BEFORE THE DISTRICT CONSUMER FORUM :: GUNTUR

Present: Sri T. Anjaneyulu, B.Sc. L.L.B., President Smt. C.Rachel Devavaram, M.A., M.Ed., L.L.M.,(Ph.D) Member

Thursday, the 19th day of March, 2009

C.C.No.174 of 2008

BETWEEN:

Paruchuri Narayana,
S/o. venkata Appaiah,
R/o. Ramulapadu village,
Tadikonda Mandal,
Guntur Distlrict. … Complainant


AND

1. VISWAS,
Papillon Market Innovation Limited,
Rep. by its authorized Branch Manager,
Shivaji Building, Patnam Bazar,
Guntur.
2. ICICI Bank Limited,
Rep. by its Branch Manager,
Agricultural Section,
1st floor, Holywood Bollywood Buildings,
Lakshmipuram main Road, Guntur. … Opposite party


This complaint coming up before us for final hearing on 17-03-09 in the presence of Sri P.V.Ramana, advocate for complainant and in the presence of 1st opposite party and the 2nd opposite party is remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration, this Forum made the following:
O R D E R
Per Sri T. ANJANEYULU, PRESIDENT:

This complainant is filed under section 12 of Consumer Protection Act, 1986 by the complainant praying this Forum for a direction on 2nd opposite party to close the agricultural loan availed by him by applying the Debt Waive Scheme, 2008 announced by the Government of India and to pass such other necessary orders.


The complainant is the resident of Pamulapadu village, Tadikonda Mandal, Guntur District. He is an agriculturist by profession. The father of the complainant is having Ac.8.23 cents of dry land in his village. His father died in the year 2001 leaving behind his wife and his sole son i.e., the complainant. The complainant’s mother by name Paruchuri Seshamma aged about 60 years living separately by doing cultivation. The complainant is cultivating the land of Ac.4.50 cents in his village by availing crop loan from the 2nd opposite party bank. The 1st opposite party is the Nodal Agency between the agriculturists and banks. It holds 10% of amount on the total amount sanctioned as security deposit. It also withheld 1/3 of sanctioned loan amount for sale of fertilizers and pesticides. The 1st opposite party is having business tie up with the 2nd opposite party. The loan was availed on 02-11-06 for raising cotton crop. Total availed loan amount is Rs.3,83,000/-, which is to be repaid within a period of 3 years, mode of payment is every six months. The 1st opposite party withheld an amount of Rs.38,300/- representing 10% of the loan sanctioned. It also withheld an amount of Rs.1,21,097/- for supply of fertilizers and pesticides. The actual loan amount credited to the complainant account is Rs.2,23,603/-. The complainant has paid an amount of Rs.82,849/- on 11-06-07 vide receipt No.L 04070524502, again he has paid Rs.82,849/- on 31-12-07 vide receipt No.L 10075501609.


The Government of India issued orders in respect of agricultural Debt Waive Scheme in the Month of March, 2008. The scheme is also applicable for all financial both nationalized and private banks and credit societies, it also applicable for gold loans and agricultural loans. The 2nd opposite party refused to apply the scheme to the complainant without any reason. Thus, it rendered deficiency of service. Hence, the complaint.



After receipt of notice, the 1st opposite party appeared in person whereas the 2nd opposite party remained absent and hence, set exparte.

The complainant has filed the chief affidavit while referring the documents on record vide Ex.A1 to A12. Ex.A1 is the copy of pattadar passbook in the name of complainant showing the extent of land as Ac.8.23 cents in various survey numbers. Ex.A2 is the copy of residence certificate of complainant. Ex.A3 is the copy of small farmer certificate issued by MRO, Tadikonda. Ex.A4 is the receipt issued by 1st opposite party for a sum of Rs.38,300/- which has been withheld towards security deposit against the crop loan raised on the 2nd opposite party bank. Ex.A5 is the copy of receipt No.524502 issued by 1st opposite party for a sum of Rs.82,900/-. Ex.A6 is the EMI schedule issued by ICICI Bank in the name of complainant. Ex.A7 and A8 are the payments receipts issued by 2nd opposite party bank. Ex.A9 is the news item of Eenadu Telugu Daily dt.20-06-08 about the debt waive scheme announced by the then Finance Minister. Ex.A10 and A11 are the publications in Telugu daily newspaper. Ex.A12 is the demand notice dt.03-06-08.


The 1st opposite party did not raise any objection with regard to the relief claimed by the complainant except mentioning of supply of fertilizers and pesticides to the 1/3 of loan amount sanctioned by the ICICI Bank, Guntur. It also stated that the complainant is a marginal farmer, who availed crop loan from the bank. The above refereed documents on record together with the chief affidavit of complainant establish the claim of complainant. It is not known as to why the 2nd opposite party remained absent without resisting the claim made by the complainant in any manner, thus inviting adverse inference against it. The complainant is being small farmer entitled for the waiver of balance loan amount unpaid. Accordingly, we hereby direct the 2nd opposite party to apply Debt Waive Scheme, 2008 announced by the Government of India in respect of agricultural crop loan availed by the complainant.

In the result, the complaint is allowed as prayed for.

1.We direct the 2nd opposite party to close the agricultural loan availed by the complainant by adopting the Debt Waive Scheme, 2008 as the complainant is a small farmer.
2.We also award legal expenses of Rs.1000/- to the complainant.
3.The above orders shall be complied within a period of six weeks from the date of receipt of copy of this order.

C.C. No. 125 /2008


Between


N.Shanmugham, S/o N.Natesa Chetty,
Aged about 48 years, Hindu, Business,
Residing at D.No.11-200, Gandla Street,
Chittoor, Chittoor Dist.
… Complainant.


And

1. The Manager, ICICI Bank Ltd.,
(Two whealers Loans Collecion Manager),
R.V.Towers, 2nd and 3rd Floors,
Tilak Road, Near Municipal Office,
Tirupati, Chittoor Dist.

2. The Bhagyalakshmi Motors, rep.by its
Authorised Signatory/Proprietor,
Authorised Dealers of Bajaj Motor Cycles,
Kattamanchi, Chittoor, Chittoor Dist.
… Opposite parties.

This complaint coming on before us for final hearing on 18.03.2009 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri V.Lokanadha Reddy, counsel for the complainant and Sri V.R.Ramakrishna, counsel for the Opposite party No.1 and the Opposite Party No.2 remained exparte and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Sri. V. Parthasaradhi Rao, B.A., L.L.B., President

ON BEHALF OF THE BENCH


This is a complaint filed by the complainant to direct the 1st opposite party to give Clearance in his vehicle bearing No. AP-03-P-9977 and to pay compensation of Rs.50,000/- towards deficiency in service and Rs.5,000/- towards damages of the vehicle.

The complainant submits that he purchased Motor Cycle Bajaj Pulsar from the 2nd opposite party with the financial assistance of 1st opposite party. The vehicle was purchased in May, 2005. The total amount of loan availed from the 1st opposite party was Rs.46,900/-. The complainant agreed to pay the said loan amount together with interest at Rs.57,800/- in 20 monthly equal installments at Rs.2,710/- per month. The complainant paid 4 advance installments of Rs.10,840/- at the time of availing loan. The complainant submits that the 1st opposite party obtained 20 advance checks from the complainant. He paid all the installments regularly after completion of the loan amount. He requested the 1st opposite party to give clearance certificate but both the opposite parties have not choosen to give the certificate. The 2nd opposite party stated that he is no way concerned for clearance certificate and cancellation of Hypothecation agreement as the complainant availed loan from the 1st opposite party. After giving legal notice to the 1st opposite party, the opposite party is demanding Rs.7,240/- for giving clearance to the vehicle bearing No. AP-03-P-9977. The 1st opposite party charged unnecessary charges though he is not at all liable to pay the sum. It amounts deficiency in service. The complainant traveled more than 100 times from Chittoor to Tirupati and spent more than Rs.5,000/- for expenses. Since 1st opposite party did not give clearance certificate, he filed this complaint to direct the 1st opposite party to issue clearance certificate and pay damages of Rs.50,000/- and traveling allowance of Rs.5,000/-. The complaint may be allowed.

The 1st opposite party filed written version alleging that the complainant availed loan of Rs.57,800/- from the 1st opposite party on 10.08.2005 and executed Hypothecation Agreement in its favour. The complainant agreed to repay the loan in 24 equatal monthly installments of Rs.2,010/- as per the terms and conditions contained in the said agreement. The complainant was fully aware that time and regular payment is essence of the contract. He was irregular in payment of EMIs. The complainant failed to honour 5 cheques on 07.09.2005, 07.11.2005, 07.01.2006, 07.03.2006 and 07.04.2007. He cleared only 4 cheques out of 5 cheques and has not cleared so far the cheque dated cheque No.370100 dated 07.04.2007. The complainant is bound to pay bouncing charges. The 1st opposite party issued notice dated 11.12.2007 to the complainant to clear the outstanding dues. The complainant issued 20 post dated cheques as security. The complainant defaulted in making payments of EMIs. This opposite party submits that the complainant never visited the opposite party office. This opposite party submits that the cheque bearing No.370100 dated 07.04.2007 was returned with an endorsement that “Account Closed” from the complainant bank. As per the terms and conditions of the agreement the NOC can be issued on making payment of the outstanding amounts prevailing on the date of possession by the opposite party No.1. As per the loan account of the 1st opposite party the complainant was due Rs.7,170/- as on 16.02.2009. Since the complainant complied default of payment of installments there is no deficiency of service on the part of opposite party and the complaint may be dismissed.

The complainant filed chief affidavit of Pw.1 and marked Ex.A1 to A7. The opposite party filed Chief affidavit of Rw.1 and marked Ex.B1 to B3.

Ex.A1 is Bank Pass Book of complainant in Vysya Bank, Chittoor, Ex.A2 is Payment Receipts, Ex.A3 Monthly Installments schedule, Ex.A4 Office Copy of Legal Notice dated 26.09.2008, Ex.A5 Postal Acknowledgments, Ex.A6 Statement of Account issued by ICICI Bank, Tirupati and Ex.A7 Registration Certificate of the vehicle Bajaj Pulsar bearing No. AP-03-P-9977. Ex.B1 Original Cheque filed on behalf of the opposite party, Ex.B2 Bank Return Memo filed on behalf of opposite party and Ex.B3 Statement of Account.
The points for consideration are

1)Whether the opposite party refused to issue no objection certificate of the vehicle Bajaj Pulsar bearing No. AP-03-P-9977 without any reason and if so whether the 1st opposite party committed deficiency in service?

2)Whether the complainant is entitled to obtain no objection certificate from the 1st opposite party?

3)To what relief?


Point 1 & 2 : -

Pw.1 is the complainant. He stated that he purchased Motor Bajaj Pulsar bearing No. AP-03-P-9977 from the 2nd opposite party in May,2005 with the financial assistance provided by the 1st opposite party. The loan amount provided by the 1st opposite party is Rs.46,900/-. He has to repay the said loan amount together with interest and after adding interest the total loan amount repayable is Rs.57,800/- in 20 equal installments at Rs.2,710/- per month. Pw.1 stated that he paid 10,840/- at the time of availing loan. He gave 20 post dated cheques to 1st opposite party. He executed loan under Hypothecation agreement in favour of the opposite party. Pw.1 stated that he paid all installments regularly in completion of April, 2007. After payment of the loan amount he requested the 1st opposite party to give clearance certificate but both the opposite parties have not choosen to issue clearance certificate to him. The 1st opposite party gave reply notice to the complainant demanding an amount of Rs.7,240/- for giving clearance certificate. Ex.B3 is the statement of account. It reads that the 1st opposite party charged unnecessary charges, though he is not liable to pay the same. The demand of excess amount of Rs.7,240/- amounts deficiency in service. Therefore he filed this complaint for a direction to issue no objection certificate.
Rw.1 is the Branch in charge of 1st opposite party. He stated that the complainant availed loan of Rs.57,800/- together with interest on 10.08.2005 and executed Loan cum Hypothecation Agreement in favour of the 1st opposite party. Rw.1 stated that the complainant gave 20 post dated cheques as security of 1st opposite party. He was irregular in paying the installments to the ICICI Bank, Tirupati. The complainant failed to honour 5 cheques dated 07.09.2005, 07.11.2005, 07.01.2006, 07.03.2006 and 07.04.2007 and cleared 4 cheques and has not cleared one cheque dated 07.04.2007. Rw.1 stated that the complainant has to pay the defaulted installment and cheque bouncing charges as per the terms and conditions of loan agreement. Rw.1 stated that as per loan account dated 16.02.2009 the complainant is due Rs.7,170/-. Rw.1 stated if the complainant pays the pending installment amounts with bouncing charges and other charges, the opposite party No.1 has no objection to issue the clearance certificate. Since the complainant has not paid the amount due to the opposite party, there is no deficiency of service on the part of their Bank and the complaint may be dismissed.

The opposite party filed written arguments in the same lines what he stated in the written version. The learned counsel for the complainant contends that the complainant paid all the installments regularly and is not due any amounts to the first opposite party. He further contends that the opposite party obtained 20 post dated cheques and did not file those cheques in the Bank on the due dates on 7th of every month. The 1st opposite party filed the cheques according to its convenience after the due date and is demanding over due charges and other charges for which the complainant is not liable to pay those amounts.

The learned counsel for the 1st opposite party contends the complainant obtained loan under hire purchase agreement from the 1st opposite party and the financier is not rendering any service. Therefore the complainant is not a Consumer and the complaint may be dismissed.

The complainant filed this complaint that the 1st opposite party is demanding Rs.7,240/- excess amount as bouncing charges and other charges contrary to the contract and it amounts unfair trade practice. The complainant is a Consumer.

Both the complainant and 1st opposite party have not filed the loan cum Hypothecation agreement and it is not known the terms and conditions of the agreement in case of default payments. The complainant filed the statement of account of his Bank stating that he paid the installments regularly and four installments in cash. The complainant contends that the 1st opposite party has not filed the posted dated cheques in time on due date 7th of every month and so he paid the amount by cash. But Ex.A1 the statement of accounts filed by the complainant does not show that the complainant kept sufficient amount for the post dated cheques on the due dates. He has not filed the Bank Pass Book and so he could not establish that the 1st opposite party filed the cheques in the bank after due dates. With regard to the last cheque dated 07.04.2007, the 1st opposite party filed the post dated cheque in bank after due date on 20.04.2007 as per Ex.B2 document. But there is no evidence that the 1st opposite party filed the earlier four post dated cheques after due date is similar manner. Therefore the complainant could not establish that the 1st opposite party is in the habit of filing the cheques after due dates. On the other hand the statement Ex.B3 shows that the 1st opposite party is filing the cheques on due dates and they are bounced. Since both the complainant and opposite party have not filed any document showing the rate of interest to be collected on default amounts this Forum is unable to say whether the over due amounts charged are as per contract or not.
Even from the account of complainant Ex.A1 the complainant has paid only 18 installments and due 2 installments. But the 1st opposite party admit that the complainant is due only one installment Rs.2,710/- and over due charges Rs.4,460/- totaling to Rs.7,170/- as per Ex.B3. In those circumstances, the complainant cannot contend that the 1st opposite party cannot collect bouncing charges especially when he failed to keep sufficient amount in his account on the 7th of every month. In those circumstances I agree with the learned counsel for the 1st opposite party that the complainant has not paid one installment and also over due charges and unless they are paid he is not entitled for any clearance certificate. I answer these points against the complainant.

Point 3 :-
In the result the complaint is dismissed without costs.

O R D E R

By Smt. H. Seena, President
The case of the complainant is as follows.


The case of the complainant is that he has availed a loan from the Opposite party for purchasing a vehicle “Toyota Qualis” make F2 metallic brand priced Rs.5,80,000/- from ICICI Bank Ltd and for repaying the loan he has issued 59 cheques at the rate of Rs.11,310/- per installment for sixty months including Rs.11,310/- by cash on 07.03.2004. The complainant's case is that at the time of delivery the loan amount was reduced to Rs. 5,27,000. A fresh repayment schedule was issued and according to that the complainant has to pay only 54 installments. So the cheques numbering 5 are paid in excess and that is to be returned to the complainant. Complainant states that the Manager of the Trichur Branch of the Opposite party has agreed to return the 5 cheques. Since the cheques were not returned the complainant did not repay installments during the month of April, May and June 2004 and after mediation by the staff of the Opposite party it was agreed that the cheques will be returned if the amount due is paid. So the same was paid. Even after that the Opposite party has not returned the cheques. The act of the Opposite party amounts to unfair
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trade practice and deficiency of service on their part. Hence the complaint.
Opposite party filed version with the following contentions.


According to Opposite party the loan amount sanctioned was Rs.5,80,000/-. It was not later reduced to 5,27,000/-. Therefore the question of agreeing to return 5 post dated cheques to complainant does not arise at all. It is false to state that a fresh repayment schedule was handed over to complainant. According to the Opposite party the Opposite party has not approached the complainant. But the complainant has voluntarily approached the opposite party for availing loan and a proforma invoice from Toyotta dealers Moopan Motors was produced.


An amount of Rs.5,80,000/- was sanctioned on 19.02.2004. The complainant has entered into a hypothecation agreement with the opposite party accepting the terms and conditions including the number of installments and amount. He himself issued 60 post dated cheques all for Rs.11,310/- towards the installments due from the complainant. The loan account number is LAPGT 000 1961320. The last installment paid was on 23.06.2004. The opposite party has filed a complaint under section 138 of the Negotiable Instruments Act as S.T Case No.1415/2005 before the Honourable Judicial First Class Magisterate Court No.4 at Kochi against the complainant herein as the cheque paid towards the legal liability (installment) was dishonoured. The above complaint is filed to escape from the liability, and that too after the complaint was filed by the opposite party and the copy of the S T case was received by the complainant who is the accused in that case.


The cheques issued by the complainant are for the installments due to the opposite party. So the
allegation that there is unfair trade practice, which caused mental agony to the complainant, is not correct. Hence the complaint is liable to be dismissed.


The evidence adduced consists of Exhibits A1 to A6 marked on the side of the complainant and Exhibits B1 to B5 marked on the side of the opposite party.


Issues for consideration are

1. whether there is deficiency of service on the part of the opposite party?
2. If so, what is the reliefs and cost?
   

Points 1 and 2
The definite case of complainant is that the Opposite parties initially agreed to disburse a loan
- 3 -
amount of Rs.5,80,000/- which was later reduced to Rs.5,27,000/-. Complainant has actually given 59 post dated cheques for Rs.5,80,000/-. But as the loan amount was reduced only 54 instalments need to be paid and therefore 5 cheques are in excess with the Opposite party. Inspite of several requests Opposite parties has not returned the same and it amounts to deficiency of service on their part of the complainant has produced Exhibit A1 to A3 documents which were marked with objection. Exhibit A1 is the repayment schedule for an amount of Rs.5,80,000/- and Exhibit A2 is the schedule for Rs.5,80,000/- which was manually corrected to Rs.5,27,000 and tenure of repayment was corrected to 54 months instead of 60 and EMI to 11,309/- instead of 11,310/- . Exhibit A3 is the schedule for Rs.5,27,000/-. Exhibit A6 document is the letter issued by the Opposite party No.1 promising to return the excess 5 post dated cheques. The document was also marked with objection.


According to the Opposite party, loan amount disbursed was Rs.5,80,000/- and there is no excess post dated cheques to be returned. Opposite party has produced Exhibit B1 to B5 documents in support of the contention. In all the documents, viz, car loan application, hypothication agreement and the ledger extract relating to the applicant loan account etc loan amount allotted is seen as Rs.5,80,000/-.


Analysing the available evidence on record, it can be seen that no convincing evidence is placed before the forum to substantiate the stand of the complainant that the Opposite party has reduced the loan amount to Rs.5,27,000/-. Exhibit A2 document in which Rs.5,80,000/- was manually reduced to Rs.5,27,000/- does not reveal the fact that the same was done by the Opposite parties. Further we seriously doubt the genunity of Exhibit A3 document which was marked with objection by Opposite party. On bare perusal of the document itself it can be seen that the same is not issued by the Opposite parties. The only document in favour of the complainant is the letter issued by the Opposite parties to the complainant promising to return 5 post dated cheques. Document was marked subject to proof. Complainant has not taken any steps to examine the signatory of the document in order to proove the same. In view of the above circumstances, we are of the view that the complainant has miserably failed to proove a case in his favour where as going through the documents produced by Opposite party it can be seen that loan amount is stated as 5,80,000/- in the car loan application Hypothication agreement Ext B3 signed by the complainant reveals that loan amount is 5,80,000/-. Particular of the repayment schedule also reveals the same.
From the foregoing discussions, we are of the view that there is no deficiency of service or
- 4 -
unfair trade practice on the part of the Opposite parties.
In the result complaint is dismissed.
Pronounced in the open court on this the 28th day of March 2009.

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No: 178/2008 Filed on 7/8/2008 Dated : 30..03..2009

Complainants:

1. 1. 1. 1. 1. Janardhana Iyer, S/o Ramaswamy, T.C.22/747, Gokulam, Attukal, Manacaud-P.O., Thiruvananthapuram.
            2. Jayalekshmi, D/o Subbhalekshmi, residing at ..do..

(By Adv. K. Radhakrishnan)


Opposite parties:

1. 1. 1. 1. 1. The Manager, ICICI Home Finance Company Ltd., ICICI Bank, opp. A.G.'s Office, Statue, Thiruvananthapuram.
            2. General Manager/Managing Director, ICICI Bank Ltd. P.O.Box 10099, G.P.O., Mumbai – 400 001.

(By Adv. Koliacode K. Rajeev)




This O.P having been heard on 04..02..2009, the Forum on 30..03..2009 delivered the following:

ORDER

SMT. BEENA KUMARI. A., MEMBER:


The 1st complainant is the husband of the 2nd complainant. The 2nd complainant had availed a Home loan as per loan agreement No.LB Tvm 00000 351133 amounting to Rs.3,87,546/- on 28/2/2003, that the 2nd complainant had availed a supplementary loan of Rs.1,00,000/- as per loan agreement No. LB Tvm 00000 351134 on 1/3/2003. In both loans the 1st complainant is the co-applicant. As per the above said loan agreements the complainants have to repay the entire loan amount with interest subject to variation from time to time. The complainants were directed to remit Rs.7,228/- through post dated cheques. The entire loan amounts with interest have to be repaid by 98 EMIS. Accordingly, the 1st complainant issued his post-dated cheques for remittance of EMI. The 2nd complainant entrusted in advance the EMI in the hands of 1st complainant for the purpose of remittance and accordingly the 1st complainant deposited such cash in the bank in time and always maintained sufficient balance in his account, to honour cheques drawn in favour of opposite party bank, and issued post dated cheques to the opposite parties. In the meantime the opposite parties intimated the complainants that the cheque No.199006 dated 7/11/2003 for Rs.5,729/- drawn on Thiruvananthapuram District Co-operative Bank, Fort Branch, Thiruvananthapuram was dishonoured for want of sufficient funds as per their statement dated 13/6/2005 issued to the complainants. They have shown bounce charge as Rs.200/- and over due charge as Rs.229/- for the dishonour of the said cheque in the said statement. There was sufficient credit balance in the account of the 1st complainant and the opposite parties encashed the said cheque on 19/11/2003 and it is seen that the amount was credited in the accounts of complainant on 27/2/2004. The opposite parties misrepresented facts and cheated the complainants. There is deficiency of service and unfair trade practice on the part of opposite parties which caused them undue hardship, financial loss and injury. The 1st complainant stated that he had maintained sufficient credit balance in his account to honour the cheques. But only to harass and cause irreparable injury and loss to the complainant the opposite parties without producing the cheques on due dates before the bank for encashment informed the complainants, that the cheques were dishonoured for want of sufficient funds and issued statement regarding the same. Without doing their duties and services to the complainants the opposite parties harassed the complainants on several ways and attained unlawful gains and undue advantage. There is deficiency of service and unfair trade practice on the part of opposite parties. The act of the opposite parties created problems in the family life of the complainants also. Hence this complaint, the complainants claim Rs.3,00,000/- for their mental strain and pain.


2. In this case the opposite parties ICICI bank remained ex-parte.
The 1st complainant filed proof affidavit for himself and for and on behalf of 2nd complainant, who is the wife of the 1st complainant. From the side of complainants 14 documents were marked as Exts. P1 to P14.


3. Points that would arise for consideration are:

1. 1. 1. 1. 1. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?
            2. Whether the complainants are entitled to get the reliefs and costs sought for?

4. Points (i) & (ii) : The affidavit filed by the complainants in this case stands unchallenged. The opposite parties never turned up to contest the case. The allegation of the complainants against the opposite parties are that there was sufficient credit balance in his account to honour the cheques, but there was deliberate latches and willful default on the part of opposite parties in producing the cheques on due dates for collection of payment. Without doing their duties and service to the complainants the opposite parties harassed the complainants on several ways and attained unlawful gains and undue advantage. To prove their allegations the complainants have produced 14 documents. Ext.P1 is the statement of account from 13/6/2003 to 13/6/2005 issued by the opposite parties' bank. Ext.P2 is the payment receipt issued by the opposite parties. Ext.P3 is the copy of advocate's notice dated 7/6/2005 issued by the complainant to the 1st opposite party. Ext.P4 is the reply notice sent by the opposite parties through this letter the opposite parties apologized to the complainant for their mistake. Ext.P5 is the notice issued by the complainant to the opposite parties intimating the matter that he want to close his account with the opposite parties' bank. Exts. P6 to P9 are the statement of accounts of loan. Ext.P10 is the payment receipt of Rs.5,764/- issued by the opposite parties. Ext.P11 is the payment receipt of Rs.3,003/- issued by the opposite parties. Ext.P12 is the copy of notice issued by the complainant to the 1st opposite party on 7/5/2008 before filing this complaint. Exts. P13 & P14 are the copy of notice with statement issued by the complainants to the opposite parties on 16/6/2008.


5. On a careful perusal of these documents we have found that the allegations levelled against the opposite parties are true. The opposite parties charged bounce charge and overdue charges against the complainants even though there was sufficient balance in the account of the complainants in the alleged dates. The complainants filed detailed schedule regarding the same. From the Ext.P4 document we can see that the complainant has sufficient amount to honour the cheque on due dates. But the opposite parties intimated the complainants that the cheques were dishonoured for want of sufficient funds. But statement of the opposite parties are not true, the documents shown that on 7/1/2005, 7/3/2005, 7/4/2005, 7/5/2005, 7/6/2005, 7/8/2005, 7/11/2004, 7/12/2004, 7/3/2005, 7/4/2005, 7/5/2005 & 7/8/2005. There was sufficient balance in the account of the complainants, but the opposite parties charged bounce charge and overdue charges from the complainants. Through these transactions the opposite parties unlawfully obtained Rs.4,033/- from the complainants. It is very clear from the documents and evidences adduced by the complainants that there was willful default from the side of opposite parties. Without doing their duties and services carefully they harassed the complainants and attained unlawful gains and undue advantage. Moreover in this case the complainants several times requested to clarify the defects made by the opposite parties. They acted against all provisions of law and natural justice. There is deficiency in service and unfair trade practice on the side of opposite parties. In this case the complainants have succeeded to prove his case with sufficient documents and clear calculation. Hence the complaint is allowed.


In the result the 2nd opposite party is directed to refund Rs.4,033/- (Rupees Four thousand and thirty three only) additionally charged from the complainants to the opposite parties and direct the 2nd opposite party to pay Rs.10,000/- (Rupees Ten thousand only) as compensation to the damages caused to the complainants on account of the deficiency of service and unfair trade practice to the complainants and also direct the 2nd opposite party to pay Rs.2,000/- (Rupees Two thousand only) as costs of the proceedings. Time for compliance one month thereafter 12% annual interest also shall be paid to the above said amounts.

O R D E R

Sri.A.M.Pattar, Dist. Judge (Retd), President.

This is a complaint filed by the complainant U/Sec.12 of the Consumer Protection Act 1986 (hereinafter referred to as the ‘Act’) against the Opposite Parties (in short the ‘Ops’) claiming a compensation of Rs.50,000/- from the Op on account of deficiency in service done by them, along with Rs.5,000/- being the costs of the proceedings.

2. The facts of the case in brief are that; the complainant is a proprietor of Sri. Balaji Enterprises, Bagalkot and is also the permanent customer of Op2 Bank having his Account No.053205800123. The complainant is also transacting with Parak Agro Industries Ltd. Co. Hubli who is manufacturing Samrat Chakki fresh atta and he had placed order for supply of said products and accordingly the products were supplied to him totally amounting to Rs.25,380/-, for payment of the said amount, the complainant issued a cheque for the said amount of Op2 Bank dated 17.7.2008 and the said Parak Agro Industries Ltd. Co. Hubli sent the said cheque for realization through its banker corporation Bank to Op1 Bank. But Op1 Bank has returned the said cheque with an endorsement “signature in complete” on 21.7.2008. The complainant always use to put his signature as is put on the cheque in question. But the Ops in order to lower his prestige in the society and business circle have wrongly dishonored the said cheque and that has caused great mental agony and financial loss to the complainant. Dishonoring the cheque improperly amounts to deficiency in service etc., and hence has prayed for allowing the complaint.

3. Op1 inspite of due service of notices has remained absent and hence it is placed as exparte. However Op2 has appeared through the counsel and filed objections on behalf of both the Ops contending that the cheque in question when presented for encashment it was noticed that the signature was different of the account holder and it was apparent on the face of the said cheque and hence it was returned to the drawer as per the banking practice. If the signature differs on the cheque it will be returned with an endorsement as “referred to drawer” and it does not amounts to deficiency in service. There is no negligence on the part of the Ops. The complainant has filed this complaint only to harass the Ops etc., and hence has prayed for dismissal of the complaint.

4. Both the parties have filed affidavits in support of their respective cases. Eight documents are marked for the complainant as Ex.C-1 to Ex.C-8. But no documents are marked for the Ops.

5. Heard the oral arguments of learned counsel for the complainant. Learned counsel for the Ops has submitted his written arguments.


6. Now the points that arise for our consideration are;

1.Whether the complainant is entitled to the relief as is sought for?
2.What order?
Answers to the above Points:-
1) Partly Affirmative.
2) As per final order

R E A S O N S

7. POINT NO.1:- The fact that the complainant is customer of Op2 Bank is not in dispute. Further it is also not in dispute that the complainant is transacting with Parak Agro Industries Ltd. Co. Hubli and for the payment of the amount due to the said company he had issued a cheque for Rs.25,380/- as per Ex.C-5. It is an undisputed fact that when the cheque was presented by the said Parak Agro Industries Ltd. Co. Hubli for realization, the Ops have dishonored the said cheque as per Ex.C-6 on the ground that “drawer’s signatures in complete”. Under Banking Rules and Regulations and practice the Bankers are empowered to dishonor any cheque on certain grounds namely for want of sufficient funds, in complete signature etc. In the instant case, Ops have dishonored the cheque only on the ground of in complete signature of the drawer. When it is the specific case of the complainant that he use to sign the cheque always in the form as he has signed on the said cheque as per Ex.C-5 and when this fact has been disputed by the Op Bank then it is for the Op Bank to show as to how and in what manner the signature of the drawer is in complete. The specimen signature of the drawer particularly of the complainant in this case will be with the Op Bank only and it is for the Op Bank to produce the specimen signature of the complainant in order to support its stand that the signature which the complaint has put on the cheque in question is in complete. But unfortunately the Op Banks have not at all chosen to produce the specimen signature of the complainant. In the absence of the said specimen signature of the complainant it cannot be said that the signature put by the complainant on the cheque as per Ex.C-5 is either in complete or different one. Therefore, the Ops Bank were not justified in dishonoring the cheque on the ground of incomplete signature of the drawer and this amounts to deficiency in service.

8. The complainant has claimed an amount of Rs.50,000/- for deficiency in service and mental agony and financial loss caused to him. But he has not furnished the details as to how he sustained loss or damage to that extent. However in his complaint as well as in the affidavit filed in this case he has stated that he has got a good name in the business circle and the society and on account of dishonoring the cheque improperly by the Bank, the Parak Agro Industries Ltd. Co. Hubli has lost faith in him and his prestige has been lowered in the society as well in business. Considering this fact and circumstances of the case we feel that it is just and proper to award Rs.5,000/- as a compensation for deficiency in service, mental agony, financial loss etc., apart from awarding another Rs.2,000/- as a costs of this proceedings. With this we answer point No.1 partly in the Affirmative.

9. Point No.2: In the result the complaint of the complainant is fit to be allowed in part and hence we proceed to pass the following…

O R D E R

Complaint of the complainant is allowed in part.

Opposite Party 1 and 2 are ordered to pay Rs.5000/- (Rs.Five thousand only) to the complainant as a compensation for deficiency in service, mental agony, financial loss etc., along with Rs.2,000/- (Rs.Two thousand only) being the costs of this proceedings within two months from the date of this order.


Send free copy of this order to the parties immediately.

(

//JUDGMENT//

This is the complaint filed by Prava Purushotham Prasad against Respondent Nos.1 and 2 ICICI Bank under Sec-12 of Consumer Protection Act for to direct the Respondents Bank to repay an amount of Rs.27,560/- with interest @ 18% p.a. and to award damages and cost of the litigation an amount of Rs.50,000/-.

2. The brief facts of the Complainant’s case are that;

He availed home loan of Rs.6,60,000/- from the Respondents Bank for construction of his house. Thereafter, he paid regular installments and repaid the entire loan amount on 03/12/2007. The Respondents Bank issued No Due Certificate on 11/02/2008 in respect of the said loan. Thereafter, the Respondents Bank not returned post dated cheques of the Complainant which have been given to it as a security. Thereafter, the Respondents Bank encashed those cheques from his Account to the extent of Rs.27,560/- even fully knowing the fact that he satisfied full loan amount. This was brought to the notice of Respondents and thereafter legal notice was issued even then the Respondents not repaid the amount of Rs.27,560/-. There was deficiency in its service. Hence, this complaint was filed against both of them for the reliefs as mentioned in the complaint.



3. Notices of this case issued to Respondent Nos. 1 and 2 served personally by RPAD and Muddam. They remained absent on the date of first appearance and thereafter. Hence, they have been placed exparte and proceeded further.

4. In view of facts and circumstances stated above, now the points that arise for our consideration and determination are that;

1.
Whether the Complainant proves that the Respondents Bank unauthorisedly encashed his post dated cheques totally an amount of Rs.27,560/- from his account even though he fully satisfied the house loan as on 03/12/2007 and issuance of clearance certificate by them dated: 11/02/2008, thereafter, the Complainant requested in oral as well as in writing the Respondents to pay illegal deduction from his account of Rs.27,560/-, but not paid and thereby the Respondents found guilty under deficiency in their services towards him?

2.
Whether the Complainant is entitled for reliefs as prayed in this complaint?

3.
To what relief the Complainant is entitled for?

//POINTS//

5. Our findings on the above points are as under.

Point No.1:
In Affirmative.


Point No.2:
As discussed in detail in the body of this Judgment.


Point No.3:
In view of the findings on Point Nos.1 and 2, we pass the final order for the following;

//REASONS//

Point Nos.1 & 2: -


6. In order to prove the facts involved in these two Points, the affidavit evidence of Complainant was filed, he was noted as P.W.1, documents Ex.P.1 to Ex.P.4 are marked. No Written Arguments filed. The Respondents have placed exparte.

7. As per pleadings in Para No.6 of complaint, the Complainant shown cheque numbers with dates which are the cheques handed over by him to the Respondents Bank as security to the house loan borrowed by him. Ex.P.1 is letter issued by the Respondents Bank to the Complainant in which it was stated that, the Complainant repaid full loan amount and there are no further dues payable by him under the said loan. Further it certified that the said Bank has no claim or right any more whatsoever against present Complainant or in respect of his property with regard to that loan. It is sufficient for us to hold that, the Complainant fully satisfied the loan as on the date of Ex.P.1 or prior to it with regard to full payment of loan amount borrowed by him. Ex.P.1 is dated: 11/02/2008.

8. Keeping in view of this certificate Ex.P.1, we have verified the entries in Pass Book vide Ex.P.2. The entries dated: 01/02/2008, 19/02/2008, 16/04/2008 and 10/05/2008 shows that cheques have been encashed in the account of Complainant by the Respondents which totally works out to Rs.27,560/- after issuance No Due Certificate Ex.P.1. All these facts are corroborated to the pleadings of complaint and the contents of his affidavit evidence P.W.1. No reasons out coming to discard the pleadings, affidavit evidence and documentary evidences as such, we have accepted the case of Complainant and noticed the deficiency in service by these Respondents. Accordingly, we answered Point No.1 in affirmative.

9. As regard to claim of Complainant is concerned, he prayed for to direct the Respondents to repay the excess amount drawn by them from his account which totally works to Rs.27,560/-. In view of findings on Point No.1, the Complainant is entitled for to recover the said amount from the Respondents jointly and severally.

10. Another prayer of Complainant is for to award an amount of Rs.50,000/- towards damages and cost of this litigation. This claim is not supported by any kind of evidences. However, we have noticed the deficiency in service on the part of these Respondents. Keeping in view of entire case of Complainant, we are of the view that, awarding an amount of Rs.3,000/- payable by these Respondents jointly and severally to the Complainant under the head of deficiency in service is proper and reasonable amount. Accordingly, it is granted.

11. As regards to cost of this litigation is concerned, these Respondents have shown their negligence in replying to the notices of Complainant and remaining exparte before this Forum throughout this case is sufficient to award cost of Rs.2,000/- to the Complainant payable by these Respondents jointly and severally. Accordingly, it is granted.

12. As regards to the rate of interest is concerned, the reasonable rate of interest to be granted to the Complainant is @ 9% p.a. on the above total sum from the date of this complaint till realization of full amount is proper and reasonable rate of interest. Accordingly, it is granted and answered Point No.2.


Point No.3: -

13. In view of findings on Point Nos.1 & 2, we pass the following;

//ORDER//

The complaint filed by the Complainant is partly allowed with cost.


The Complainant is entitled to recover total sum of Rs.32,560/- (Rupees Thirty Two Thousand Five Hundred & Sixty Only) including cost from the Respondents jointly and severally.

The Complainant is also entitled to recover interest @ 9% p.a. on Rs.32,560/- from the date of this complaint i.e. 18/02/2009 till realization of full amount from the Respondents jointly and severally.

The Respondents jointly and severally are hereby granted two months time from the date of this Judgment for to make the payment of total sum and interest as stated above to the Complainant.



Inform the parties accordingly.
(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the Open Forum this 19th day of March 2009).

PRESIDENT,

DISTRICT FORUM, BELLARY.

MEMBER,

DISTRICT FORUM, BELLARY

MEMBER,

DISTRICT FORUM, BELLARY.

Written by the President:

- ::: O R D E R ::: -


1. The complainants have filed this complaint u/s 12 of the Consumer Protection Act against the opponents for the deficiency of service in collecting excess rate of interest towards the loan and prays for issue of certified account extract of the loan account and documents executed by them towards the sanction of loan along with compensation of Rs.1,00,000/- and court costs as detailed in the complaint.


2. The facts of the case in brief are as follows:-
The complainants have borrowed Home Loan of Rs.8,00,000/- and agreed to pay the interest @ 7.5% P.A. on E.M.I. in 132 months. Accordingly, the opponents bank have sanctioned the loan and executed the loan agreement and Rs.7,94,228/- loan amount was disbursed to the complainant and the loan account number is LAN:LBHAS00000760220 and in the loan agreement they have mentioned the E.M.I. fixed at Rs.8,919/-. But the opponents have collected 37 post dated cheques out of which 36 cheques were drawn for Rs.9,133/- and another cheque was drawn for Rs.4,930/- towards E.M.I. and towards pre-E.M.I. respectively.


3. Subsequently, the complainants have received a letter dtd.17.11.2004 wherein he came to know that opponents are charging 8% interest and E.M.I. was fixed to Rs.9,133/- for which the complainant No.1 wrote a letter dtd.14.12.2004 and 05.01.2005 regarding the complainants’ account. But the opponents have surprisingly issued a letter dtd.01.07.2005 stating that they have revised the terms on loan and enhanced the rate of interest to 8.75%. In this regard also, the complainants have demanded to set right the things and requested to furnish one set of all copies of documents executed in connection with the loan, but the opponents have failed to do so. Again the complainants wrote several letters to know the loan account transaction and regarding the excess rate of interest charged against agreed rate of interest and wrote a letter for collecting E.M.I. of Rs.9,133/- against the agreed E.M.I. Therefore, the opponents have rendered deficiency of service in collecting excess rate of interest and collecting excess E.M.I. without furnishing detailed transaction of the loan and present position of the loan. Therefore, the complainant pray for a direction to collect E.M.I. and interest as per the agreement executed.


4. After the service of the notice, the opponents have appeared through their counsel and filed version contending that the complainants have agreed and accepted all the terms and conditions of the loan agreement before that they had gone through the conditions, which were entered in the said agreement carefully and after their fair acceptance only the said loan was disbursed to the complainants. But the complainants failed to fulfill the conditions, which were agreed by them. The complainants have not disclosed the true facts in their complaint. In fact on the date of loan sanctioned the rate of interest was about 7 – 7.5% per annum. But the rate of interest could be changed as per the “Floating Reference Rate” (F.R.R.) shall mean percentage rate per annum decided by the opponents bank from time to time and notified / amended by the bank as per floating reference rate as per the rules and direction of the opponent bank, the home loan floating interest rates have been increased (FRR/PLR) in the months of December 2006 consequent to the above mentioned rate of interest increase to the tune of 0.5% from January 2007 for the same. The complainants existing balance tenure is 142 months as per FRR/PLR the existing rate was 10.5%, further submit that during the years of 2001, the FRR/PLR increased by 0.5% twice, once in May 2006, then June 2006 it amount to the rate of interest is about 10.25% per annum. Further submit that the FRR/PLR for the opponent bank home loan was increased by 1% in February 2007 and by 1% in March 2007 making it a net increased of 2%. Hence, tenure of EMI also increased.


5. The opponents have further contended that FRR/PLR of the opponent bank home loan is increased by 0.75% per annum in June 2008 and in July 208 it has been increased by 0.75% making a net increase of 1.50% per annum. Hence, the new rate of interest is 13.25% per annum from July 2008 and further revised to 14% per annum from 1st October 2008. Consequently, the E.M.I. and home loan interest have been changed and the said fact has been intimated to the complainants by the opponent bank in time.

6. The opponents have further contended that the complainants have failed to pay the installments in time, overdue charges payable by them as per the terms and conditions and regulations of the bank and further stated that this Forum has no jurisdiction to revise the condition of the said loan agreement because the E.M.I. is not fixed rate of interest that FRR/PLR is applicable to the loan of the complainant. Thus, there is no deficiency of service. Hence, the opponents pray for the dismissal of the complaint.


7. Sri K.T. Nagaraj - complainant No.1 has filed his affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P35.


8. One Sri G.P. Praveen, Branch – Sales Manager of the opponents bank has also filed his affidavit evidence as RW.1 along with the documents and the same have been marked as Exs.R1 to R7.


9. Heard the arguments on both the sides.


10. Now, the points that arise for consideration of this Forum are as follows:-

i) Whether there is any deficiency in service on the part of
the opponents?
ii) If so, whether the complainant is entitled to the
reliefs as sought?
iii) What Order?


11. Our findings on the above points are as follows:-

i) Point No.1: In the Affirmative

ii) Point No.2: In the Affirmative

iii) Point No.3: See, as per order below

- ::: R E A S O N S ::: -



12. Point No.1 & 2: The case of the complainants is that they have availed a loan Rs.8,00,000/- from the opponents bank and entered into an agreement to repay the loan amount with interest at the rate of 7.5% in 132 monthly installments. But the opponents have collected excess rate of interest against to the agreed rate of interest and the opponents have collected excess E.M.I. without any basis. Hence, the complainants pray for the said reliefs.


13. On contrary, the opponents have taken the contention that the complainants have agreed and signed to all the terms and conditions of the agreement and also agreed to pay the floating rate of interest. Therefore, they have charged the present rate of interest and collected the revised E.M.I.


14. The complainants have produced the Home Loan Agreement, which is marked as Ex.P10 to show that they have agreed to pay 7.5% rate of interest per annum and also produced a letter dtd.17.11.2004 issued by the opponents bank, which is marked as Ex.P11 to show that the opponents have changed the rate of interest on home loan against to the agreed rate of interest. On perusal of Ex.P11, we noticed that they have increased Floating Reference Rate (FRR) for home loan by 50 basis points with effect from November 17th, 2004 and the same would be applicable to complainants loan from the next reset date i.e., January 1st, 2005 and they mentioned that the revised Adjustable Interest Rate on the complainant loan will be 8%.


15. Further the complainants have produced another letter dtd.01.07.2005 issued by the opponents, wherein the opponents have revised terms on complainants loan and enhanced Floating Reference Rate to 8.75% and they have fixed E.M.I. for Rs.9,133/-. On perusal of these documents, we observed that Exs.P11 and P13 are not the continuation of the agreement entered into by the complainants i.e., Ex.P10.




16. On perusal of Ex.P10, we noticed that the complainants have agreed to the fixed rate of interest and schedule ‘A’ is the terms and conditions, which applicable to the fixed rate of interest and schedule ‘B’ is the applicable to the adjustable rate of interest (Floating rate of Interest). As admitted in the cross examination of the opponents, the terms and conditions mentioned in the schedule ‘B’ are striked off as because those were not applicable to the loan raised by the complainants that means to say the complainants have agreed to pay fixed rate of interest on the loan raised by them. On the otherhand, the opponents have not furnished any document to show that they have made novation to the old agreement i.e., Ex.P10. Mere sending letter by stating revised rate of interest does not mean novation of the old agreement. Hence, we are of the opinion that deviating the terms and conditions of Ex.P10 and enhancing the rate of interest on the loan raised by the complainant at their whims and fancy amounts to deficiency of service.



17. It is also pertinent to note that the opponents have failed to show that they have revised the rate of interest as per the norms laid down by the Reserve Bank of India. Therefore, without consent of the complainants or without making another agreement for enhancement of rate of interest deviating the agreed rate of interest amounts to deficiency of service and the complainant is not liable to pay against to the agreed rate of interest as per Ex.P10. Therefore, the opponents are liable to adjust the E.M.I. amount collected in excess from the complainants towards the loan.


18. Further The complainants are entitled to get the true and certified copy of all the documents executed by them in connection with the sanction of loan, including loan application and loan agreement with a list of description of documents and true and certified account extract of complainants’ loan account and also they are entitled to pay the E.M.I. as per the agreed rate of interest.



19. Further the complainants have proved that there is a deficiency of service on the part of the opponents. Hence, they are entitled to get a compensation of Rs.5,000/- along with costs of Rs.1,000/- towards the litigation expenses. Under these circumstances, we answer these point Nos.1 and 2 in the affirmative.


20. Point No.3: In view of our findings on the above points the complaint filed by the complainant has to be allowed. In the result we pass the following order.


- :::O R D E R::: -


1. The complaint filed by the complainant is partly allowed.
2. The opponents 1 to 3 are hereby directed to furnish true and certified copies of all the documents executed by the complainants in connection with the sanction of loan and other relevant documents to the complainants.
3. The opponents 1 to 3 are hereby directed to adjust the E.M.I. amount collected in excess towards the loan and to collect the E.M.I. as per the Agreement and also directed to pay compensation of Rs.5,000/- towards the deficiency of service and costs of Rs.1,000/- towards the litigation expenses, within one month from the date of this order, failing which the amount shall carry interest at the rate of 9% P.A. from the date of default till realisation.
4. Send the copies of this order to the parties.

COMPLAINANT M/s.JAIN JEWELLERS,No.15, R.T Nagar Main Road,Bangalore – 560032.Represented herein by Proprietrix:-Smt.Kanchan Bai,W/o Uttamchand Bhora,47 years.Advocate – Sri.N.Sridhar

V/s.

OPPOSITE PARTY


1. M/s.ICICI Bank,R.T Nagar,Bangalore – 560032.Represented by its Branch Manager.

2. M/s. ICICI Bank,ICICI Bank Towers,No.1, Comissariat Road,Bangalore – 560025.Advocate – Sri.Jai 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 sum of Rs.12,100/- and a compensation of Rs.50,000/- on an allegations of deficiency in service.

The brief averments, as could be seen from the contents of the complaint, are as under: Complainant doing business with Gold Jewellaries and silver articles, one Mr.Babu purchased the articles from complainant shop on 02.11.2008 of worth Rs.12,100/- and made payment of the same by way of credit card. OP collected the commission charges but when complainant got checked her bank statement that amount was not debited to her account. On enquiry OP asked her to produce the enlarged copy of the charge slip etc. Complainant complied the same. Though OP initially credited the said amount of Rs.12,100/- then without the notice and consent of the complainant arbitrarily debited the said amount subsequently. This highhanded act of the OP caused both mental agony and financial loss to the complainant that too for no fault of her. When her repeated requests and demands went in futile she got issued the legal notice on 26.12.2008. Again there was no response. Hence complainant felt deficiency in service on the part of the OP. Under the circumstances she is advised to file this complaint and sought for the reliefs accordingly. 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they have already credited the said sum of Rs.12,100/- to the account of the complainant on 18.02.2009. Hence the present complaint becomes in-fructuous. According to OP, complainant and OP entered into merchant establish agreement and thereafter EDC machine was given to the complainant. Complainant is bound by the terms and conditions of the said agreement. OP felt doubt about the transactions alleged to have been made by one Mr.Babu. That is why they sought for the better particulars, that act of the OP does not amounts to deficiency in service. The defect if any is due to the unclear documents received at the time of charge back hence OP blocked the said amount. After thorough investigation and verification it has re-credited the said amount to the complainant account. The other allegations made in the complaint are baseless. Complaint is devoid of merits. 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. 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 relief’s 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 Affirmative Point No.2:- Affirmative in part Point No.3:- As per final Order.


R E A S O N S


6. At the outset it is not at dispute that one Mr.Babu has purchased certain articles from complainants shop on 2nd November 2008 worth Rs.12,100/- and made payment of the same by way of credit card issued by the OP. OP has collected the necessary commission in a sum of Rs.305-90 with respect to the said transactions. Complainant thought that the said amount will be added to her account immediately. Though OP credited the said amount to the account of the complainant thereafter without her consent debited the same on 16.12.2008. The repeated requests and demands made by the complainant to rectify the said mistake it went in futile. She even got issued the legal notice. Copy of the same is produced. Again there was no response. Hence complainant felt deficiency in service.


7. As against this it is specifically contended by the OP that they have already credited the said amount to the account of the complainant on 18.02.2009 after detailed verification that is after filing of this complaint. Complaint is filed on 30.01.2009. So this act of the OP on the face of it amounts to an admission of their mistake. It is much contended by the OP that complainant has violated certain terms and conditions of the merchant establish agreement. We don’t find force in the said contention.

8. OP further states that all this confusion happened just because of the unclear documents received at the time of Charge back hence the said amount was blocked. So this defence of the OP also amounts to an admission of commission of fault on their part. Admitted fact need not be proved. Both instances referred to above clearly establishes the deficiency in service on the part of the OP. Merely because OP has already credited the said amount to the account of the complainant on 18.02.2009 that is after filing of this complaint will not absolve its liability.


9. We are satisfied that complainant is able to prove the deficiency in service on the part of the OP. For no fault of her, she is made to suffer both mental agony and financial loss. It is all because of carelessness and negligence on the part of the OP. Having taken into consideration the facts and circumstances of the case as the amount due to the complainant Rs.12,100/- is already credited to account after filing of this complaint justice will be met by directing the OP to pay some nominal compensation with regard to the mental agony suffered by the complainant along with litigation cost. With these reasons we answer point Nos.1 & 2 accordingly and 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.1,000/- along with litigation cost of Rs.500/-. This order is to be complied within four weeks from the date of its communication. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of March 2009.)

M/s. Sastha Warehousing Ltd., No. 595, Dr. Rajkumar Road, Prakashnagar, Bangalore – 560 021. Represented by it’s Director 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.

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.45,000/- 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 approached the OP Bank for credit agreement for the time of 7 years to the tune of Rs.26.3 millions and submitted an application. OP accepted the proposal and issued the credit agreement letter on 27.01.2005 for that reason OP directed the complainant to open an Escrow Account. Complainant deposited Rs.25,000/- on 15.02.2005 and account is opened, but thereafter somehow OP arbitrarily withdrawn the credit agreement letter dated 27.01.2005, without there being any cogent reasons. Due to the untimely withdrawal of the financial assistance complainant is put to greater hardship in his business.

Then complainant asked OP to close the account and refund Rs.25,000/- paid as deposit, there was no response. Then he caused the legal notice on 21.10.2008. Again there was no response. For no fault of his, he is made to suffer both mental agony and financial loss. Thus he felt the deficiency in service on the part of the OP. Hence he is advised to file this complaint and sought for the relief accordingly.



2. On admission and registration of the complaint, when notices were sent to the OP, OP appeared. Inspite of taking sufficient and reasonable time, failed to file the version, cost was imposed it was not paid, it appears OP has no serious defence to make. Hence it is noted as version not filed, then complainant filed affidavit evidence in support of his complaint and produced some documents. OP did not participate in the proceedings. Then the arguments were heard. 3. It is the case of the complainant that in order to promote his business it sought for a financial assistance under the credit agreement for 7 years to the tune of Rs.26.3 millions. OP accepted the proposal and issued the credit agreement letter on 27.01.2005, it is produced. OP imposed the condition that complainant has to open Escrow Account in their Bank. Complainant opened the account by depositing Rs.25,000/- on 15.02.2005. The document to that effect is produced. It is further contended that OP without assigning any cogent reasons abruptly withdrawn the said facility, sanctioned vide letter 27.01.2005. The hostile attitude of the OP and arbitrary act has caused both mental agony and financial loss to the complainant.



4. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony as it finds support from the contents of the undisputed documents. The non-filing of the version evenafter the due appearance and leading the evidence in support of defence if any leads us to draw an inference that OP admits the allegations made by the complainant. Complainant with a fond hope of financial assistance to promote his business deposited his hard earned money of Rs.25,000/- and opened the account at OP Bank. OP took the undue advantage of the said account opened by the complainant then without any cogent reason withdrawn the sanction accorded on 27.01.2005. This act of the OP amounts to deficiency in service.


5. The repeated requests and demands made by the complainant to refund the deposit made by him when the account is closed, went in futile. Even he caused the legal notice, again there was no response from the OP. Under the circumstances complainant must have naturally suffered both mental agony and financial loss due to the deficiency in service on the part of the OP. OP without extending the service retained the said deposit made by the complainant by opening the account, thus accrued the wrongful gain to itself and caused wrongful loss to the complainant, that too for no fault of his. Under such circumstances complainant deserves the relief to some extent as prayed. Accordingly we proceed to pass the following:


O R D E R

The complaint is allowed in part. OP is directed to refund the deposit of Rs.25,000/- made by the complainant at the time of opening of Escrow Account with interest at the rate of 12% p.a. from 15.02.2005 till realization and pay a litigation cost of Rs.500/-. This order is to be complied within 4 weeks from the date of its communication.

COMPLAINANT Sri.R.Umesh,Aged about 28 years,S/o L.K.Ramesh,Resident of No.51/a,2nd Cross, Chinnappa Layout,Kalkere Main Road,Bangalore – 560 016.Advocate – Sri.H.R.Manjunatha

V/s.

OPPOSITE PARTIES

1) The Manager,I.C.I.C.I Bank,Commissionerate Road,Mayo Hall,Bangalore.Advocate – Sri.Mahabaleshwar G.L

2) The Manager,CITI Bank,M.G.Road,Bangalore.


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.1,00,000/- 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 credit card facility from OP. He was regular in making payment of the amount in due. Towards the payment under the credit card for the month of May 2008, he has issued a cheque drawn in favour of I.C.I.C.I Bank – OP.1 for Rs.6,000/- dated 03.06.2008, it is collected by OP.1 agent. Complainant thought that it will be presented on 03.06.2008 and there will no balance. But when he received the statement of Citi Bank that is OP.2 he came to know for the period from 01.05.2008 to 05.06.2008 the said amount was not taken into credit. On the other hand it is mentioned that the said cheque was presented on 30.05.2008 and it was dishonored. Immediately complainant contacted the OP.2 about the irregularities committed.

There was no response. For no fault of his, he was made to suffer both mental agony and financial loss. Though OP have committed mistake on their part in mishandling the cheque by way of wrong presentation but still they took harsh step in entering the name of the complainant in Credit Information Bureau of India Limited, which has affected his status in the society.

He intended to take some financial assistance from Citi Finance, as his name is entered in C.I.B.I.L none of the Bank came forwarded to extend their helping hand. It is all because of carelessness, negligence and deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.


2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant has suppressed certain material facts which are well within his knowledge. He is holding not one credit card but two credit cards. His payment with regard to the dues is irregular and he is a defaulter. A cheque which complainant has presented was dated 28.05.2008 hence it was presented on 30.05.2008. It was dishonored with the shara “insufficient funds”. No fault lies with the OP. OP is agreeable to reverse the other charges levied with regard to the dishonor of the said cheque if sufficient details are given. Without affording the said opportunity complainant has made this false complaint.


As the complainant is defaulter before dishonoring of the said cheque his name is already been included in the list of C.I.B.I.L. There is no deficiency in service on the part of the OP. Complaint is devoid of merits. 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. 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 relief’s 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 is the credit card holder of OP.1. In order to pay the amount in due with regard to the said credit card for the month of May 2008 he has issued a cheque of OP.1 Bank for Rs.6,000/- dated 03.06.2008. Complainant thought that it will be realized in time but to his utter shock and surprise when he received the statement of OP.2 for the period 01st May 2008 to 05th June 2008 that amount was reflected. On the other hand it is mentioned that the cheque dated 03.06.2008 was dishonored.



7. When complainant verified the documents he was shock to know that OP.1 instead of presenting the said cheque on 03.06.2008 presented it on 30.05.2008. Due to the mishandling, carelessness and negligence in wrong presentation of the said cheque on a wrong date it came to be dishonored. With all that OP has included his name in C.I.B.I.L. Hence complainant felt deficiency in service.



8. As against this it is specifically contended by the OP that the complainant did have two credit cards not one. Of course this fact is not disputed by the complainant, but still he failed to mention the same in his complaint. So there is a suppression of material facts. Further it is contended by the OP that the cheque issued by the complainant was dated 28.05.2008 not 03.06.2008. Hence it was presented on 30.05.2008. For want of sufficient funds it was dishonored. So no fault lies with the OP. OP has got a right to proceed against complainant with regard to the dishonoring of the said cheque and he having become a defaulter in not making payment of the amount in due. If OP initiates any legal action that act of the OP does not amounts to deficiency in service. We find force in the defence of the OP.


9. On perusal of the documents produced it appears the complainant become the defaulter in not making payment of the amount in due. Before dishonoring of the alleged cheque his name has already been entered in C.I.B.I.L. So entering of his name in C.I.B.I.L is not on offshoot of dishonoring of the said cheque. Though complainant has stated that he has issued it on 03.06.2008 whereas the Xerox copy now produced before Fora shows that it is dated 28.05.2008 and OP presented the said cheque on 30.05.2008 it bounced with a reason of “Insufficient” funds.


10. Of course complainant has made a serious allegations that the said cheque is forged, date is manipulated, his signature is also forged. If complainant is sure of the said illegal act of the OP nothing prevented him to move criminal law into motion. He would have taken the matter seriously and would have filed criminal complaint to the jurisdictional police. But no such steps are taken.


11. So prima-facie the documents produced by the complainant himself shows that the said cheque is dated 28.05.2008 and it bounced on 30.05.2008. So there is no proof that complainant has issued any cheque dated 03.06.2008. Under such circumstances complainant can’t allege the deficiency in service against the OP. The remedy is still open to the complainant to redress his grievance by filing criminal complaint against OP if he is sure that OP has forged, altered and manipulated his cheque. When such an equally efficacious relief is readily available to the complainant we don’t think that the present complaint is maintainable. Complaint appears to be devoid of merits. Hence complainant is not entitled for the relief. Accordingly we answer point Nos.1 & 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. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 09th day of March 2009.)

-: ORDER:-

This complaint is filed for a direction to the Opposite Party to waive the disputed bill amount and to pay compensation of Rs.8,000/-.


2. The case of the complainant is as under:-

On 10.01.2008 he lost the purse containing the ICICI credit card. On the same day, he telephoned to the Bank to block the Card. However, on the lost credit card, some disputed transactions had taken place. When he informed the customer care of the Opposite Party Bank about the disputed transactions, they asked him to file a police complaint and provide the FIR copy and thereupon they would make investigation on the disputed amount and pay back the same. Accordingly he filed a police complaint and mailed a copy of the FIR to the Bank. Thereafter the Bank informed that the disputed amount is to be paid by him and the Bank is not liable for the said amount. The Bank did not respond to his requests for transaction slips and also did not provide the address of the shops where the disputed transactions had taken place. He did not make the disputed transactions and therefore not responsible to make payment in respect of the same. Hence, the complaint.


3.In the version, the contention of the Opposite Party is as under:-
The complaint is misconceived. The grounds on which the complaint is based are unsustainable in law. The complainant has failed to make out a case of deficiency in service on the part of the Opposite Party. The credit card was sanctioned to the complainant with the belief and assurance that any charge incurred by use of the card shall become due and payable and the same shall be paid on receipt of monthly statement of account on or before the payment due date. As per the terms and conditions governing the credit card facilities whenever a credit card is lost, the same has to be communicated to the Bank. In the present case, by the time, the complainant reported the loss of the credit card, the same was misused. When the complainant called the customer care to report about the loss of credit card, he was informed about the alleged transaction and therefore the alleged transaction had taken place prior to reporting to the Opposite Party. In Annexure R2, the complainant himself had admitted that he lost credit card on 10.01.2008 at 5.30 p.m. and reported the same at 9.25 p.m. and thus there is time gap of about four hours and during that time the alleged transaction had taken place and the Opposite Party cannot be made liable for the same. Though, the fact was communicated, the complainant constantly defaulted in payment of the outstanding balance on the card. The steps initiated by the Opposite Parties to recover due are permissible under law and the same does not amount to deficiency of service. The complainant has approached this Forum with unclean hands and therefore he is not entitled to the relief prayed for. On these grounds, the Opposite Party has prayed for dismissal of the complaint.


4.In support of the respective contentions both parties have filed affidavits. We have heard arguments on both side.


5. The points for consideration:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2.Whether the complainant entitled to the relief prayed for in the complaint?

6.Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : As per final order

For the following:-

-:REASONS:-

7. The fact that the complainant lost his credit card on 10.01.2008 and gave information about it to the concerned Bank on the same day with request to block the card is not disputed. In the letter dated:05.06.2008 addressed to the Opposite Party, the complainant has stated that he lost the credit card at 5.30 p.m. on 10.01.2008 and lodged the complaint with customer care at 9.25 p.m. on the same day with request to block the card. In the version, the Opposite Party has contended that there was a time gap of about four hours, between the time the complainant lost credit card and reported the same to the Bank and during that time of four hours, the alleged transaction had taken place. In support of this contention, the Opposite Party has produced the transaction details. The complainant is a resident of Bangalore and intimation regarding loss of the credit card is also given to the Opposite Party at Bangalore. It is not as if the complainant had lost the credit card in any other place. If any transaction had taken place after 5.30 p.m. and before 9.25 p.m. at Bangalore on 10.01.2008, the Opposite Party becomes not liable for such transaction because the complainant gave intimation regarding loss of the credit card at about 9.25 p.m. about four hours after the loss of the credit card. But from the copy of the transaction details furnished by the Opposite Party, it is seen that the disputed transaction for Rs.26,398/- has taken place at Delhi. The name of the firm is mentioned as TD BHIMJI ZAVERI DELHI PV, DELHI, the city is mentioned as Delhi. The card number mentioned in this document is that of the complainant. Therefore it become difficult to believe that the person who found credit card at Bangalore on 10.01.2008 at about 5.30 p.m. immediately rushed to Delhi and made purchase. Though the complainant filed an application for a direction to the Opposite Party to produce the transaction slip pertaining to the disputed transaction, the same is not produced. Except the slip containing the transaction details, the Opposite Party failed to furnish the transaction slip under which the disputed transaction had taken place. We are unable to believe that within about four hours from getting possession of the credit card, the transaction could be made at Delhi as has been tried to be made out by the Opposite Parties. Admittedly the complainant gave intimation regarding loss of the credit card at 9.25 p.m. on 10.01.2008. In that event, the Opposite Party was required to block the credit card immediately. But from the transaction details furnished by the Opposite Party, it is seen that the payment towards disputed transaction was made on 11.01.2008. From these circumstances, it can be inferred that the Opposite Party did not block the credit card soon after intimation by the complainant on 10.01.2008 at 9.25 p.m. and it made payment towards disputed transaction on the next day namely 11.01.2008. This act of the Opposite Party clearly amounts to deficiency in service and as such the complainant cannot be asked to make payment towards the disputed transaction. Therefore, we hold that the Opposite Party is liable to waive the amount claimed towards the disputed transaction from the complainant so also to waive all the charges raised on that amount. The complainant is also entitled to compensation of Rs.2,000/- towards inconvenience and mental agony suffered by him. In the result, we pass the following:-

-:ORDER:-

• The complaint is ALLOWED IN PART.
• The Opposite Party is directed to waive the claim in respect of the disputed transaction so also the charged levied thereon and to pay compensation of Rs.2,000/- to the complainant. Compliance of this order shall be made within eight weeks from the date of communication.
• Send a copy of this order to both parties free of costs immediately.
• Pronounced in the Open Forum on this the 30th DAY OF MARCH 2009.

Sd/- Sd/-
MEMBER PRESIDENT

IInd ADDL. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN

No.1/7, Swathi Complex, 4th Floor, Seshadripuram, Bangalore-560 020

consumer case(CC) No. CC/1331/2008

Mrs. Saraswathi Pandurangan
...........Appellant(s)
Vs.

The Manager, ICICI Bank Ltd.,

ICICI Bank Ltd.,

Mr. Amith Chaurasia
...........Respondent(s)


Mrs. Saraswathi Pandurangan, W/o. Sri. Pandurangan, 41, ‘Sri Narayana Nilayam’, II Main, Udayashankar Street, Udaynagar, Bangalore-560 016. Complainant.

V/S


1. The Manager, ICICI Bank Ltd., No.1, Ground Floor, ICICI Bank Tower, Shobha Pearl, Opposite to Mayohall, Commissionerate Road, Bangalore-560 025

2. ICICI Bank Ltd., ICICI Bank Customer care, P.O. Box No. 20, Banjara Hills, Hyderabad-500 034.

3. Mr. Amith Chaurasia, ICICI Bank Credit Card Collection Centre, Mytrii Centre, West Wing, I Floor, No. 4/10, Hosur Road, Bommanahalli, Bangalore. Opposite Parties

ORDER By the President Sri. S.S. Nagarale


This is a complaint filed U/Sec. 12 of the Consumer Protection Act, 1986. The brief facts of the case are that, the opposite parties are the credit institutions offering credit services to the public at large.

The complainant by virtue of which the complainant was given a ICICI Bank Kingfisher Airlines credit card bearing No. 4076 5120 0791 0008. It was assured by the opposite party that the said card is most exclusive card in India that allows the members to enjoy the good times. The opposite parties had also provided airport lounges, Kingfisher parties, fashion shows, sporting events, International golf holiday packages, for booking air tickets, hotel reservations, car rental services and inquiry about travel destinations. The said card was also to be accepted at all VISA/Master Card merchant establishments worldwide.

The opposite party has assured that the card could be activated within 24 hours. The credit limit of the card was Rs.25,000/-. The opposite parties had also given other Add-on credit cards, which could have been utilized with the specific credit limits provided therein. The following are the four credit cards with respective numbers issued to the complainant:- 1. 4477 4684 6553 2005 credit limit Rs. 25,000-00 2. 4076 5120 0791 0008 credit limit Rs. 25,000-00 3. 4076 5120 0791 0107 credit limit Rs. 25,000-00 4. 4477 4697 0439 5006 credit limit Rs. 25,000-00 Though the cards were taken during 2005-06 till date, the complainant has not swiped any of the cards and as such till date she has not utilized any services provided by the opposite parties. The complainant had taken a life insurance policy namely, “ICICI Pru Save `n’ Protect” for a sum of Rs.1,25,000/- with ICICI Prudential Life vide Insurance Policy bearing No. 00289137 on 18/01/2003. This insurance policy is altogether a different transaction though with ICICI group.

This policy was taken much prior to availing the facilities with the opposite parties. The complainant had opted for regular monthly premiums. The due date for payment of monthly premium was 21st of every month. Though she has opted for payment of monthly premium in the beginning, the complainant subsequently changed the same for annual premium vide letter dated 12/01/2005. The complainant is paying the monthly premium regularly through cheque payments since 18/01/2003 and has not so far defaulted.

So also for the premium due for the year 2005, the complainant had paid Rs.9,838/- on 12/01/2005 by way of cheque. Thus there were no dues from the complainant. The complainant had earlier opted for ECS facility for the payment of monthly premium. Since the complainant changed the method of payment from monthly to annual payment, she requested the Operation Manager, ICICI Pru Life Ltd., Bangalore for cancellation of ECS vide letter dated 12/01/2005.

Thereafter, the complainant has paid the annual premium regularly until 2007. For the year 2007 the complainant has paid the annual premium of Rs.10,147/-. The said premium was paid during March, 2007. In the meantime, the complainant received a statement from the opposite parties for the period 19/01/2007 to 18/02/2007 wherein the opposite parties have debited to the account of the complainant Rs.10,147/-.

The opposite parties issued further notices for March, April, May, June, July, August, September and so on, by increasing the due amounts with additional interest, late payment fee, service tax, and the like. On persisted enquiries with the opposite parties, the complainant was informed that the members availing the credit card services are provided with “Big Junction Payment” facility through which the insurance premium will be paid directly by the opposite parties to the credit of the members and subsequently the said amount will be collected from the members. Therefore, the complainant wrote to the opposite parties on 16/04/2007, requesting them to immediately cancel the “Big Junction Payment” facility.


The complainant also requested to reverse the excess payments from ICICI Prudential to the credit card account. Immediately after this letter dated 16/4/2007 to her surprise the complainant received a letter dated 18/04/2007 from ICICI Prudential Life Insurance that they have received additional premium amount of Rs.10,147/- towards the policy.

Accordingly they had issued a refund cheque for the excess amount of Rs.10,147/- drawn on ICICI bank. It is pertinent to note here that instead of adjusting the amounts against the credit card dues despite the request the opposite parties in collusion with ICICI Prudential Life Insurance have delivered the refund cheque to the complainant with a malafide intention to retain the overdue account created by them.


The opposite parties are creating circumstances to suite their business activities in order enrich themselves which is unlawful and illegal. The request made by the complainant was not considered by the opposite parties for the reasons best known to them. The opposite parties have resorted to third degree tricks for the purpose of illegal collection. On 21/11/2007, the complainant wrote to the opposite parties requesting to reverse all the debits.

It was brought to the notice of the opposite parties that the complainant has paid a sum of Rs.10,147/- to the opposite parties immediately after she received the refund cheque from ICICI Prudential Life Insurance. The opposite parties have willfully refused to take any letter sent by the complainant. But till date, there is no reply. On 10/12/2007, the complainant again wrote to the opposite parties requesting them to reverse the payment of Rs.4,573/-. The opposite parties on receipt of the said letter had merely returned it to the complainant with a marking in the left hand side at para-2 as “card No. is incorrect”. The complainant again wrote to the opposite parties on 17/02/2007, providing with numbers of all the four credit cards and requested them to reverse the additional charges within 15 days from the date of receipt of the letter.


Till date, the complainant has not received any reply from the opposite parties. With these attitudes of the opposite parties, the complainant has been driven to undue hardship, mental agony and depression. Till date, the complainant has not availed any credit card service form the opposite parties. The complainant had paid the premium amounts during March, 2007 and the same was cleared on 04/03/2007.


If the opposite parties had intimated the payment by them, as on 18/02/2007, the complainant would have paid the same amount to the opposite parties on or before 04/03/2007, in which case there would not be any delay on the part of the complainant. For the mistake of the opposite parties, the complainant would not have been burdened with these additional payments. The only intention of the opposite parties is to extract moneys from public like the complainant and enrich themselves with unlawful sources.

That apart, the complainant has been mentally harassed by the opposite parties by creating unnecessary tensions. Therefore, the complainant is filing this complaint seeking compensation from the opposite parties. The complainant has spent her valuable time in replying to the opposite parties, in visiting their counsels and opposite parties and has spent thousands of rupees towards incidental expenses.

The complainant is a consumer and hence the complaint is maintainable. Hence, the complainant prayed to award compensation of Rs.1,00,000/- towards mental agony, hardship and incidental expenses, in the interests of justice and equity.


2. Notice issued to opposite parties through RPAD. Notice served. Opposite parties appeared through counsel and filed defense version stating that, the complainant availed the Credit Cards from the opposite parties. The complainant had opted for Insurance Policy from ICICI Prudential. Opposite parties and ICICI Prudential Ltd., are two different legal entities. It is denied that the complainant had never and ever gave any instruction to the opposite parties to pay the insurance premium. The complainant had not approached this Forum with clean hands. The complainant had knowing fully well that she had instructed the opposite parties to pay the premium amounts and hence had falsely alleged against the opposite parties. The opposite parties produced letter of Utility Bill Payment and Renewal Premium Receipts.

As per the request and instruction of the complainant, the amounts were paid under the said Credit Card and as per the Credit Card Policy, the complainant is liable to pay the amounts utilized under the said credit card. The facts remains that the opposite parties have parted with their money for which they are entitled to recover the same with interest. In view of the foregoing facts, the present complaint is liable to be dismissed with costs.


3. Affidavit evidences are filed. Arguments are heard. 4. The points for consideration are:- “Whether there was any deficiency in service on the part of the opposite parties?” REASONS 5. It is an admitted case of the complainant that, she had taken 4 credit cards from the opposite party Bank. The credit cards were never used by her till date and she has not utilized any services from the opposite party. It is also an admitted fact that the complainant has taken life insurance policy with ICICI Prudential. This transaction is a different transaction all together.

The opposite party has also clearly admitted in the defense version that opposite parties and the ICICI Prudential Limited are two different legal entities. The policy was taken by the complainant prior to taking credit cards. The complainant has earlier opted for ECS facility for payment of monthly premium. She requested the ICICI Prudential Life Limited for cancellation of the ECS by letter dated 12/01/2005. She had paid the premium amount through cheque. In the year 2007 the complainant has paid annual premium of Rs.10,147/- vide cheque. Complainant received statement from opposite parties for the period 19/01/2007 to 18/02/2007 wherein the opposite parties have debited to the account of complainant Rs.10,147/-. It is shown in the statement that opposite party had paid the amount to ICICI Prudential Life Insurance.

This is admittedly a deficiency in service on the part of the opposite parties. The question of debiting to the account of complainant Rs.10,147/- does not arise at all because the complainant had paid annual premium amount of Rs.10,147/- vide cheque No.855019. The complainant received refund cheque for Rs.10,147/-. It is the case of the complainant that instead of adjusting the amount against the credit card dues the ICICI Prudential Life Insurance had given a refund cheque to the complainant. It is the case of the complainant that, complainant never made any request or given consent to pay the premium amount on her behalf.

Opposite party never produced any record or evidence to show that the complainant had instructed or given consent for payment of premium amount through credit card account. So, under these circumstances the payment of premium amount by the opposite party Bank is without authorization. It is also an admitted case of the parties that the complainant has paid Rs.10,147/- to the opposite party Bank after she received the refund cheque from ICICI Prudential Life Insurance. Therefore, whatever the amount paid by the opposite party Bank to the ICICI Prudential Life Insurance has been received by the opposite party Bank.

Therefore, the complainant need not pay anything in respect of the credit card accounts. The complainant had not gave any instructions to the opposite party Bank to remit the amount to the credit card accounts. Under the circumstances, if the amount has been paid by the opposite party Bank, which was without authorization. Therefore, no fault can be attributed to the complainant. The complainant had admittedly paid the premium amount through cheque.


If she had given authorization or instruction to the opposite party Bank to pay the premium amount, the question of giving cheque to the ICICI Prudential Life Insurance could not have arisen. The ICICI Prudential Life Insurance could have directly remitted back the amount to the opposite party Bank since the premium amount had already been given by the complainant by cheque. Instead of that the Prudential Life Insurance had sent a refund cheque to the complainant and soon after getting refund cheque, the complainant deposited Rs.10,147/- to her credit account with the opposite party Bank. Therefore, claiming interest or late payment penalty etc., by the opposite party Bank does not arise. The complainant cannot be penalized for no fault of her. The opposite party has committed deficiency of service in remitting the premium amount to the ICICI Prudential Life Insurance without the instruction or consent or authorization from the complainant.


So under these circumstances, the opposite party Bank is not entitled to claim interest and late payment fee or penalty etc. For the mistake of the opposite party the complainant should not suffer. Consumer Protection Act is a social and benevolent legislation intended to protect better interest of the consumers. The complainant though has taken credit cards from the opposite party never used or taken facility or service of the cards till date. Therefore, there is no question of payment of any interest or penalty etc. in respect of credit cards account. The complainant has prayed Rs.1,00,000/- towards mental agony, hardship etc. There is no proof or satisfactory evidence or reasons to claim this exaggerated amount for mental agony, etc.


The complainant has not proved by placing sufficient material or evidence before the Fora that she was put to mental agony, hardship, inconvenience etc., on account of the opposite party Bank debiting sum of Rs.4,573/- into her account. Therefore, on the facts and circumstances of the case, I am of the opinion that it is a not a fit case to grant any compensation to the complainant. The ends of justice will be met in declaring that the complainant is not payable or is not due any amount in respect of her credit card accounts. In the result, I proceed to pass the following:-


ORDER


6. The Complaint is partly allowed. It is declared that the complainant is not payable any amount or is not due any amount to the opposite party Bank in respect of credit card accounts.

III ADDL,DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

No.8,Sahakara Bhavan,Cunningham Road,Bangalore-560 052.

consumer case(CC) No. CC/2662/2008

Shri. Y. V. Jayapal.
...........Appellant(s)
Vs.

Collection Manager, ICICI Bank Ltd.
...........Respondent(s)

BEFORE:
1. Dr. Subhashini
2. H.M.SHIVALINGAPPA
3. N. SRIVATHSA KEDILAYA


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER

ORDER

1(a). Alleging deficiency of service by the Opposite Party-Bank (hereafter OP-Bank), their Customer namely the Complainant has filed this Complaint on 10.12.2008 under section 12 of the Consumer Protection Act, 1986 seeking certain reliefs which according to the Complainant, are appropriate.

(b) The Complaint in brief is as hereunder: Originally a Credit-Card was issued to the Complainant by Tata Finance Limited. That Credit-Card is styled as Tata Amex Credit-Card. It bears No.37704010996759. The OP-Bank acquired the portfolio of that Card in business and the Complainant was accordingly answerable to the OP-Bank. Infact, it was agreed that the Complainant had to pay Rs.9,000/- in full and final settlement of the dues under that Card to the OP-Bank and accordingly, it was paid as long back 30.08.2005. However, to the surprise of the Complainant, he received a notice from the OP-Bank dt.12.4.2008 stating that certain amount is still due from the Complainant in respect of that Credit-Card and called upon the Complainant to clear the same. Infact, the Complainant had received a receipt from the OP-Bank for having paid a sum of Rs.9,000/- in full and final settlement. It is revealed that the said letter does not find the date as such. Even then, the letter dt.30.08.2005 issued to the Complainant by the OP-Bank itself confirms the settlement of the dues to the OP-Bank touching that Credit-Card fully and finally. It is mentioned in that letter dt.30.08.2005 that it was a Confidential Letter. Inspite of the admission in that letter, the OP-Bank have chosen to cause such a notice. Added to that, the goons of the OP-Bank have started causing criminal intimidation to the Complainant if the alleged amount due is not cleared. The Complainant explained everything telephonically, but it did not give any positive relief. Then, he had to write to the OP-Bank in detail regarding the same and the OP-Bank was not prepared to accept that notice. The Complainant had chosen to a cause notice even thereafter also to the OP-Bank calling upon them to issue No Due Certificate to him since the payment was made long back fully and finally. The OP-Bank did not respond favourably. That has annoyed the Complainant. In the circumstances, this Complaint is necessitated to give a direction to the OP-Bank to issue No Due Certificate to the Complainant in respect of that Credit Card Account NO.3770-0411-0996-759 and also to compensate him in a sum of Rs.50,000/- for the mental agony and harassment along with the cost of this litigation.



2. Though in the beginning, the OP-Bank did not make available their Version. Subsequently, after the evidence of the Complainant is produced, they have chosen to seek the leave of the Forum to permit them to produce their Version and evidence. Accordingly, the permission was granted and the Version and also the evidence in the form of affidavit were made available. The defence of the OP-Bank in brief is as hereunder: This Complaint is neither maintainable at law, nor on facts of the case. This Complaint is a misconceived one. The Complainant has twisted the facts to suit his convenience. This Complaint is based on presumptions and conjectures. The Complainant has failed to make out a case. Without prejudice, it is contended that the Complainant had availed previously a Credit-Card from Tata Amex and that Company was taken over by the OP-Bank and the said Account of the Complainant was in operation. Since there was no reflection in the System regarding the payment made by the Complainant and since it was noticed subsequently, the OP-Bank through their letter dt.12.4.2008, called upon the Complainant to make that payment so that they could give the NO Due Certificate to the Complainant. The Complainant could have averted this litigation. The OP-Bank is ready and willing to give the No Objection Certificate to the Complainant. In the circumstances, this Complaint has to be dismissed with cost of the OP-Bank.


3. By way of evidence, the Complainant has produced his affidavit in the first instance on 28.1.2009 along with 4 documents. After the production of the Version of the OP-Bank, the Complainant has made available his additional affidavit on 21.2.2009. For the OP-Bank, their Manager-Legal has made available his affidavit on 12.2.2009. At the end, this Forum heard on merits. 4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are:

(i) Whether the OP-Bank remained deficient in rendering services to the Complainant in respect of the Credit-Card referred to in the Complaint?

(ii) Whether the Complainant is entitled for any relief against the OP-Bank in this proceeding?

(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): The OP-Bank is not made available any documentary evidence as such. However, the Complainant has chosen to produce certain documents. The first document so made available is styled as Payment Receipt. It is the one issued by the OP-Bank. It is the Customer Copy. It stands in the name of the Complainant. It refers to the Credit-Card Account mentioned in the Complaint. Significantly, it does not contain the date of issuance of that receipt or the date of receipt of the amount mentioned therein. It is for a sum of Rs.9,000/-. Even if it is presumed that this document does not take us in the proper direction, the 2nd document so made available is a very material document. Admittedly, it is the one issued by the OP-Bank to the Complainant on 30.8.2005. It refers to the Credit Card Account Number reflected in the Complaint. In that letter, there is a specific recital by way of confirmation by the OP-Bank regarding the receipt of Rs.9,000/- from the Complainant by way of full and final settlement. Significantly, it refers to Receipt No.1122889. However, that receipt or a copy of the same is not made available in evidence in this case. It is not the Document No.1 referred to above since that receipt bears a different number as 1122780. Wherefore, from the above letter dt.30.8.2005 the genuineness of which is not questioned by the OP-Bank, it is reasonable to opine that the OP-Bank has received a sum of Rs.9,000/- from the Complainant on 30.8.2005 in respect of Credit-Card in question.

(b) When that is the position, if the things remained otherwise, it was for the OP-Bank to take appropriate steps. Strangely, the OP-Bank has not corresponded with the Complainant in any manner regarding the same and on the other hand, according to the Complainant, for the first time they have come up with the demand through the letter dt.12.4.2008 stating that he is due a certain amount in respect of that Credit-Card Account and they are entitled to recover the same from him. Infact, a sum of Rs.10,607.87 has been so claimed by the OP-Bank from the Complainant as per that letter dt.12.4.2008. If really any amount was due from the Complainant touching that Credit-Card, there could not have been such an inordinate delay of about 3 years in contending that the Complainant is still due certain amount to the OP-Bank. After sleeping over their right if any, now the OP-Bank have woke up and have chosen to make such a demand as per that letter dt.12.4.2008. Strangely at this point of time, a contention is taken by the OP-Bank that the alleged payment by the Complainant is not reflected in their System. If that was really true, they could have made available the Statement of Accounts touching that Credit-Card which they are legally obliged to provide to the Customer-Complainant every month and if there was no payment on 30.8.2005 in a sum of Rs.9,000/- to the OP-Bank, certainly that could have been reflected in that Statement for the subsequent month. Very strangely and for the reasons best known to the OP-Bank, they have not made available such a documentary evidence here. It appears, the Complainant has done what best can be done by him in a situation like this. Though we find an undated receipt which we have referred to above, we also find a Confirmation Letter having a specific date to the effect that the payment of Rs.9,000/- in full and final settlement of the claim has been confirmed and that letter is dt.30.8.2005.


(c) Further, instead of driving the Complainant to this litigation, the OP-Bank could have properly responded to the letters addressed by the Complainant to them from time to time. The Complainant has made available the copies of the letters and also the documentary proof for having sent them through registered post and also through certificate of posting. In the circumstances, there is every reason to opine that those letters have been served on the OP-Bank and if they were honest in their approach, they could have certainly responded to those letters at the earliest instead of imposing this litigation on the Complainant.


(d) That apart, it is clear from the defence of the OP-Bank that they are not prepared to reveal the truth of the matter to this Forum and that on the other hand, they have chosen to remain dubious. As stated supra, in their Version itself, among other things the OP-Bank have clearly contended that they are ready to give No Objection Certificate to the Complainant. Alas ! they have shown their readiness only in their Version and never acted upon in that regard even after the Complainant filing this Complaint against them. The Complainant wants a No Due Certificate and not any No Objection Certificate. As far as that Certificate is concerned, the OP-Bank has blissfully remained silent.


(e) Nodoubt, apart from the above, the Complainant has also contended in the Complaint and also in his evidence in the form of affidavit and additional affidavit that the OP-Bank has been indulged in extra judicial remedies to recover the alleged arrears from the Complainant touching that Credit-Card. It is the very definite case of the Complainant that after that full and final settlement, he did not make use of that Credit-Card at any point of time. Where is the evidence on record that after that payment, the Complainant had transacted on the strength of that Credit-Card all these years? Wherefore, the OP-Bank cannot take recourse to extra legal remedies. Nodoubt, there is no clinching evidence by the Complainant regarding the above high-handed act of the so called goons of the OP-Bank. Therefore, we are not inclined to give a direction touching that aspect of the matter. However, it is relevant to observe that if that allegation is true, the OP-Bank has to put an end to it without loss of time not only in their own interest, but also in the interest of their Customers. Even then, the conduct of the OP-Bank in not issuing the No Due Certificate to the Complainant would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986. Accordingly, this point is answered.


7. POINT NO.2: It is needless to say that any such demand would certainly cause mental harassment and physical discomfort to the Complainant-Customer. Therefore, that need be taken into consideration in a situation like this. Especially it is the very case of the Complainant that he was not due to pay anything regarding that Credit-Card. For that matter, at the course of arguments, the learned counsel representing the Complainant-Card Holder has submitted that the concerned Card has been diagonally cut and destroyed no sooner that payment in full is made and that it was a surprise for him to receive that letter dt.12.4.2004 after lapse of about 3 years. That being the position, a reasonable compensation need be provided to the Complainant to secure the ends of justice. Further what we feel is, the OP-Bank could have certainly avoided this litigation instead of taking a dubious stand in this proceeding. Therefore, it is also proper on our part to award a reasonable amount to the Complainant by way of cost of litigation. Having regard to the relevant aspects, we fix compensation payable in a sum of Rs.5,000/- and the cost of the litigation in a sum of Rs.1,000/-. Accordingly, this point is answered. 8. POINT NO.3: In the result, we proceed to pass the following:


O R D E R


Since the OP-Bank have remained deficient in rendering services to the Complainant as per the provisions of the Consumer Protection Act, 1986 and since the Complainant has been put to agony, sufferance and loss on account of the same, this Forum directs the OP-Bank not only to issue NO DUE CERTIFICATE to the Complainant in respect of the Credit-Card referred to in the Complaint, but also to pay a sum of Rs.5,000/- (Rupees five thousand) to the Complainant by way of compensation for the agony, sufferance and loss and another sum of Rs.1,000/- (Rupees one thousand) by way of litigation expenses within 30 days from this date and report compliance positively.

Ms. Maria Ninette Lobo,
H.No.140, Gaourawado,
Calangute, Bardez, Goa. ........................................Complainan t

V

ICICI Bank Ltd.,
Mapusa Branch,
Mapusa, Goa. .................................Opposite Party

Date: 05/03/2009

O R D E R

(Per Smt Shubhalaxmi U.P.Raikar, President)

Complainant is Account Holder of Opposite Party and decided to close this Account and accordingly issued instructions to Opposite Party vide acknowledgement duly signed and issued on 15/07/2006 by one Shri Prashant M. Joni. Complainant did not operate the said Account since March 2005. The Complainant issued letter to Opposite Party requesting them not to operate the Account and also surrendered the documents. The Complainant Advocate called upon the Opposite Party to desist from debiting. Despite of the facts of all information duly received the Opposite Party proceeded to remit the said amount and went on sending summary of Account held till year 30/09/2007 and the Complainant filed a Complaint dated 13/11/2007 which is within limitation.

We find that the Opposite Party have arbitrarily done the said Act of debiting the amount and non closure.

The Opposite Party though filed Written Version, Affidavit in evidence failed to file any convincing document as to bank policy and rules which entitles the Opposite party to maintain minimum balance in the Account of the Account Holder during the subsistence of the Account. Assuming even if such policy or rule is there such policy rule cannot be forced upon the Complainant/Consumer. Nothing has been produced by Opposite Party to fortify the defence. We find that the Act of maintaining the Account by going on debiting as aforesaid for the period of 2 years inspite of information given is an arbitrary act and deficiency in service and negligence.



In the light of all aforesaid, we pass as below our:

ORDER

1.Opposite Party to pay a sum of Rs.10,000/- to the Complainant.
2.Opposite Party is directed to pay a sum of Rs.1,500/- towards legal expenses and Rs.2,000/-towards damage and torture.
3.Order to be complied within 30 days from the receipt of this order.

Shri Sandesh H. Naik,
House No.90, Nagzar Curti,
Ponda - Goa ……………….Complainant

V

ICICI Bank Ltd. represented by its
Authorised Officer,
Office - ShivTowers,
Patto, Panjim – Goa ....………...…..Opposite Party -1

ICICI Bank Ltd.
(represented by it Authorised Officer)
Ground Floor, WoodMailPlaza,
Opposite RahejaTower, L.B.S. Marg,
Thane (West) 400 604. ....………...…..Opposite Party -2

Tata Finance Company Ltd.,
SushilaBuilding, Panaji – Goa. ....………...…..Opposite Party -3

Tata Finance Ltd.,
(Two Wheeler Finance Division)
1st Floor, Chambalkar House,
J. M. Road, Pune 411 004. ....………...…..Opposite Party -4


Date: - 04/03/2009



O R D E R

(Per Smt. Shanti Maria Fonseca, Sr. Member)

Brief facts of the case:-

1.It is the case of the Complainant that in November 2003 he approached the party no.3 for a loan of Rs.36,199/- (Rupees thirty six thousand one hundred and ninety nine only) to purchase an Activa Honda Scooter bearing registration no.GA-05-A 1402.


2.It is further his case that as a security deposit towards repayment of the said loan amount he deposited a fixed deposit amount of Rs.12,670/- (rupees twelve thousand six hundred and seventy only) with the Opposite Party 3.

3.According to the Complainant after finding that the Opposite Party was charging exorbitant rates of interest and charges he made full payment to the Opposite Party No.3 in November 2004.

4.The grievance of the Complainant is that after payment of the entire outstanding loan amount of the said scooter and closure of the loan account, the Opposite Party, continued to present the post-dated cheques that they had received from him to the Goa State Co-opertive Bank Ltd.

5.As per Roznama dated 28/11/06 this matter is proceeding ex-parte against the Opposite Party 1, Opposite Party 2 and Opposite Party 3. As per application dated 22/02/07 made by the Complainant the Opposite Party No.4 has been deleted as a party in these proceedings.

O B S E R V A T I O N S

(i)On a perusal of documents placed before us we find no proof of cheques being encashed by the Opposite Parties after the Complainant stopped payment vide his letter dated 9/11/2004. The letter of the Goa State Co-operative Bank Ltd., Kerim, Ponda dated 28/4/06 is also on record which states that the bank had stopped payment of cheques as per the directions of the Complainant in his letter dated 9/11/04.

(ii)Except for asking for compensation there is no prayer made by the Complainant seeking any relief on grounds of deficiency in services.

(iii)The Complainant has also failed to satisfy this Forum as to how he arrived at a figure of compensation for Rs.1,25,000/- (Rupees one lakh twenty five thousand only) a figure of cost of Rs.10,000/- (Rupees ten thousand only) when the cost of his bike and loan availed from the Opposite Parties was Rs.36,199/- (Rupees thirty six thousand one hundred and ninety nine only)



(iv)It is our considered opinion after going through the complaint, documents and all other material that has been placed on record before us that the complainant has not been able to prove any deficiency in service on the part of any of the Opposite Parties.

In the aforesaid circumstances we pass the following:

O R D E R

1.Matter stands disposed as dismissed.

2.No order as to costs.