy of insurance policy Ex.R.2 and copies of Cashless Health Record Ex.R.3 to Ex.R.5 produced on record by the contesting opposite parties to establish that complainant has authorized opposite parties No. 1 & 2 to deduct the amount from his account on the basis of credit card for issuance of insurance policy. The complainant has specifically denied the factum of receipt of the said policy in the complaint as well as in his affidavit tendered in evidence. Since opposite parties No. 1& 2 have been proceeded against exparte, therefore, evidence produced on record has gone uncontrovered and there is no reason to discard the plea of the complainant that amount for issuance of the insurance policy was deducted from his account by opposite parties No. 1 & 2 by adopting unfair trade practice. As such, in our view, opposite parties No. 1 & 2 cannot escape liability for the same and notice of demand dated 21.12.2007 Ex.C.3 demanding a sum of Rs. 14,523.58 is not sustainable and is liable to be set-aside. Since the complainant has been subjected to mental and physical harassment due to unfair trade practice adopted by opposite parties No. 1 & 2 for payment of premium to remaining opposite parties for issuance of insurance policy, therefore, he is entitled to seek compensation and costs for filing the instant complaint from them.
    8. For the aforesaid reasons, we dismiss the complaint against opposite parties No. 3 & 4 and accept the same against opposite parties No.1&2 and set aside the impugned notice dated 21.12.2007 Ex.C.3. Opposite parties No. 1 & 2 are also directed to pay a sum of Rs. 1,000/- on account of mental tension and physical harassment and Rs. 1,000/- as costs for filing the instant complaint within a period of two months from the date of receipt of copy of this order.

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    COMPLAINANT Sri.R.Mussaver Pasha,Aged about 40 years,No.4089, II Cross, II Stage, Kumaraswamy Layout,Bangalore – 560 095Advocate – Smt.Uma K.M

    V/s.


    OPPOSITE PARTIES

    1. ICICI Bank,No.1, 2nd Floor,ICICI Bank Towers, Shobha Pearl,Opposite to Mayo Hall,Commissariat Road,Bangalore – 560025.Represented by its Manager.

    2. ICICI Bank Ltd.,Charge Back Department,Empire Complex,2nd Floor 414,Senapati Bapat Marg.Lower Parel,Mumbai – 400013.Represented by its Manager.Advocate – Sri.Jai M.Patil


    O R D E R


    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.1,65,000/- and for such other relief’s on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under:

    Complainant availed the credit card facility from OP in the month of April 2005. He was prompt in repayment of the dues in time. With all that OP for no fault of the complainant used to charge delayed payment charges and other miscellaneous expenses which are out of the purview of the terms and conditions. They also imposed the taxes. On the representation made by the complainant some times they reversed the same. The maintenance of the accounts, sending of the monthly statements and bills by the OP are arbitrary. On 05.01.2008 complainant was at Mangalore at that time he received an SMS with regard to use of said credit card at Ryman, London and transacted to the tune of Rs.6,499-66. At no point of time on that day complainant was in London immediately he requested the OP to block his card. OP expressed its inability to do the same and sought for 48 hours time. Again the said card was used at 8.30 PM and the transaction took place for Rs.46,047-12 and third transaction was for Rs.46,344-02. It is all done by unknown party. Though complainant made several requests and demands to OP to rectify the said mistake and counter check the transaction it went in vain. He was made to move from pillar to post. For no fault of his the said transactions exceeded his card limit. OP imposed the late fee charges and taxes in thousands and made a demand of Rs.51,271-95 and for a total sum of Rs.97,730-61 which is unjust and improper. Thus complainant felt deficiency in service on the part of the OP. He even issued the legal notice. There was no response. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.


    2. On admission and registration of the complaint, notices were sent to the OP. OP is represented through his Advocate. Though sufficient and reasonable time is given to OP to file version even by imposing the cost. It went in vain. Neither the cost is paid nor the version is filed. Then the complainant filed his affidavit evidence and produced the documents. OP didn’t participate in the proceedings. Then the arguments were heard.



    3. It is the case of the complainant that he availed the credit card facility from OP in the month of April 2005 and he was doing transaction and prompt in payment of the bill raised by the OP. With all that OP at its own whim, fancy and convenience used to impose the tax and other hidden charges without there being any agreement and contract and that too without the knowledge of the complainant. Complainant never consented for the said charges. Hence complainant felt the maintenance of the accounts, issuance of the statement of accounts by OP is unjust and arbitrary.



    4. It is further contended by the complainant that on 05.01.2008 he stayed at hotel Srinivas, C.H.S Road, Mangalore. At about 7.30 PM he received an SMS from the OP that by using his credit card a transaction is taken place for Rs.6,499-66 that too at Ryman, London. Complainant never went to London on that day. Immediately he requested the OP to block his card. OP sought for 48 hours time. Again at 8.30 PM another SMS is received wherein it is reported a transaction for Rs.46,047-12 is taken place by using the said credit card at Argos, London and he received the third SMS wherein a transaction for Rs.46,344-02 has taken place. Complainant was shocked to know the same. Documents to that effect are produced.



    5. Complainant immediately contacted the OP to rectify the said mistakes but all his efforts went in vain. He was made to move from pillar to post. For no fault of the complainant, OP imposed late fee charges, tax and other hidden charges. OP raised the bill for Rs.97,730-61. Complainant is not obliged to pay the same because he never transacted through his credit card at London on that particular day.



    6. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. What is the basis for the OP to raise the said bills for the month of May, June, July and make such a claim without ascertaining the actual use and genuineness of the said transaction is not known. Though complainant issued the legal notice. There was no response from the OP. So the hostile attitude of the OP must have naturally caused both mental agony and financial loss. The non participation of the OP in the proceedings though it had knowledge of filing of the complaint with certain allegations by producing the supporting documents leads us to draw an inference that OP admits all the allegations.



    7. The evidence of the complainant remained unchallenged. Under such circumstances we have no other go but to believe the say of the complainant. If at all complainant is doing transaction as contended by the OP in their statement, OP would have supported their defence but they have not done the same. Under the circumstances it can only be said that the act of the OP is arbitrary.



    8. Of course complainant claimed a compensation of Rs.1,65,000/-, we don’t find basis for the said claim. If OP establishes its legal right to recover the amount in due in pursuance of the genuine transaction if done by the complainant they have got the ways and means to redress their grievance but they can’t keep mum without disclosing the defence if any. Having considered the facts and circumstances of the case, in our view justice will be met by directing the OP to pay a compensation of Rs.10,000/- to the complainant towards the mental agony along with litigation cost of Rs.500/-. With these reasons we proceed to pass the following:



    O R D E R


    The complaint is allowed in part. OP is directed to pay a compensation of Rs.10,000/- and litigation cost of Rs.500/- to the complainant. This order is to be complied within four weeks from the date of its communication.

  7. #22
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    COMPLAINANT M/s. Mookambika Enterprises, No. 595, Dr. Rajkumar Road, Prakashnagar, Bangalore – 560 021. Represented by it’s Partner Sri. Adikeshavalu Reddy, S/o. Late. N. Dasaradharama Reddy, Aged about 54 years. Advocate (K.S. Venkataramana)

    V/s. OPPOSITE PARTIES

    1. ICICI Bank Limited, ICICI Bank Towers, Bandra-Kurla Complex, Mumbai – 400 051 India.


    2. ICICI Bank Limited, ICICI Bank Towers, No.1, Commissiariat Road, Bangalore – 560 025. Advocate (Jai. M. Patil)


    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.15,48,100/- and return all original documents and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant is a firm doing its business in agricultural products approached OP.2 in the year 2005 for credit facility. OP agreed to extend helping hand and a credit agreement came to be executed on 24.06.2005 for a term of one year. In order to have the said facility complainant was directed to deposit Rs.8,00,000/- plus Rs.1,00,000/-, complainant complied the same on 05.01.2006 and 29.01.2005. He has also paid Rs.30,000/- on 13.03.2006. Complainant was expecting the commission with regard to the business carried that too to the extent of Rs.2,00,000/- for the relevant period 2005-06. Somehow OP failed to credit the said commission to his account. At the time of availment of the said credit facility complainant has produced good number of documents. As the complainant felt that the transaction is not that favourable to them OP sent a renewal letter dated 11.05.2006. Complainant informed OP that they are not interested to renew the said agreement, then sought for the return of the original documents and the amount deposited as well as the commission accrued, all their efforts went in futile. Complainant even got issued the legal notice on 21.10.2008. Again there was no response. Hence complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.



    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant availed the said credit facility under certain scheme floated by the OP with regard to retail warehousing. Upon receipt of the said goods receipt stored at the ware house and a lien marked in favour of the OP’s used to release the amount. Complainant is bound by Management and Collection Agency Agreement (M&C). Complainant was to locate the prospective borrower for the said loan facility, store the goods as per the procedure in the warehouse and that warehouse receipt is to be pledged to the OP. Complainant has violated the said terms and conditions of the agreement in collusion with the so called borrowers. Without the notice of the OP they removed the stock from the warehouse. On thorough enquiry OP noticed missing of the said stock. As the OP felt there is a violation of clause 21, 22, 23, 26 to 29 of M & C agreement, they were forced to ask the complainant to abide by the said agreement. In order to avoid the said liability and responsibility, complainant has come up with this false complaint. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.



    3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.



    4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?


    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order.


    R E A S O N S



    6. At the outset it is not at dispute that the complainant availed the credit facility from the OP and entered into an M & C agreement on 24.06.2005. As per the terms and conditions of the said agreement complainant is required to deposit Rs.9,00,000/- and also to pay Rs.30,000/- for the other procedural aspect. Now the grievance of the complainant is that even though he deposited all the title deeds, relevant documents as required and also made payment, OP who is required to credit the commission accrued by the complainant for the year 2005-06, failed to do so. According to the complainant the said commission comes to the tune of Rs.2,00,000/-. For this claim basically there is no proof. Of course complainant enjoyed the said credit facility for one year, thereafter OP intended to renew the said agreement by addressing a letter dated 11.05.2006, somehow complainant has not shown the interest to renew the said agreement. Then complainant requested the OP to refund whatever the deposits they have made including the so called commission earned and to return the documents produced. There was no response. Hence he got issued the legal notice on 21.10.2008.



    The copy of the correspondence and legal notice are produced. When there was no response from the OP complainant felt the deficiency in service.



    7. As against this it is specifically contended by the OP that it has started a scheme with respect to retail warehousing receipt finance for the farmers to enable the farmers to avail a loan against their goods stocked. Upon the receipt of the sale receipts of the goods stored at the warehouse lien is marked in favour of the OP. OP would release the said lien on the products sold by the farmers when it receives the consideration. The fact that complainant is bound by M&C agreement is established. It is further contended by the OP as per the said agreement complainant was to locate the prospective borrower for the said loan, store the goods as per the procedure in the warehouse and the warehouse receipts were to be pledged to the OP, against which a finance will be extended to the borrower through OP. It was also agreed that the complainant would be jointly and severally liable to pay the dues in default committed by the borrower.


    8. It is further contended by the OP that complainant committed a breach of the terms and conditions of the agreement. An allegation is made against the complainant that in collusion with a borrowers they have removed all the stock from the warehouse without the knowledge of the OP and encashed the same. In addition to that complainant failed to cooperate the OP in finding out how the said stock was missing and what happened to the said stock entrusted to. This specific defence set out by the OP is not denied by the complainant. When that is so, on the face of it there appears to be violation of clauses like 21 to 23 and 26 to 29 by the complainant. When the complainant is the defaulter, he cannot allege the deficiency in service against the OP.



    9. On the plain reading of the complaint and the allegations made therein, it did not spell out a case of hiring of service and suffering from deficiency, rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of the accounts. In our view complainant did not fall within the ambit of sec-2(1) (c) (e) of the C.P. Act. We have also taken note of the facts and circumstances of the case, considering the complex question of law it entailed, it would require volumeness evidence for its disposal, which is not possible for this Forum to go into all the details in its summary jurisdiction. If the complainant is so advised, he can very well file a Civil Suit to redress his grievance if any. With these observations we find complainant has failed to prove the deficiency in service on the part of the OP. Under such circumstances he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following:


    O R D E R

    The complaint is dismissed. In view of the nature of dispute no order as to costs.

  8. #23
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    COMPLAINANT Sri.Ashok Kumar SS/o Shivalingappa,Aged about 47 years,R/o Swayamprabha Kalyanamantapa,127/3, Cauvery Nagar,Police Station Road,Bangalore – 560 079.Advocate – Sri.R.S.Ravi


    V/s.

    OPPOSITE PARTIES

    1. ICICI Bank Limited,Mytree Centre, 4/10,1st Floor, West Wing,Bommanahalli Hosur Road,Bangalore – 560 068.Rep. by its Authorized signatory.2. ICICI Bank Limited,MD. Illyas Khan Estate,5th Floor, No.1, Banjarahills,Above Music World,Hyderabad – 500 034.Rep. by its Nodal Officer.


    O R D E R


    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to redeem the reward points of Rs.26,119/- and adjust the same towards the amount in due and pay compensation and renew the credit card and for such other relief’s on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant availed the credit card facility from OP in the month of March 2007 along with the other benefits. OP promised that under the scheme known as ICIC Bank Express Reward Program every customer can earn 10 reward points for every Rs.200/- spent. Complainant was using the said credit card since April 2007 and he is prompt in making payment of the amount in due. Complainant accrued nearly 26119 reward points then requested OP to take into account of the said reward point which is equal to Rs.1/- to each point towards the out standing due. It was not considered, several times complainant made correspondence. Again there was no response. When complainant checked his S.B account OP instead of adjusting the amount in due earned by way of reward points debited the out standing due from his S.B account which is unjust. Complainant made request to OP to waive of the interest. Again there was no response. Thus complainant felt deficiency in service on the part of the OP. The highhandedness of the OP in debiting Rs.8,747/- from his S.B account is improper. In addition to that OP has blocked the credit card since April 2008. Hence complainant for no fault of his is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.


    2. On admission and registration of the complaint, notices were sent to the OP. Though OP is duly served with the notice remained absent without any sufficient reason or cause. The absence of the OP does not appear to be as bona fide and reasonable. Hence OP is placed Ex-parte.


    3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP didn’t participate in the proceedings. Then the arguments were heard.



    4. It is the case of the complainant that he availed credit card facility from OP in the month of March 2007. OP floated a scheme known as ICIC Bank Express Reward Program wherein customer used to earn 10 reward points for every Rs.200/- spent transacted through the said credit card. A brochure and the proceedings in that regard are produced. Complainant used the said credit card for one year. Up to April 2007 he was prompt in making payment of the amount in due in usage of the credit card. OP is expected to reward the points. According to complainant he earned nearly 26119 rewards points each point carry Rs.1/-, so he is expecting Rs.26119/- from the OP.



    5. Complainant requested the OP to adjust the amount towards the out standing amount in due but no such steps are taken. OP insisted him to open the savings accounts. Complainant opened the savings account then also that reward point amount is not credited his account. On the other hand OP with all highhandedness debited a sum of Rs.8,747/- from the S.B account of the complainant towards the interest on the amount in due which is unjust. Complainant made several correspondence and wrote letters to OP. There was no response.




    6. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. It is a quality of evidence that is more important than that of the quantity. The non appearance of the OP even after due service of the notice leads us to draw an inference that OP admits all the allegations made by the complainant. With all that OP under the guise of non payment of the interest towards the usage of the card, have blocked credit card of the complainant since April 2008. Naturally this unilateral act of the OP must have caused both mental agony and financial loss.



    7. Having considered the facts and circumstances of the case, we are satisfied that the complainant is able to prove the deficiency in service on the part of the OP. Though OP is liable to pay the amount with regard to the reward points accrued by the complainant as per their own program and scheme they failed to discharge their obligation. On the other hand debited certain amount from the S.B account of the complainant towards interest accrued on the out standing dues. All these acts and deeds of the OP amounts to deficiency in service. Under such circumstances we find it is a fit case wherein complainant deserves certain relief. Accordingly we proceed to pass the following:



    O R D E R


    The complaint is allowed in part. OP is directed to redeem the reward points worth of Rs.26,119/- and adjust the same towards the amount in due by the complainant with regard to the credit card in question and pay a compensation of Rs.2,000/-, litigation cost of Rs.500/-.

    This order is to be complied within four weeks from the date of its communication.

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    ORDER Speaking through Sri. H.M.Shivalingappa, Member.


    1.(a) This Complaint is filed on 12/01/2009 as per section12 of the Consumer Protection Act, 1986.

    Aggrieved by the alleged deficiency of service on the part of the Opposite Parties towards the Complainant, he has prayed for a direction to the Opposite Parties to pay a sum of Rs.1,50,000/- as compensation towards mental agony and sufferance and for awarding such other reliefs as this Forum may deem fit in the circumstances of the case.


    (b) The facts of the case in brief, are as follows: The Complainant is having an SB Account with the 1st Opposite Party bearing Account No.000201523933. He was having a Credit Card issued by the Opposite Parties with the Credit Card No.4477463845097001 and he has discontinued the said Credit Card since 17/09/2006 and from that day onwards, the Account balance shows NIL. As on 05/01/2008, the Complainant was having Rs.36,129.11 in his SB Account. According to the Complainant, as he wanted money for hospital purpose, he proceeded to withdraw money from his Account on 06/01/2008, 07/01/2008, 08/01/2008 & 09/01/2008 through A.T.M., but he received a message that his transaction has been declined. Further, his Account was showing a Debit balance of Rs.41,121.97 on 06/01/2008.


    As he was having sufficient balance in his Account on that date, he enquired about the same with the Opposite Parties, but did not get a proper reply from the Opposite Parties. However, he came to know from the Opposite Parties that the Debit entry pertains to drawal of a sum of Rs.95,527.08 from Credit Card No.4477474230229000, which Card number does not belong to the Complainant. On account of this wrong committed by the Opposite Parties, the Complainant’s Account was showing a Debit balance of Rs.42,121.95 on 06/01/2008. It is the further case of the Complainant that one of the Cheques issued towards a Loan transaction was also not honoured by the Opposite Parties and in turn, they have debited a sum of Rs.56.00 on 09/01/2008 to his Account. Since the Complainant was in dire need of money towards the hospital expenses on the respective dates, on account of wrong accounting and deficiency of service by the Opposite Parties, the Complainant had to suffer mental agony and sufferance. According to the Complainant, since the Opposite Parties have not discharged their duties prudently to their Customer-the Complainant, it amounted to deficiency of service.


    Thereafter, the Complainant got issued a Legal Notice dt.11/08/2008 to the Opposite Parties calling upon them to pay a sum of Rs.1,50,000/- as compensation for the mental agony and sufferance undergone by the Complainant. Inspite of receipt of the same, since the Opposite Parties did not come forward to comply with demand made therein, nor settled the matter, the Complainant has approached this Forum with this Complaint for the reliefs stated above.



    2. The matter came to be admitted on 19/01/2009. The Notices were ordered to the Opposite Parties for filing of their Version. On 04/03/2009 M/s J.S.Advocates filed Vakalath on behalf of the Opposite Parties 1 to 3. However, on all subsequent dates inspite of extending time to file Version on their behalf, no Version was made available by the Opposite Parties. Ultimately, on 23/03/2009, this Forum treated that there is no Version as such on behalf of the Opposite Parties and proceeded to direct the Complainant to produce his evidence by way affidavit and documents, if any. Accordingly, the Complainant has filed his evidence by way of affidavit on 02/04/2009. At the end, this Forum heard on merits.




    3. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are; (i) Whether the alleged deficiency of service by the Opposite Parties is established? (ii) Whether the Complainant is entitled for any relief in his favour ? (iii) What Order?



    4. Our Findings to these points are as hereunder: i) Yes, ii) Yes, iii) As per the operative portion of the Order here- below. 5. We shall strengthen our findings on the following: R E A S O N S POINT NO.1 (a):- From a perusal of the copies of the documents produced along with the Complaint such as Statement of Transactions in SB Account No.000201523933 standing in the name of the Complainant and the related ATM Statement slips dt.5/1/2008, 7/01/2008, 08/01/2008 and 09/01/2008, it is clear that the Complainant is an Account Holder of the Opposite Party Bank and was also holding an ATM Card issued by the Opposite Parties. However, the main grievance of the Complainant is that as on 05/01/2008, he was having a sum of Rs.36,129.11 in his said Account and when he wanted to withdraw the money from his Account through ATM on 05/01/2008, 07/01/2008, 08/01/2008 and 09/01/2008 at different intervals, he did not receive money, but a message was delivered in the ATM Counter to the effect “Transaction Declined”. Since, the Complainant wanted the money for hospital purpose he tried through ATM number of times but could not receive money though he was having sufficient balance in his SB Account.


    (b) At one stage, the Complainant has alleged that when he noticed Debit balance in his Account on 06/01/2008 he enquired with the Opposite Parties and came to know that a sum of Rs.95,527.08 had been drawn through Credit Card No.4477474230229000 but, that Credit Card does not belong to the Complainant. Further, when a cheque was issued by the Complainant towards a Loan transaction, that was also not honoured by the Opposite Parties and in turn they have debited a sum of Rs.56.00/- to his Account on 09/01/2008. However, there is no material made available by the Complainant as to the particulars of the cheque number, date and amount which was dishonoured, nor had the Complainant come forward with a plea that the said mistake has not been rectified till know, much less there is any prayer to that effect in this Complaint.


    (c) It is pertinent to mention that the Complainant has relied upon 12 ATM slips for having operated ATM at different timings on 05/01/2008, 07/01/2008, 08/01/2008 and 09/01/2008 but there is no ATM slip pertaining to date 06/01/2008. However, on a perusal of the contents of the copies of ATM slips and the contents of Statement of Transactions in SB Account No.000201523933 standing in the name of the Complainant, it is clear that inspite of their being sufficient amount at his Credit in the SB Account, the Opposite Parties are negligent in rendering the expected services to its Customer-the Complainant through their ATM Counter when the Complainant was intending to withdraw the money. The two ATM slips bearing dt.07/01/2008 of 20.42 hours and 13.29 hours show an endorsement to the effect “INSUFFICIENT FUND”. Ofcourse, the statement of Account shows sufficient fund in the Account of the Complainant as on that particular date and time. The Opposite Parties being a responsible Financial Service Provider, have failed to provide services diligently to its Customer-the Complainant. Hence, we are of the opinion that the Complainant has established deficiency of service on the part of the Opposite Parties within the ambit of the Consumer Protection Act, 1986, to the extent stated above. Accordingly, this point is answered in favour of the Complainant.



    6. POINT NO.2:- The Complainant has prayed for a direction to the Opposite Parties to pay a sum of Rs.1,50,000/- as compensation for the mental agony and sufferance to which he was put to on account of the acts of Omissions and Commissions on the part of the Opposite Parties and for awarding such other reliefs as this Forum deems fit to grant in the circumstances of the case. As per the finding on Point No.1, it is seen that the Opposite Parties were not diligent in rendering service to its Customer-the Complainant through their ATM Counter when the Complainant was in need of money. According to the Complainant, he was in dire need of money at that time for hospital purpose. This Statement of the Complainant made on oath remained un-challenged by the Opposite Parties. When the Complainant got issued a Legal Notice dt.11/08/2008 calling upon the Opposite Parties to comply with the demand made therein for deficiency of service, inspite of receipt of the same, the Opposite Parties did not bother to reply, nor settled the issue in question.

    On the other hand, the Complainant has been driven to this Forum to get his grievance redressed. Apart from the above, when Notices were served on the Opposite Parties calling upon them to produce their Version of the case, except making available Vakalath of their Advocate, no Version as such is made available in this case. In the circumstances, in view of our finding on Point No.1, we deem it proper to direct the Opposite Parties to pay a sum of Rs.10,000/- to the Complainant as compensation for the mental agony and sufferance to which he was put to on account of the acts of Omissions and Commissions on the part of the Opposite Parties.


    7. POINT NO.3:- In the result, we proceed to pass the following:



    O R D E R


    Since, the Complainant has established the alleged deficiency of service on the part of the Opposite Parties in not rendering service diligently to their Customer-the Complainant through their ATM Counter, we allow this Complaint and direct the Opposite Parties to pay a sum of Rs.10,000/- (Rupees ten thousand) to the Complainant as cost and compensation for the mental agony and sufferance to which he was put to. The Opposite Parties in this proceeding are granted 30 days time from this date to comply this Order.

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    1. This Complaint is filed on 11.12.2008 alleging that the Opposite Party-Bank (hereafter OP-Bank) remained deficient in rendering services to the Complainant touching the transaction referred to in the Complaint seeking certain reliefs which according to the Complainant, are appropriate. The Complaint in brief is as hereunder; The Industrial Credit and Investment Corporation of India Ltd., had provided a Bond to the Complainant bearing No.1393993. That Bond is styled as ASHIRWAD DEEP DISCOUND BON (OPTION-I).

    The OP-Bank has stepped into the shoes of that Industrial Credit and Investment Corporation of India Ltd. (ICICI Ltd.) That Bond was issued on 15th day of July 1996 and it was due on 15th day of July 2021. The Complainant had a Savings Bank Account also with OP-Bank. The Complainant was given to understand that the said Bond could be redeemed early.



    To the surprise of the Complainant, when she had been to the OP-Bank for some other purpose, the concerned representative of the OP-Bank informed the Complainant that the said Bond is closed and no amount is payable. It was a surprise to the Complainant to hear so. There was no intimation whatsoever to the Complainant regarding the pre-redemption of that Bond or its closure at any time by the OP-Bank. Hence, the Complainant had to correspond with the OP-Bank. However, the OP-Bank did not respond favourably and informed the Complainant that the Complainant failed to surrender the Bond inspite of notice and that on account of that failure, as per the provisions of law, the said Bond amount was credited to Investor Education and Protection Fund (IEPF) and the unclaimed redemption amount was to the tune of Rs.10,408/-. The OP-Bank had arbitrarily taken that decision for early redemption that too without informing the Complainant-Bond Holder. By their conduct, the amount payable to the Complainant is deprived-off. Hence, on account of the above conduct of the OP-Bank, the Complainant has been put to agony, sufferance and loss for no fault on her part. Accordingly, this Complaint is filed to direct the OP-Bank to pay Rs.10,500/- to the Complainant with interest and the cost of the litigation. Along with the Complaint, the Complainant has made available xerox copies of certain documents.


    2. On admission of the Complaint, the OP-Bank were called upon to produce their Version of the case. Accordingly, the OP-Bank made available their Version of the case on 21.2.2009 along with some documents marking them at Annexure-I to Annexure-VII. The defence of the OP-Bank in brief is as hereunder; This Complaint is a mis-conceived one. This Complaint is neither maintainable at law, nor on facts of the case. The allegation of deficiency of service is ill-founded. It is true the Complainant was holding one Bond of ASHIRWAD DEEP DISCOUNT BOND (OPTION-1) under Bond Holder No.1393993 issued by the ICICI Ltd. That ICICI Ltd., is merged with ICICI Bank Ltd., in the month of June 2002. Under that Bond, there was an option for early redemption of the Bond after 5 years from the date of allotment i.e., from 15.7.1996 and that the said option could be invoked by the Bond Holder or by the Issuer. Accordingly, the option was exercised by the Issuer and the said Bond was redeemed on 15.7.2001 at the deemed face value of Rs.11,000/-. As per the terms of the prospectus, notice for exercising early redemption option by the Issuer was published in the newspaper (Indian Express dt.12.1.2001). Apart from the same, Redemption Circular dt.5.5.2001 was also issued subsequently, reminders were issued on 12.10.2001, 26.2.2002, 21.11.2003, 11.5.2006 and 15.5.2008 through post to the Bond Holder. The Complainant Bond Holder did not come forward to surrender the concerned Bond. Subsequently through a notice, the OP-Bank had warned the Complainant that incase the original Bond Certificate is not returned, the amount of that Bond would be transferred to IEPF. Inspite of those correspondences, the Complainant failed to produce the original Bond. In the circumstances, the amount payable came to be deposited with IEPF. Nodoubt in the year 2008, the Complainant had contacted the OP-Bank in-connection with that redeemed Bond. All those correspondences have been duly met with by the OP-Bank.



    Inspite of the same, the Complainant has chosen to file this Complaint. In the circumstances, the Complainant is not entitled for any relief much less the relief sought in the Complaint. Accordingly, this Complaint has to be dismissed with the cost of the OP-Bank.



    3. Since a Consumer dispute arose, the parties were called upon to produce evidence. Accordingly, the Complainant had chosen to produce her affidavit on 11.3.2009 along with two documents and they are the original Bond touching the Complaint and the original allotment cum refund advise issued by the Industrial Credit and Investment Corporation of India Ltd., to the Complainant. Both those documents are dt.15.7.1996. For the OP-Bank, their authorized representative namely Harish Srivathsa.L., S/o Lakshmipathi has sworn to an affidavit which is made available in evidence on 23.3.2009. At the end, this Forum heard on merits. According to the Complainant, there was no intimation whatsoever from the OP-Bank regarding early redemption of the Bond in question. On the other hand, the OP-Bank have contended that the notice in that regard has been caused as per the Terms and Conditions touching that Bond and since the Complainant-Bond Holder did not approach them at the appropriate time, having no other option, they had to transfer the Bond amount to the concerned Authority namely, IEPF. Therefore according to the OP-Bank, there was no deficiency of service as such by them and this Complaint has no merits



    4. In the circumstances, the following points do arise for our consideration and decision and they are; (i) Whether the allegation of the Complainant that the OP-Bank remained deficient in rendering services to her touching the Bond in question is well-founded? (ii) Whether the Complainant is entitled for any relief in this case against the OP-Bank? (iii) What Order?



    5. Our Findings to these points are as hereunder: i) Yes ii) Yes iii) As shown in the operative portion of the Order here below. 6. We shall substantiate our findings on the following:


    R E A S O N S


    POINT NO.1: (a) As far as the status of the parties is concerned, there is no dispute. The fact that the Industrial Credit and Investment Corporation of India Ltd., had issued a Bond described as ASHIRWAD DEED DISCOUNT BOND (OPTION-1) on 15th day of July 1996 for Rs.2,00,000/- as per Certificate No.385071 to the Complainant, is not in dispute here. The fact that the said Industrial Credit and Investment Corporation of India Ltd., came to be merged with the OP-Bank namely ICICI Bank Ltd., in June 2002 is also not in dispute here.


    (b) Now let us advert our attention to that very Bond. That original Bond is made available by the Complainant along with the original Allotment cum Refund Advise. As revealed in that Advise, the amount paid on the Application was Rs.5,200/- and the amount adjusted on allotment was Rs.5,200/-.


    (c) As revealed in the said Bond, there is a provision for early redemption. Accordingly, four dates were provided for early redemption showing the deemed face value on that Bond. As per the same, the earliest date of redemption is 15.7.2001 and the deemed face value was Rs.11,000/-. Nodoubt, the period of that Bond was 20 years. However, the early redemption of that Bond have been so provided with option both to the Bond Holder and to the Bond Issuer. Admittedly, the Complainant did not opt for early redemption of that Bond. On the other hand, according to the OP-Bank, the Issuer-Corporation had opted for that early redemption. In the very same Bond among other terms and conditions, we find the aspect of notice. As per the same, all notices to the Bond Holder which are required to be given by the Issuer-Corporation or the Trustees, shall be deemed to have been given if the same published in one English and one regional language daily newspaper in Mumbai, Madras, Delhi, Calcutta, Bangalore and Baroda and may at the sole discretion of the Issuer Company or the trustees, but without any obligation, be sent by ordinary post to the original sole/first allottee of the Bond and individual notices to the Bond Holders will not be given.


    (d) In the context, the OP-Bank had taken up the contention that accordingly, notice regarding the early redemption was caused in the newspaper (Indian Express dt.12.1.2001). The OP-Bank nodoubt has made available a xerox copy of the relevant part of that newspaper in evidence here as Annexure-2 along with their Version. Alas ! the contents of the same are not easily readable since the letters are too small and under normal circumstances, it is not possible to read the contents of that notice. The letters as small as they could be. Under no stretch of imagination, in such a situation, it can be opined that the purpose of causing such a notice is served through such a publication. That apart, as per the mandate of the Bond, such a notice is required to be published also in one of the regional language daily newspapers. Where is the proof that it was so caused accordingly in the regional language by the Issuer Corporation? Wherefore, in the circumstances, it is our considered opinion that though there was such an option for early redemption to the Issuer of the Bond, there was no proper service of notice in that regard by the Issuer Corporation.



    (e) Nodoubt, the learned Counsel representing the OP-Bank drew our attention to a Statement dt.22.5.2008. It is styled as Bulk Register for ICICI Bonds 1996 and it is the one generated by the OP-Bank. It is a xerox copy and it has been marked by the OP-Bank at Annexure-IV. At the end of that Statement, we find the name of the Complainant-Bond Holder with her Registration Number. Placing reliance upon the same, the learned Counsel for the OP-Bank tried to impress upon this Forum that the OP-Bank had also caused individual notice to the Complainant in that connection. If that was really so, there would have been documentary proof by way of acknowledgement for having delivered such a notice to the Complainant. Quite surprisingly, the OP-Bank even after taking up such a contention, have not produced any acknowledgment including the postal acknowledgement for having delivered that notice to the Complainant. It is the very grievance of the Complainant that there was no such notice to her and she was totally kept in darkness regarding the same.

    The Complainant in the context had also submitted that she has a Savings Bank Account in the OP-Bank and that it was very much there at that time also and that she was operating it frequently and that if really there was such pre-redemption and notice, the OP-Bank would have informed her or atleast she would have come to know of the same some how or the other. Therefore, according to her, the very contention of the OP-Bank in that regard is a surprise to her. We have no reason to dis-believe the above contention of the Complainant especially in the light of the materials on record by way of evidence referred to supra. In the context, the Electronic Mail correspondences entered in between the parties also need be looked into. They are admitted correspondences. The Complainant has made available the copies of the same in evidence. One such correspondence is by way of a mail message dt.27.8.2008. It refers to the correspondence of the Complainant as Bond Holder bearing No.1393993 with them. In that response, the OP-Bank had requested the Bond Holder to submit an Application signed by her at any ICICI Bank Branch furnishing the informations sought therein and the Complainant had responded to the same, through the E-Mail dt. 11.9.2008 wherein she had recited that she had sent all the details by courier service. Significantly, we find copies of two E-Mail responses of the OP-Bank to the Complainant and they are of the same date namely, 27.8.2008. However, the timings are different. The first one is issued on 9.14 a.m. and the next one is caused at 11.09 a.m. In the response sent at 9.14 a.m., the OP-Bank has given the details regarding the fate of that Bond and in the E-Mail response sent subsequently at 11.09 a.m. strangely, they have called upon the Bond Holder to submit an Application. These two responses remain irreconcilable. There is no explanation whatsoever by the OP-Bank in that regard.



    (f) It may be if the original Bond is not surrendered by the Bond Holder in the light of the early redemption of the Bond, the amount payable has to be credited to the IEPF after the lapse of seven years from the date when it became payable. However, the basic requirement is, to cause a notice in that regard to the Bond Holder and there cannot be any hide and seek. If a notice is caused in any newspaper which has no circulation in the place where the Bond Holder recites, what is the use of causing such a notice? Secondly, why an individual notice was not caused properly? Thirdly, why no information was given to the Bond Holder even though she used to visit the Branch of the OP-Bank quite frequently for the operation of her S.B. Account with them? In this case, what we feel is, the very purpose of such a notice has been defeated by the Issuer Corporation or by the OP-Bank. Fourthly, as revealed in the very Bond itself, there is no signature as such by the Bond Holder in that Bond. Fifthly, the Terms and conditions so recited in the said original Bond cannot be read easily because of the smallness of the size of the letters.




    (g) Nodoubt, the OP-Bank has made available certain documents marking them at Annexure-1 to 7 along with the Version and they have been referred to in the affidavit of the Deponent who has sworn for the OP-Bank. Those documents do contain copies of certain reminders said to have been sent by the OP-Bank calling upon by the Complainant to surrender the original bond for the purpose of encashment. However, there is no evidence to infer that the so-called reminders have been served on the Complainant. It is the very case of the Complainant that there was no such service of notice or reminder at all. If really any of those reminders for that matter, has been served on the Complainant as sought to be projected by the OP-Bank, certainly there could not have been any better reason for the Complainant to withhold the concerned Bond without surrender because, it is against the normal course of human conduct. At one breath, the OP-Bank has contended that what was required to be caused is a notice through publication in the newspapers. If that was really so, why those reminders have been so sent even according to the OP-Bank? If really there is any scrap of evidence to probabilise that the Complainant-Bond Holder has been duly notified regarding the pre-redemption and also regarding the surrender of the original bond, certainly we could have appreciated the contention of the OP-Bank, that for the omission of the Complainant, there could be no justification in blaming them (OP-Bank). But here it is not so.


    (h) Nodoubt, the learned Counsel representing the OP-Bank highlighted Sec.205C of the Companies Act 1956 which refers to the transfer of unclaimed and unpaid redemption amount to the IEPF of the Government of India after 7 years from the date when it became due for payment. But, where is the evidence on record to infer that the amount pertaining to the Bond in question in a sum of Rs.10,408/- has been so transferred to IEPF by the OP-Bank? Nodoubt, in the Version of the OP-Bank and also in the affidavit so made available by the OP-Bank, there is a recital to the effect that the said amount has been transferred on 15.7.2008. However, where is the proof that has been so transferred and the said amount is lying with the IEPF?




    (i) Wherefore in the circumstances, we are of the considered view that the OP-Bank was answerable to the claim of the Complainant-Bond Holder in respect of the bond in question and that their failure atleast to make that redeemed amount of Rs.10,408/- to the Complainant inspite of her requests, would certainly probabilise that the OP-Bank remained deficient in rendering services to the Complainant within the purview of the Consumer Protection Act, 1986. Accordingly, this point is answered.



    7. POINT NO.2: The Complainant has claimed the amount payable under that Bond with interest and cost of this litigation. In the circumstances, it is but proper to hold that the above claim is justceable. The OP-Bank must have been benefited by the retention of that amount with them right from the year 2001. Wherefore, award of interest at a reasonable rate on the amount to be refunded would meet the ends of justice. Further, for having driven the Complainant to this litigation, the OP-Bank has to bear the cost of the Complainant in this litigation to a reasonable extent. Quite rightly, the Complainant has not claimed any definite amount as such in that regard and that has been left to the discretion of the Forum. Award of interest at 6% p.a. on the amount of Rs.10,408/- to be refunded to the Complainant from the date of redemption i.e. from 15.7.2001, till payment and cost of litigation in a sum of Rs.1,000/- in the circumstances would be reasonable. Accordingly, this point is answered.


    9. POINT NO.3: In the result, we proceed to pass the following: ORDER The alleged deficiency of service by the OP-Bank since established, the OP-Bank is directed to pay a sum of Rs.10,408/- (Rupees ten thousand four hundred and eight) being the amount to be paid to the Complainant-Bond Holder along with an interest at 6% p.a. right from 15.7.2001, till payment. In addition to the same, the OP-Bank shall pay a sum of Rs.1,000/- (Rupees one thousand) by way of cost of this litigation. The OP-Bank is granted 30 days time from this date to comply this Order and report compliance positively.

  11. #26
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    Sri Rupendra Kumar Debta, S/o Rudra Nayayan Debta, W.No.1, Bhatli Chowk, Law College Road, At/Po/ Dist. Bargarh. ... ... ... Complainant.

    • V e r s u s -

    ICICI Bank Ltd, represented through its Branch Manager, Sambalpur Branch, Paradise Chamber, Ainthapali, Road, Bhudharaja, Po/Ps/Dist. Sambalpur.

    ... ... ... Opposite Party.






    Dt. 14/05/2009 -: J U D G E M E N T :-
    Presented by Sri G.S.Pradhan, President.
    The petitioner has purchased a Tractor bearing it's Regd. No. OR-17-D-1256 for a sum of Rs.2,22,950/-(Rupees two lakh twenty two thousand nine hundred fifty)only being financed by the I.C.I.C.I. Bank which is to be payable in 35(thirty five) monthly equal installments of Rs.6,370/-(Rupees six thousand three hundred seventy)only each. The petitioner has already paid a sum of Rs. 1,97,560/-(Rupees one lakh ninety seven thousand five hundred sixty)only inclusive of interest out of the finance amount leaving a balance of Rs. 25,390/-(Rupees twenty five thousand three hundred ninety)only as on Dt. 28/08/2008. The Petitioner has paid one advance installment of Rs. 6,370/-(Rupees six thousand three hundred seventy)only at the time of finance of the vehicle to the agent who assured to adjust this installment at the time of final payment. After deducting this advance installment from the balance of Rs.25,390/-(Rupees twenty five thousand three hundred ninety)only, the Petitioner has already paid a sum of Rs.19,020/-(Rupees nineteen thousand twenty)only on Dt.20/09/2008 vide MR NO. 2713958. When on Dt. 28/08/2008 the Complainant asked the Opposite Party to close the account by depositing the balance amount, the Opposite Party handed over a statement showing Rs. 57,136/-(Rupees fifty seven thousand one hundred thirty six)only (which includes bouncing charge of cheques) as balance to be paid by the Complainant.


    The Petitioner claims that the due date of payment of installment was 23rd of each month where as the cheques have been bounced on Dt. 17/02/2006, Dt.02/03/2006 intentionally to harass the Complainant. Further the Opposite Party has charged over due charges on the payment already made vide demand draft No. A/275700 for Rs. 6,370/-(Rupees six thousand three hundred seventy)only Dt.24/01/2006.


    The Petitioner claims that he has already cleared up all the financed amount and the Opposite Party has unnecessarily trying to penalise the Complainant by claiming unnecessary charges is amounts to deficiency in service by the Opposite Party, I.C.I.C.I, Bank.



    The Petitioner prays for a direction to the Opposite Party to issue No Objection Certificate against the finance amount to the Complainant.


    In its version the Opposite Party denied to have cause any deficiency or negligence in service towards the Complainant and so also denied all other allegation made by the Complainant.


    The Opposite Party contends that, the loan was advanced to the Complainant on the strengh of an agreement between the Bank and the Complainant. All charges as agreed upon by the borrower in the said agreement are being collected as and when or the case they become due. The Complainant has defaulted to make payment of the installments on the due dates and that many cheques issued by him have been dishonored by his banker. Where upon cheques bouncing and over due charges, as admissible under the agreement, have been debited to the account of the Complainant.



    Further the Opposite Party contends that the disputes arises out of a contract executed between the parties at the time of availing loan, the same should be raised only before the competant authority as agreed in the agreement.



    There has been no negligence or deficiency in service on the part of the Opposite Party and prays for dismissal of the case.


    Perused the complaint petition, Opposite Party's version as well as the copies of documents filed by the Parties. Financed of Tractor bearing No. OR-17-D-1256 for a sum of Rs. 2,22,950/-(Rupees two lakh twenty two thousand nine hundred fifty) only including interest by the Opposite Party to be paid in 35(thirty five) equal monthly installment Rs.6,370/-(Rupees six thousand three hundred seventy)only is not disputed by the Parties. Further it is also not disputed that the Complainant has already clear up almost all the loan amount to the Opposite Party. The only dispute in this case is that the Opposite Party has illegally with out any cause claimed the cheque bouncing and over due charges.



    Copy of payment schedule, seventeen numbers of copy of payment receipt and copy of Bank Statement has been filed by the Complainant to prove its case. It is evident from the copy of documents that the Complaint has already cleared up all the finance amount with interest to the Opposite Parties. The Opposite Party contends that the Complainant has defaulted to make payment of the installments on the due dates and that many cheques issued by him have been dishonored by the banker, where upon cheque bouncing and over due chages as per the agreement have been debited to the account of the Complainant. The Opposite Party has not specify the number of cheques have been dishonored for which he claims excess money. No any copy of agreement have been filed by the Opposite Party to prove his case. The Opposite Party has illegally shown the cheque Dt.25/10/2005 to be bounced though there was a balance of Rs. 7,102/-(Rupees seven thousand one hundred two) only in his account and claimed cheque bouncing charges.


    In view of above fact and circumstances of the case, the Complainant has already cleared up the finance amount as such he is entitled to get a “No Objection Certificate” against the above finance.


    Complaint allowed and ordered.
    The Opposite Party, I.C.I.C.I. Bank is directed to issue a “No Objection Certificate” against the finance amount in favour of the Complainant and pay a sum of Rs. 1,000/-(Rupees one thousand)only towards the cost of the case within 30(thirty) days hence.

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    Satish Kumar son of Sh. Mehar Singh, resident of VPO Jheol, Tehsil Dharamshala, District Kangra (HP)

    Complainant Versus

    1. ICICI Bank Ltd. through its Manager, ICICI Bank, Towers Bandra, Kurla Complex, Mumbai 400051
    2. ICICI Home Finance Limited, through its Manager, IInd Floor, Chaman Complex Shri, Bazar Mandi, District Mandi (HP)
    3. ICICI Bank Ltd. through its Branch Manager Maranda, Tehsil Palampur, District Kangra (HP)




    ORDER
    A.S.JASWAL, PRESIDENT (ORAL)

    In nut-shell, the case of the complainant is that he had purchased one motorcycle Hero Honda Super Splendor on dated 21.10.2005 and that on the allurement of one Sh. Anil Sharma, agent of the opposite parties, the same was financed from them for Rs.44,100/-. A margin money of Rs.14000/- had been paid by him to the opposite parties. The financed amount was agreed to be paid in 36 equal instalments of Rs.1080/-each. The grievance of the complainant is that on 12.9.2006, the opposite parties, without any notice and information had re-possessed the motor cycle after breaking its from his house. Thereafter, he had contracted the opposite parties who told that there was default in making the payment of installments. Upon this, he had arranged Rs.6000/- and requested the opposite parties to give back the possession of the Motor cycle, but they refused to accept the said payment and that they had disposed of the vehicle after receiving the amount of Rs.22640/-. In this manner, the opposite parties have committed deficiency in service.


    2. The opposite parties did not file reply despite opportunities granted by this Forum and consequently, the defence of the opposite parties had been struck off by the order of this Forum on dated 6.6.2008.



    3. We have heard the learned counsel for the parties and have also gone through the record of the case carefully and minutely.
    3. Both the parties, adduced evidence by way of affidavits and annexures in support of their contentions. The following points arise for determination:-
    1. Whether O.Ps committed deficiency in service, as alleged? OPC
    2. Final order



    4. For the reasons to be recorded hereinafter while discussing the points for determination, our findings on the aforesaid points are as under:-
    Point no.1: No
    Final order: The complaint is dismissed as per operative part of the order
    REASONS FOR FINDINGS
    POINT No.1


    5. Learned counsel for the complainant has argued that the opposite parties have illegally and forcibly, without giving an opportunity of being heard, taken the possession of Motor cycle of the complainant from his house by breaking the lock of his vehicle. He further argued that even the opposite parties had disposed of the said Motor cycle without the consent of the complainant. Thus, the opposite parties have committed deficiency in service.



    6. On the other hand, learned counsel for the opposite parties has argued that the complainant has made huge defaults in the payment of installments of loan amount and that due to his inability to pay the monthly instalments, he himself had surrendered the motor cycle before the opposite parties. Thus, there is no deficiency in service on the part of the opposite parties.



    7. So far as the deficiency in service on the part of the opposite parties is concerned, the complainant has failed to prove the same by leading cogent and convincing evidence. The contention of the complainant that the opposite parties by breaking the lock of the motor cycle had taken its possession is concerned; it is not supported by any cogent and convincing evidence. Had the Motor cycle been taken by the opposite parties by breaking the lock, the complainant would have lodged a criminal complaint against them, but in the present case, there is nothing on record to prove that the complainant had ever lodged a criminal complaint against the opposite parties. No doubt, the complainant has tried to prove that the Motor cycle had been taken by the opposite parties by breaking its lock, by tendering the proof affidavit of Sh. Vivek Kumar, Ex.CW1, but his deposition is not helpful to the complainant, due to the reason that in his pleadings, the complainant has not mentioned that his Motor Cycle had been taken by the opposite parties by breaking its lock in the presence of aforesaid Vivek. It is well settled law that a party who seeks relief must come to the court with clean hands. In the present case, from the pleadings, as well as annexures placed on record, it is abundantly clear that the complainant has not approached this Fourm with clean hands and has suppressed material facts. The complainant has placed on record, Annexure C-2 Post sale letter, written by the opposite parties to the complainant. Its perusal goes to show that when the complainant failed to pay the outstanding amount and that when they had issued said letter/notice to him, he had filed the present complainant before this Forum to escape for his liability.



    8 Further, the material on record goes to show that there is a dispute between the parties, qua settlement of accounts, which cannot be decided by this Forum in a summary manner, as it requires elaborate and detailed inquiry by a civil Court. It has been held the Hon’ble National Consumer Disputes Redressal Commission, Delhi, reported in 1998(2) CLT-502 titled as Vishal Roadways versus Economic Traders (Gujarat) Ltd, that a case of settlement of accounts did not fall within the ambit of Section 2(1)(c) and (e) of the Act and that a civil suit was the proper remedy to recover the amount paid in excess. It has also been held by the Hon,ble M.P. State Consumer Disputes Redressal Commission, Bhopal, reported in 1995(1) CLT-6 titled as Parbhat Agro Versus Allahabad Bank, Gwalior, that when the case involves bulky documentary evidence, maintenance of accounts, Irregularities and where a case involves complicated question of fact requiring detailed examination and cross-examination of several witnesses and necessitates also the scrutiny of books of account and the settlement of accounts between the parties, the more appropriate remedy to be resorted to by the parties is to approach a Civil Court for adjudication of such issues. We are of the view that the complainant has the best remedy to approach a civil court for the redressal of his grievances.



    9. In view of discussion made hereinabove, we are unable to hold that opposite parties have committed deficiency in service. Hence, point No.1 is answered in negative.



    10. No other point argued or urged before us.
    Relief


    11. In view of our findings on point No.1 above, the complaint is dismissed

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    Amarjit Singh son of Sh. Gurdev Singh c/o Manko Fastners, 10235, Street no.6, Janta Nagar, Bhagwan Chowk, Ludhiana.

    ….Complainant.

    Versus



    1- The Branch Manager (Credit Card Department), ICICI Bank Ltd., 2nd Floor, S.D. Tower, Community Centre, Secgor-8, Rohni, Delhi-110 085.

    2- M/s ICICI Bank Limited, SCO 137, 2nd Floor, Feroze @@@@hi Market, Ludhiana through its Branch Manager. ….Opposite parties.


    O R D E R


    1- Complainant, who had current account with opposite party no.2 bank, obtained credit card facility from opposite party no.1, through courtesy of opposite party no.2. He was issued credit card bearing no.5177194157964005. The card was used by the complainant from time to time. The amount usage of the card, was automatically deducted from his current account by the opposite parties, but despite it, they continued to charge interest from the complainant every month, in addition to arbitrarily, withdrawing EMIs from his current account. Therefore, he got his auto debit facility withdrawn and intimated opposite party accordingly. Then started depositing the amount in cash against usage of the card, but opposite arty charged Rs.250/- as auto debit return fee from his account. Last statement of opposite party dated 10.6.2007 showed balance of Rs.31466.46p from the complainant. Though, on 9.6.2007, opposite party had received cash payment of Rs.1440/- and confirmed the complainant that his account stands settled and he need not make any further payment. As per his usage, he had effected purchases worth Rs.31770/- through his credit card against which payment of Rs.34135.40 was received by the opposite party from him. Whenever, he used credit card, had sufficient funds in his account and opposite party could have withdrawn the amount from his account. But they cheated the complainant, by practicing fraud. Grievances of the complainant now in this complaint u/s 12 of the Consumer Protection Act, 1986, is also that opposite party has seized his saving account, which has outstanding balance of Rs.21612/- and they have put lien on his account. Therefore, claimed directions against opposite party, to release his current account and also issue no due certificate regarding his credit card and pay him compensation of Rs.50,000/- for causing harassment and Rs.5000/- as litigation costs.



    2- Opposite party pleaded in reply that complainant is guilty of distorting the facts and not disclosing true facts. As per agreement by the complainant with opposite party, he had agreed to create lien on his bank account, in case he fails to make payment of due amount of the credit card. This such term and condition was clearly explained to him, while obtaining credit card facility and signing the agreement form. So, they have not done anything illegal. Averred that there was outstanding balance of Rs.45534.07p, payable by the complainant to opposite party, which he failed to pay, despite repeated requests and reminders. So, in compelling circumstances, the bank was forced to put lien on his bank account. He by such act, never suffered any loss. Because by that mode, he paid only that amount, which was payable by him. The bank withdrew amount from his account, as he failed to clear his liability, to pay the amount due to use of credit card. They have only withdrawn Rs.21612/- from saving account of the complainant and still a balance of Rs.24202.97p remains payable by him. There was no negligence on their part, nor were they guilty of rendering deficient services to the complainant. Complaint is based on false and frivolous allegations and the same deserves dismissal.



    3- Both parties adduced evidence by way of affidavit and documents. We have heard the ld. counsel for parties and have scanned the documents and other material placed on file.



    4- Outrightly, we may say that parties would be governed by terms and conditions of agreement Ex.R5, under which complainant had obtained credit card facility from the opposite party bank. Ex.R1 is copy of application of the complainant, for credit card and while obtaining the same, had given declaration. Complainant had adopted HPCL Silver type of credit card, by ticking the same. Vide agreement, it was agreed that minimum amount due is 15% for true value card and 5% otherwise. As the complainant had not taken true value card, but HPCL Silver, so minimum amount, due in his case, would have been 5%.



    5- It is explained by opposite party that 5% of the amount was reflected in all payment due statements of the complainant and only that amount was auto debited from account of the complainant. This aspect is born out from statement Ex.C2 dated 30.3.2005. Total amount due is shown as Rs.10161/- and payment of amount due Rs.508.05. This amount through auto debit, was reflected to have been received from the complainant in next statement Ex.C3 dated 10.4.2005. Amount of Rs.518.03 reflected in statement Ex.C1 dated 10.2.2005, was credited in his next bill Ex.C2. Likewise, in all statements Ex.C4 to Ex.C29, the amount shown as payment of amount due, was reflected in the next month’s statement, having received through auto debit from account of the complainant. The amount received through auto debit, is not more than 5% of the bill. It is this 5% which could have been auto debited by the opposite party against total bill of the complainant. Therefore, they have not infringed terms of the agreement.



    6- Grouse of the complainant is also that one time settlement was made by paying Rs.1440/- on 9.6.2007 to the opposite party. Opposite party in his statement Ex.C29 dated 10.6.2007, had shown receipt of such payment from the complainant. But there is nothing on record that such payment of Rs.1440/- was made by the complainant, as one time settlement. Because that bill Ex.C29 shows total amount due Rs.31466.46 from the complainant against which, made payment of Rs.1440/-. Rightly contended that had there been one time settlement, offering complainant to settlement amount on Rs.31466/-, for Rs.1440/- only, there would have been offer in writing by the opposite party, as they had done vide Ex.R8, in case of one Rohit Aggarwal. No such consent was ever given, to settle the amount for Rs.1440/- only. Allegations qua it, are wrong and false by the complainant.


    7- Also there is nothing to sustain allegations of the complainant that he had withdrawn auto receipt facility from opposite party. In these circumstances, we feel that there is no merit in the complaint and the same is therefore, dismissed.

  14. #29
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    Satish Kumar S/o Sh. Pawan Kumar Singla, R/o House No.2225, Madhuban Street, Amrik Singh Road, Near Lottery Market, Bathinda.


    .... Complainant


    Versus


    1. ICICI Bank Ltd., Bibiwala Road, Bathinda through its Branch Manager.
    2. ICICI Bank Ltd., ICICI Bank Phone Banking Centre, PO Box No. 20, Banjara Hills P.O., Hyderabad-500034(India) through its Manager.
    3. ICICI Home Finance Co. Ltd., Auth. ICICI Bank Ltd., R.O Land Mark, Race Course Circle, Vadodara 390007 through its Manager.
    4. ICICI Lombard General Insurance Company Ltd., UIT Office 10, 2nd Floor, Sector 40B, Chandigarh through its Manager.
    ..... Opposite parties


    O R D E R.

    1. Satish Kumar complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') with the allegations that he obtained a credit card from opposite party No. 1, but he did not use the same at all.


    He received one SMS in the second week of October, 2007 on his mobile whereby he was required to pay an amount of Rs. 25,689/- against policy of Lombard (opposite party No. 4), whereas infact he never applied for any such insurance policy from any of the opposite parties. He approached the officials of opposite party No. 1 at Bathinda and apprised them that he has not taken any insurance policy and therefore, he is not liable to pay any amount on account of the demand. However, they insisted for the payment of Rs. 25,689/-. He moved an application to the opposite parties asking for statement of his account, but it was not furnished to him and officials of Bank continued to pressurize him to pay the said amount.

    He claimed that the demand of Rs. 25,689/- is illegal, null and void, arbitrary, unconstitutional and against the principles of natural justice as he is not liable to pay the same. He has claimed the quashing of the demand and in addition to that, he has claimed an amount of Rs. 20,000/- as compensation for mental agony, tension and harassment caused to him by the opposite parties by putting illegal demand of the amount as referred to above. He also claimed an amount of Rs. 10,000/- on account of forced litigation expenses.


    2. Opposite parties No. 1 to 3 have not contested the complaint and they were proceeded against exparte. However, opposite party No. 4 filed reply raising inter-alia preliminary objections that the complaint has been filed on false, frivolous and vexatious facts which is liable to be dismissed with special costs; the complaint is involved with intricate questions of law and facts and therefore, falls within the jurisdiction of civil court.

    The Consumer Forum cannot decide the controversy between the parties in summary manner; the complainant is guilty of concealing material facts and documents and as such, he is not entitled to equitable relief under the provisions of Consumer Protection Act; the complainant has no locus-standi and cause of action against opposite party No.4 and the complaint is not maintainable in the present form. On merits, the allegations of the complainant are not admitted as correct. It is asserted that no relief has been claimed against opposite party No.4. As per averments of the complainant, demand of Rs. 25,689/- is related to opposite parties No. 1 to 3.

    The complainant has not disclosed the date and amount demanded or deducted by opposite parties No. 1 to 3 against his credit card. However, opposite party No. 4 pleaded that as per the record available, the complainant took one insurance policy in the name of one Anita Satish bearing No. 4034/FNP/00517505/00/000 for the period 1.3.2006 to 28.2.2007 against payment of premium of Rs. 5,580/- renewable by 28.2.2008 against subsequent payment of premium. Opposite party No. 4 further claimed that complainant never approached them nor moved any application for redressal of his grievances. The demand raised by opposite parties No. 1 to 3 is not illegal, null and void, arbitrary or unconstitutional.



    3. Both the parties to prove their respective assertions led their respective evidence. Complainant filed his affidavit dated 21.1.2009 Ex.C.1, copy of his credit card issued by opposite party No.1 Ex.C.2, copies of letters dated 30.10.2007, 19.10.2007 and 23.1.2008 Ex.C.3 to Ex.C.5 respectively and photocopy of postal receipt Ex.C.6.


    4. Opposite party No. 4 filed in evidence affidavit dated 3.3.2009 Ex.R.1 of Sh. Ravinder Dhull, Manager (Legal), telephonic conversation with a representative of opposite party No 4 and complainant Satish Kumar recorded in C.D Ex.R.3, copy of conversation is Ex.R.2 and copy of insurance policy Ex.R.4.


    5. We have heard the learned counsel for the complainant and opposite party No.4 and gone through the entire record of the case carefully.



    6. Learned counsel appearing on behalf of complainant has vehementally argued that no cogent and convincing evidence has been brought on the record by the opposite parties to prove that infact the complainant ever made any contract with any of the four opposite parties for an insurance policy of Lombard (opposite party No.4) in the name of his wife on making a telephonic call to the representative of opposite party No 4 and agreed to pay the premium through his credit card bearing No. 5177 1942 0465 0003 which complainant obtained from opposite party No.1. Learned counsel also contended that the telephonic conversion in the form of C.D Ex.R.3 brought on the record is not proved in accordance with law.

    The copy of the conversion recorded in C.D Ex.R.3 typed out and placed on the record as Ex.R.2 is also not proved in accordance with law as the person with whom complainant had allegedly made conversion on telephone for the purchase of the insurance policy has not been examined no he has authenticated the telephonic conversion translation Ex.R.2. The learned counsel also urged that since the demand put forward by opposite party No. 1 by sending a SMS was illegal, null and void, without any basis or contract between the complainant and any of the opposite parties and for this reason, opposite parties No. 1 to 3 have not come forward to contest the allegations of the complainant and they have been proceeded against exparte.


    7. The learned counsel for opposite party No. 4 vehementally controverted the arguments put forward by the learned counsel for the complainant and he urged that the complainant had himself agreed on telephone with the representative of opposite party No. 4 for insurance policy in the name of his wife and the conversation was duly recorded in C.D Ex.R.3 which has been placed before the court in translated form Ex.R.2 and in view of the affidavit Ex.R.1 of Sh. Ravinder Dhull, Manager (legal) of opposite party No. 4 and Ex.R.2 & Ex.R.3, opposite party No. 4 has been able to prove that insurance policy Ex.R.4 was issued in favour of Smt. Anita Satish Kumar, wife of the complainant and he cannot escape his liability to pay the amount at this belated stage.


    8. We have considered the rival contentions of both the sides as referred to above and also perused the record. The record reveals that the complainant took up the matter immediately with opposite party No. 1 when he received a demand of Rs. 25,689/- through one SMS in the second week of October, 2007 vide letter dated 19.10.2007 Ex.C.4 wherein the complainant has specifically mentioned that he received a SMS and it is noted that bank is demanding a sum of Rs. 25,689/- from him against insurance policy (Lombard) while he has never given his consent for any such insurance in reality. It is a matter of great shock and surprise for him. This letter was received by opposite party No. 1 and also replied to vide letter dated 30.10.2007 Ex.C.3. Opposite party No. 1 took no cognizance seriously. Rather, complainant was informed that the letter received was unsigned and therefore, complainant was requested to send them a signed letter regarding his concern.
    The fact raised by the complainant that the demand of the bank of Rs.25,689/- from him against insurance policy (Lombard) while he had never given his consent for insurance in reality, it is a matter of great shock and surprise for him, has not been refuted as false by opposite party No. 1 in letter of their reply Ex.C.3 dated 30.10.2007. Complainant further wrote a letter dated 23.1.2008 Ex.C.5 to opposite party No. 2 with the same facts as referred to in his letter Ex.C.4, but this was also not replied to and therefore, the complainant had to file the present complaint for his redressal.


    9. As per the reply filed by opposite party No.4, the demand of Rs. 25,689/- is related to opposite parties No. 1 to 3 meaning thereby that opposite party No.4 never raised any such demand from the complainant for payment of any premium against insurance policy.
    The telephonic conversion C.D Ex.R.3 is not proved as opposite party No. 4 has not taken any trouble to prove the conversion recorded in C.D Ex.R.3 to prove the voice of the complainant. It was incumbent upon opposite party No. 4 to prove the voice of the complainant by leading expert evidence on the subject, especially under the circumstance where the complainant has denied any such conversion. The translated version of the conversation which is placed on the record as Ex.R.2 is also not proved because the lady officer who is stated to have had conversation with the complainant never attested Ex.R.2 nor she is examined as a witness by opposite party No.4.


    10. Opposite parties No. 1 to 3 since proceeded against exparte. They have neither filed any reply nor produced any evidence.


    11. In view of the facts, circumstances and the evidence of the complainant and opposite party No. 4, as has been discussed here-in-above, we have no hesitation to conclude that the demand of Rs. 25,689/- through a SMS by opposite party No. 1 on behalf of opposite party No. 4 from the complainant against insurance policy of Lombard (opposite party No.4) has been made without any legal and enforceable contract between the complainant and any of the opposite parties, and therefore, this demand is illegal, null and void.


    12. It also appears from the correspondence placed on the record by the complainant especially letter dated 19.10.2007 Ex.C.4 and letter dated 23.1.2008 Ex.C.5 that the complainant before filing the present complaint made efforts to settle the dispute, however, opposite parties have shown their adamant attitude and therefore, complainant had to approach this Forum for his redressal and therefore, he is entitled for litigation expenses as well.


    13. For the reasons recorded above, we accept the complaint and direct opposite parties not to proceed with demand of Rs.25,689/- from the complainant against the insurance policy of Lombard (opposite party No.4). The demand, if any, put forward stands quashed as unen forceable. Opposite parties are further directed to pay a sum of Rs.500/- to the complainant on account of litigation expenses.


    14. The compliance of this order be made within a period of 45 days from the date of receipt of its copy.

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    Default ICICI Bank

    Sh. Ankush Singla S/o Sh.Raj Kumar Singla S/o Sh.Ruldu Ram, Proprietor M/s Maa Chintpurni Auto Fuels, Talwandi Sabo Road, Mansa, Tehsil and District Mansa.


    ..... Complainant.

    VERSUS

    1. ICICI Bank Limited, Bibiwala Road, Bathinda, through its Branch Manager.

    2. ICICI Bank Limited, Shimla Complex, Water Works Road, Mansa, through its Branch Manager.
    ..... Opposite Parties.


    ORDER:-


    The instant complaint has been filed by Sh. Ankush Singla son of Sh.Raj Kumar Singla, a resident of Mansa, against ICICI Bank Limited, through its Branch Manager at Bathinda and Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for giving them direction for crediting the amount deducted from his account and for making payment thereof alongwith interest at the rate of 12 percent per annum from the date of opening of account till the date of actual

    Contd........2
    : 2 :

    payment and for payment of compensation in the sum of Rs.50,000/- for mental and physical suffering and Rs.10,000/- spent by him for the completion of formalities to avail credit facility, with any other relief deemed fit by this Forum.


    2. Briefly stated, the case of the complainant is that he is carrying on business in the name and style of ' M/s Chintpurni Auto Fuels', Talwandi Sabo Road at Mansa. The complainant has opened current Account No. 016305001173 in the name of his firm. After making inquiries about its operation from the officials of the opposite parties, he deposited a sum of Rs.25,000/- in his account, whereas officials posted in the office of the opposite parties gave him assurance to sanction the Cash Credit limit in the sum of Rs.20 lacs. As such, complainant is consumer qua the said account maintained by him as proprietor of his firm and has right to invoke the jurisdiction of the Consumer Forum.

    The complainant spent an amount of Rs.10,000/- on the assurance given by the opposite parties for availing credit facility for his firm, but they went on harassing him by seeking one document or the other. Even the approved valuer of the opposite parties visited the firm of the complainant, but thereafter they failed to issue the credit facility despite repeated visits of the complainant to their office for a continuous period of six months. The opposite parties also refused to supply the copy of statement of account of his firm to the complainant on the pretext that no transaction has been carried out in the said account by him on regular basis before the account was transferred from their branch situated at Bathinda to their branch carrying on business at Mansa .

    The complainant visited the office of the opposite parties at Mansa to ascertain the balance outstanding in his account a fortnight before the filing of the instant complaint. He was surprised to know from the officials of the opposite parties that an amount of Rs.44,351.60 is outstanding towards him as on 31.3.2008. The officials of the opposite parties asked him to deposit the said amount and future charges till


    Contd........3
    : 3 :

    regularization of the account without assigning any reason, as such, there is deficiency in service on the part of the opposite parties and they have adopted unfair trade practice, because of which complainant has been subjected to mental and physical harassment. Hence this complaint.



    3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that it is not maintainable as account has been opened by the complainant in the name of his firm which is a commercial establishment as it its turn over runs into crores and as per duly audited income tax returns, huge profits are earned by the firm of the complainant, who has employed more than ten employees; that account has been opened by the complainant in the name of his firm for commercial purposes, as such, he is not covered by the definition of a consumer under the Act; that parties need to lead elaborate evidence to prove their respective stand, as such, complaint cannot be decided by the Forum; that complainant has not approached the Forum with clean hands and has filed the complaint concealing material facts from its knowledge and complaint is barred by limitation.

    On merits, it is submitted that officials of the opposite parties never gave any assurance to the complainant to grant limit of Rs.20 lacs, but he has opened the account in the name of the firm himself. The facum of deposit of amount by the complainant in the account of his firm is not denied and it is submitted that statement of account was supplied to the complainant, like other customers, as and when demanded by him free of costs. It is submitted that complainant always used to confirm the balance in his account and has affixed his signatures on the schedule of charges agreeing to maintain average balance in his account to the tune of Rs.2,50,000/-.


    He further agreed that in case he fails to to do, then he shall be liable to pay a sum of Rs.12,000/- every quarter. It is contended that, as the complainant failed to maintain minimum balance, therefore, an amount of Rs.75,358/- is outstanding towards him. It is denied that there is any deficiency in service


    Contd........4
    : 4 :

    on their part. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.




    4. On being called upon, by the Forum, to do so, the counsel for the complainant, tendered in evidence, his affidavit Ext.C-2 and copies of documents Ext.C-2 to C-8 and closed evidence. On the other hand, the defence of the opposite parties was truck of vide order dated 25.3.2009 after their counsel failed to lead any evidence or to close the same in terms of order dated 20.2.2009 giving them last opportunity.


    5. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by the complainant alone, carefully, with his kind assistance.


    6. At the out set, learned counsel for the opposite parties Sh. N.K.Sharma, Advocate, has submitted that account has been opened by the complainant in the name of his firm, but he has filed the complaint in his personal name and has opened the account with the opposite parties for commercial purposes, as such, complaint is not maintainable and he does not fall within the purview of its definition given in the Act.


    7. On the other hand, Sh.Sunil Bansal, Advocate, learned counsel for the complainant, has submitted that complainant is the proprietor of his firm, who has suffered financial loss in his business due to deficiency in service on the part of the opposite parties, as such, he is consumer within the ambit of its definition given in the Act and the instant complaint is maintainable.


    8. The arguments advanced by the learned counsel for the opposite parties have failed to sound well with us. As mentioned in the complaint and affidavit of the complainant, tendered in evidence as Ext.C-1, he is the sole proprietor of his firm and account has been opened with the opposite parties in the name of his firm through him. The firm has to operate its account through some agency. It can file the complaint in its personal capacity. Therefore, we express our inability to accede to the


    Contd........5
    : 5 :

    plea of the opposite parties that complaint is not maintainable in the present form. Moreover, strict rules of procedure are not applicable in proceedings before Consumer Fora.

    The opposite parties have failed to produce any evidence to establish their pea that complainant is running his business with the assistance of several other persons employed by him and income of his firm is in crores before closure of his evidence.

    In the absence of any such evidence, we have no option but to accept the version of the complainant, as corroborated by his affidavit, that the firm is the only source of his income and he is running its business himself for earning his livelihood with or without the assistance of his family members. As per explanation appended to sub section (ii) of Section 2(1)(d), of the Act, commercial purpose, does not include, availing of services by a person for purpose of earning livelihood, by means of self employment. In view of the facts and circumstances of the case, we are of the considered opinion that complainant falls within the definition of 'consumer' given in the Act and no ground is made out for dismissal of his complaint on these technical grounds.


    9. At this stage, learned counsel for the complainant has submitted that the limit for availing credit facility has not been sanctioned by the opposite parties and they have not produced any document, stated to have been executed by the complainant, undertaking therein to maintain minimum balance in his account, as such, the deduction of amount from his account on that score by the opposite parties is deficiency in service for which complainant is entitled to seek compensation and costs and the opposite parties are liable to credit the amount in his account and to make payment thereof alongwith expenses incurred by him for availing credit facility and interest at the rate of 12 percent per annum.


    10. On the other hand learned counsel for the opposite parties has submitted that opposite parties are bound by the rules governing them on the subject and complainant cannot wriggle out of the undertaking given


    Contd........6
    : 6 :

    by him to maintain minimum balance in his account. As such, reduction of amount as per the banking rules is no deficiency in service which may invite indulgence of this Forum, and the instant complaint deserves to be dismissed with compensatory costs.


    11. We are not impressed by the argument advanced by the learned counsel for the opposite parties, because they have failed to bring on record any document in their possession stated to have been executed by the complainant undertaking therein to maintain minimum balance in his account .


    Due to withholding of that material document, adverse inference has to be drawn against the opposite parties. Moreover, it is not their case that limit was sanctioned in the name of the complainant, to enable him to run the business of his firm. Therefore, we are of considered opinion that opposite parties were not justified in reduction of the amount from the account of the complainant due to his inability to maintain minimum balance for the stipulated period. However, it is a matter of common knowledge that bankers do not pay interest on amount deposited in current accounts by the customers and complainant has not produced any documentary evidence showing that he has spent a sum of Rs.10,000/- for availing credit facility.

    However, deficiency in service on the part of the opposite parties in debiting the amount from the account of the complainant opened in the name of his firm, is clearly established because of which he has been subjected to mental and physical harassment. As such, he deserves to be compensated with adequate amount on that score and also entitled for payment of expenditure incurred by him for filing of the instant complaint.


    12. For the aforesaid reasons, we partly accept the complaint and direct the opposite parties to credit the amount of Rs.25,000/- in the account of the complainant and to release the same to him with further direction to pay a sum of Rs.2,000/-, on account of compensation and Rs.1,000/-, on account of costs of filing the complaint. The said


    Contd........7
    : 7 :

    amount be paid to the complainant within the period of two months from the date of receipt of the copy of this order, in case the opposite parties fail to do so, then complainant shall also be entitled to payment of interest at the rate of 9 percent per annum from the date of this order, till date of actual payment.

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