Sri Rajesh, S/o. Sheenanaik,

Aged about 33 years,

Kalvenahalli Thandya,

Pillenahalli Post,

KADUR TALUK.

CHIKMAGALUR DISTRICT.

(By Sri. H.R. Badiya Naik, Adv.)

V/s

OPPONENTS:

1. The Manager,

H.D.F.C. Bank Ltd.,

Severlence Road,

Neharu Road Cross,

SHIVAMOGGA – 577 201.

2. The Manager,

Authorised Collection Agency,

H.D.F.C. Bank Ltd.,

Upstairs of Shanbhog Hotel,

N.M.C. Circle,

CHIKMAGALUR – 577 101.



3. Sri Chidananda, S/o Kempaiah,

Recovery Officer,

Collection Executive of Authorized –

Collection Agency,

H.D.F.C. Bank Ltd.,

Upstairs of Shanbhog Hotel,

N.M.C. Circle,

CHIKMAGALUR – 577 101.

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

1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponents for the deficiency of service and prays for a direction to deliver the repossessed vehicle along with a compensation of Rs.25,000/- with interest of 24% P.A. as detailed in the complaint.

2. The facts of the case in brief are as follows:-

He has raised a loan from the 1st opponent towards the purchase of the vehicle and at the time of obtaining the loan, he paid Rs.8,000/- down payment and remaining amount will be paid in equal monthly installments amounting to Rs.1,060/- and has issued cheques bearing Nos.161141 to 161173 and subsequently purchased Bajaj City 100 bearing No.KA-18-L-8805. The 2nd opponent is the authorized collection agency and he is looking after the 1st opponent transaction and the 3rd opponent is the collection executive working under the 1st and 2nd opponents. Such being the case, he was regular in payment of the installments and having good relationship with the opponents and the complainant used to pay the installment amounts in advance to the 3rd opponent and the 3rd opponent used to give receipts towards the payment and in certain payments has failed to issue receipts.

The available payment receipts are producing before this Forum. On 30.08.2008, the 3rd opponent came to the complainant and asked for the vehicle for the purpose of collection. Believing the words of the 3rd opponent, the complainant handed over the vehicle. Subsequently, he received a notice dtd.05.09.2008 demanding Rs.40,060=37 by the 1st opponent. Immediately, he enquired with 3rd opponent through telephone but the 3rd opponent has not received any phone calls. As such he gave a complaint on 11.08.2008 against the opponents to the District Commissioner with respect to taking of the vehicle and the said complaint is under investigation. Subsequently, the complainant demanded for account extract in order to verify the total amount paid by him, but the opponents failed to furnish the account extract. As such, the complainant suffered inconveniences and mental agony.

The opponents have seized the vehicle without prior intimation and without vehicle the complainant has suffered a lot of inconveniences and the opponents are not entitled to seize the vehicle without prior notice. Inspite of payments made by the complainant, the 1st to 3rd opponents have seized the vehicle, which amounts to deficiency of service. Hence, prays for the direction to redeliver the vehicle along with the compensation as prayed above.

3. After the service of the notice, the opponents 1 to 3 have appeared through their counsel and the 1st opponent has filed their version and contended that the complainant has filed this complaint by suppressing the material facts and he has not committed any deficiency of service. It is not correct that they have received Rs.8,000/- down payment. But the advance amount of Rs.7,993/- has been paid to the dealer by the complainant and he has issued cheques for amount of Rs.1,066/-. He has raised a loan of Rs.30,600/- and the complainant agreed to pay the interest of Rs.7,560/- and entered into an agreement to pay Rs.38,160/- in 33 monthly installments and agreed to pay 5th of every month without default. But the complainant against to the terms and conditions of the agreement has committed default in paying the monthly installments. The complainant so far has not paid 27 installments. The cheques issued were returned unrealized. Inspite of requests and letters issued against the complainant has not paid the amount and neglected to honour the contractual obligations entered between them.

The 1st opponent has issued a loan recall notice dtd.17.03.2008 requesting the complainant to settle the outstanding amount and intimated the complainant, if he failed to comply and they will be repossessed the vehicle. Inspite of receipt of the said notice, the complainant has not cleared the outstanding amount and failed to follow the terms and conditions of the agreement. Due to his negligence, the opponents forced to repossess the vehicle and after repossession of the vehicle, they have issued a presale notice dtd.05.09.2008 requesting the complainant to pay outstand amount of Rs.40,060=37 within 7 days, but the complainant did not turn up. Subsequently, the vehicle was sold to the highest bidder. Thus, they acted according to the terms and conditions of the agreement and there is no deficiency of service and prays for the dismissal of the complaint.

4. The complainant has filed his affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P13.

5. The 1st opponent has also filed his affidavit evidence as RW.1 along with the documents and the same have been marked as Exs.R1 to R19.

6. We have heard the arguments advanced by both the parties’ counsels.

7. 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?

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

i) Point No.1: In the Negative

ii) Point No.2: In the Negative

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

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

9. Point Nos.1 & 2: There is no dispute with respect to the loan raised by the complainant for purchase of the vehicle and there is also no dispute that the vehicle was repossessed by the 1st opponent. The only dispute raised by the complainant is that inspite of regular payment, the opponent has repossessed the vehicle without prior intimation of seizer. Thus, they are at deficiency of service and pray for the redelivery of the vehicle.

10. On the contrary, the opponents have taken a contention that the complainant is not regular in paying the installments and nearly 27 cheques were returned unrealized. Thus, they have issued a notice for repossession and subsequently, they have issued presale notice calling upon the complainant to clear the outstanding due inspite of service of notice the complainant failed to pay the amount. Thus, they have acted according to the agreement and sold the vehicle for recovery of the outstanding amount. As such, there is no deficiency of service and prays for the dismissal of the complaint.

11. The complainant in order to substantiate his case has produced cash paid receipts, which were marked at Exs.P2 to P6 and has produced a pass book to show the payments made to opponent through cheques marked as Ex.P1 and also produced notice issued dtd.05.09.2008 and 20.12.2007, which were marked as Exs.P8 and P12 respectively. The opponent has also filed agreement marked as Ex.R3 and has produced statement of accounts of the complainant to show how much amount paid by the complainant towards the E.M.I. and how much due, which is marked at Ex.R17.

12. On perusal of Ex.R17, we came to know that the complainant is a sever defaulter of payments and almost all cheques tendered for realization were bounced and the opponent has charged Rs.450/- on each cheque bounce and he has charged overdue charges on the outstanding monthly balance. The said statement of account was not disputed by the complainant. The amount paid through cash by the complainant were also reflected in the Ex.R17 i.e., statement of accounts. The Ex.P7 is the receipt towards the amount of Rs.9,000/- paid in the name of Swamy Naik, who is also one of the borrower from the opponent. The statement of Swamy Naik is also produced before this Forum by this opponent and marked as Ex.R19, where we noticed that the said amount of Rs.9,000/- was reflected in the account of the Swamy Naik. Thus the complainant cannot claim that he has paid Rs.9,000/- as per Ex.P7 towards his loan.

13. The learned advocate for the opponent has vehemently argued that as per the terms and conditions of the agreement that they have issued a notice before taking repossession, the same is also not disputed by the complainant. Knowing fully well that the complainant is a defaulter in paying the installments, he has filed this false complaint and it is pertinent to note that he has not placed any materials to show that he is regular in paying the installments parallel to Ex.R17.

As such on perusing the Ex.R17 i.e., account statement, we come to the conclusion that the complainant is a defaulter in paying as much as 27 installments along with interest with cheque bounce charges. As such, if the complainant is in default in payment of the installments and after taking repossession of the vehicle for the purpose of sale, the complainant cannot claim for redelivery of the vehicle and it is also pertinent to note that he has not shown any interest for payment of the outstanding amount and also not shown readiness to pay the balance amount payable according to him. Such being the case, the complainant cannot claim for redelivery of the vehicle seized.

14. It is pertinent to note that the said vehicle is already sold to the highest bidder and even after selling of the vehicle, the complainant is in due. But we cannot consider how much is due in this complaint. As far as the deficiency of service, the complainant has failed to substantiate the allegation made against the opponent and the relief claimed by the complainant is not justifiable. As such, we found no deficiency of service on the part of the opponent and the complaint is liable to be dismissed. For the above said reasons, we answer the point Nos.1 and 2 in the negative.

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

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

1. The complaint filed by the complainant against the opponent is hereby dismissed.

2. Having regard to the facts and circumstances of the case there is no order as to costs.

Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to pay a sum of Rs.2,00,000/- with interest at 12% from the date of petition till the date of realisation towards damages caused by the OP for non-delivery of vehicle.


The facts given rise to institute the complaint may be summarized as thus:

It is contended that, on 13-9-2007 the complainant got issued a legal notice to Akshaya Motors Service, the Manager of HDFC bank and also to one Syed Sadiq, GMY Motors, NH 206, BH Road, Gubbi who claimed to be a sub-agent under Akshaya Motors Service, alleging their deficiency in service in not releasing a loan in his name from the HDFC bank to purchase a two wheeler vehicle (Bajaj discovery). Consequently no vehicle came to be released. Thus, he claimed compensation as stated above.

Initially, the complainant had filed his complaint only against the 1st OP. However, after the objections of the 1st OP, he got impleaded 2nd and 3rd OP by way of amendment.

Among the OPs who have been notified of the complaint, the OPs No.1 to 2 put in their appearance through their counsel and resisted the same.


The learned counsel appearing for the complainant filed a memo and submitted that the complaint as against the 3rd is not pressed. Hence, the complaint as against him came to be dismissed as not pressed.


The gist of the objections of the 1st OP is as follows:

This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that, this complaint is filed by suppressing the real facts. It is claimed that, the complainant never approached this OP for purchase of the two wheeler vehicle.


It is claimed that, in the legal notice, the complainant made allegations regarding deficiency in service as against the manager of HDFC bank and one Syed Sadiq, G.M.Y. Motors, Gubbi. Thus it is contended that, this OP is no way concerned with the alleged transaction or understanding between them.


In the objections filed by the 2nd OP, it is contended that, the complainant has availed loan from this OP bank for purchase of two wheeler vehicle. As per the terms and conditions contained in the agreement of the bank, the bank has disbursed the loan amount to the dealer.

It is further contended that, this OP is not responsible for the delivery of the vehicle. There is no privity of contract between the bank and the dealer about the delivery of the vehicle. The complainant should have filed a complaint against the dealer and not against this OP and this OP has not committed any deficiency of service. Accordingly, he prays for dismissal of the complaint.


In support of the case, the complainant and the 1st OP have filed their affidavits and the complainant has filed pressed in to service of several documents. When it was set down for further arguments the complainant filed an application under Order 9 Rule 4 of CPC to set-aside the dismissal order passed against the OP No.3. This application came to be opposed by the contesting OPs. Thereafter, the complainant filed a memo seeking permission to withdraw the case with permission to file a fresh one on the same cause of action, claiming that there are many technical defects in the complaint.

Heard.

The learned counsel appearing for the complainant placing reliance on a decision reported in III (1992) CPJ 52 (NC) has urged that when there are serious defects crept in the complaint it is just and proper to withdraw the case reserving the liberty of filing a fresh one. In the said decision it is observed thus:

“Consumer protection Act, 1986 – Section 2 (1) (e) – complaint – permission to withdraw – complaint filed – serious errors crept into – permission to withdraw with liberty to file fresh petition sought – permission granted”.



“Counsel appearing for the complainant-petitioner states that some serious errors and omissions have crept into the original petition that has been filed and hence, he may be permitted to withdraw the said petition, liberty being reserved to him to file a fresh petition in respect of the identical subject matter with all complete and correct averments. We grant this request and dismiss the original petition as withdrawn making it clear that the said dismissal will not preclude the complainant from brining a fresh petition in respect of the identical subject-matter. In passing this order, we are not to be understood as expressing any forward by the complainant in the complaint petition is one that can be legitimately agitated before the consumer forums”.


When the complainant has urged that, there are serious technical defects in the complaint in all fairness it is just and proper to permit him to withdraw the case with a liberty to file a fresh one. Accordingly it is ordered.

Nagarathna Kalagowda Patil,

W/o Sri.K.M.Patil, R/at #739,

4th Main, HAL III Stage,

Bangalore – 560 075.

…. Complainant.

V/s



The Authorized Signatory HDFC Bank,

Retail Asset Division No.548/P

I Floor, Maruthi Mansion, CMH Road,

Indiranagar, Bangalore – 560 035.

…. Opposite Party


-: ORDER:-

The complainant has prayed for the following reliefs against the Opposite Party.

01. To pass an order restraining the Opposite Party its agents and or any person acting on behalf of the Opposite Party from making any attempts to recover the possession of the vehicle bearing Tata Sumo SE Plus bearing registration No.KA-03 C -1988, belonging to the complainant,


02. To direct the Opposite Party to issue a discharge certificate in respect of the Auto Loan No.2065772 and to execute the necessary document (to be filed before the office of the Regional Transport Authority) for the purpose of terminating the Hypothecation agreement Endorsement appearing in the registration Certificate (R.C.Book) and

03. To grant such other relief’s as this Hon’ble Forum may deem fit in the circumstances of the case, in the interest of justice and equity.

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

The complainant availed financial assistance in a sum of Rs.3,80,000/- as Auto Loan from the Opposite Party to purchase a TATA SUMO SE PLUS vehicle. The Opposite Party disbursed Rs.3,79,600/- and the clarification regarding difference of Rs.400/- is not forthcoming till date. As per the arrangement, the complainant was required to pay Rs.12,130/- towards equated monthly installments spread over 36 months commencing from 07/01/2006 to 07/12/2008.

She was regularly paying all the outstanding installments as and when it accrued lest for a few installments which were paid by cash due to some unavoidable circumstances. She has repaid more or less 95% and thus rendering herself due and payable to the Opposite Party a sum of Rs.3,80,000/- in full and final settlement. The Opposite Party without proper application of mind and without taking the complainant into confidence issued notice dated 06/11/2008 making frivolous and baseless allegations without any supporting documents and threatened to recover the possession of the vehicle without affording a reasonable opportunity for the complainant to explain her case which virtually amounts to miscarriage of the principle of natural justice.

The Opposite Party has claimed a sum of Rs.87,699-57 paise payable within seven days from the date of receipt of the said notice. But has failed to reason out its claim over the said sum of Rs.87,699-57 paise and thus the claim is totally unjustified, unreasonable, baseless and put-forth without adhering to the basics of the norms guiding the relationship of the Banker-Customer trusteeship relationship. The Opposite Party reserved the right to take possession and sell the vehicle in favour of the 3rd parties through a private treaty upon the failure to pay the alleged sum of Rs.87,699-57 paise. The proposal demonstrates the high handedness and respect of the Opposite Party for the law in force. The complainant reliably apprehends that the Opposite Party is likely to use muscle power to manage unlawful seizure of the vehicle and sell the same in favour of the third parties as a result of which she would be deprived of her legitimate right and would suffer great hardship and mental agony.

It would have been more appropriate for Opposite Party to peruse the covenants culminating the contract and the right of the aggrieved party to seek remedy and consequential relief against the other arising out of breach committed therein before acting in haste. On receipt of the notice dated 06/11/2008, the complainant issued reply along with the cheque for the out standing amount of Rs.12,130/- through her advocate. The reply has been served on the Opposite Party, but the same has not been countered. Despite the due diligence and prompt action in performing the contract, the acts of the Opposite Party appears to obliterate, detrimental and non-conducive to the interest of the complainant. The Opposite Party has caused mental agony and stress on the complainant. Hence, the complaint.

3. In the version, the contention of the Opposite Party is as under:-

The complaint is misconceived, false and frivolous. The complainant has failed to set out any grounds for grant of any relief. Instead of filing a suit for injunction, the complainant has filed the present complaint so as to save court fee. The nature of the complaint does not fall under the purview of the Consumer Protection Act. The transaction between the parties is governed by the terms of the contract which is reduced into agreement. The Opposite Parties have acted in terms of the agreement and therefore the complainant cannot maintain the complaint.

The complainant has failed to prove the number of installments paid by her. The agreement and statement of account clearly shows that the complainant is due Rs.54,731/-. As per the agreement if the complainant is due any amount, the Opposite Party can repossess the vehicle in question. The complainant cannot take the benefit of her own mistake. No “right in rem” on the vehicle is created in favour of the complainant till the last installment is paid. Hence, the complainant is not the absolute owner of the vehicle. The loan has been sanctioned on condition that in case of default, the Opposite Party has right to repossess the vehicle. The Opposite Party issued notice and recalled the amounts outstanding and the notice is received by the complainant. On these grounds, the Opposite Party has prayed for dismissal of the complaint.

4. In support of the claim the husband and Power of Attorney Holder of the complainant has filed his affidavit. But no Power of Attorney said to have been executed by the complainant is produced. In support of the defence, the Opposite Party has filed affidavit of its Legal Manager in whose favour, the Opposite Party has executed Power of Attorney, a copy of which is produced. Both parties have produced copies of documents. We have heard the arguments on both side.


5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

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

6. Our finding to both points is in the NEGATIVE for the following:-

-:REASONS:-

7. At the outset it may be pointed out that the complaint itself is not filed properly. The complaint is filed in the name of somebody and the same is signed by somebody else without any authority. The complaint is filed by Smt.Nagarathna Kalagowda Patil W/o Sri. K.M.Patil. It appears that the complainant herself has not signed and verified the complaint.

In support of the claim in the complaint one Sri.K.M.Patil who claims to be the husband and Power of Attorney Holder of the complainant has filed his affidavit. On comparing the signature of Sri.K.M.Patil on the affidavit with the signature on the complaint, it is clear that the complaint is signed by Mr.K.M.patil himself and the same is not signed by Smt.Nagarathna Kalagowda Patil – the complainant. The Opposite Party has produced the photo copy of the agreement for auto loan executed by Smt.Nagarathna Kalagowda patil. The signature on this document is all together different from the signature on the complainant and this supports the view that the complaint is not signed by the complainant. Though in the affidavit Sri.K.M.Patil has claimed that he is the Power of Attorney Holder of the complainant, no such Power of Attorney executed by the complainant is produced. Therefore even the affidavit filed in lieu of evidence in support of the claim in the complaint cannot be considered as the affidavit of a Competent Person. Section 12 of the Consumer Protection Act provides “that a complaint may be filed with a District Forum by a Consumer to whom the goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided”.

The complainant Nagarathna claims that she has availed a loan from Opposite Party for the purpose of purchasing a vehicle. Therefore she has availed the service of the Opposite Party for the purpose of purchasing a vehicle as such she is entitled to file the complaint. But having filed the complaint in her name, she was required to sign the complaint and to verity the same. But somebody else, may be her husband has signed the complaint without any authority. It is not disclosed in the complaint that the complaint is filed on behalf of Smt.Nagarathna through her husband as Power of Attorney Holder.

Therefore, when the complaint is not signed by the complainant herself, it cannot be taken as a complaint properly filed. On this ground alone, the complaint is liable to be dismissed. As stated earlier, the husband of the complainant has filed the affidavit in lieu of evidence claiming that he is the Power of Attorney Holder of the complainant. But no document such as Power of Attorney executed by the complainant is produced and therefore the affidavit filed by the husband of the complainant also cannot be taken as evidence in support of the claim. If that is so, there is no evidence supporting the claim of the complainant.

8. As per the agreement for Autoloan, the execution of which is not disputed. The complainant Nagarathna availed loan of Rs.3,80,000/- from the Opposite Party agreeing to re-pay the same with interest at 9.26% Per Annum in equated monthly installments of Rs.12,130/- commencing from 07/01/2006 to 07/12/2008. Along with the version, the Opposite Party has produced the statement pertaining to the loan account of Smt.Nagarathna.

As per this statement as on 28/02/2009, the complainant Nagarathna was due Rs.54,068/- towards loan. The Opposite Party has also produced the list of the cheques cleared and un-cleared. As per this list out of 36 cheques issued only seven cheques were cleared and 29 cheques were un-cleared or dishonored. Under Clause 2.3 of the Ageement, the complainant has agreed to pay additional interest at 2% Per Month on the delayed payments. Clause 2.5 of the agreement provides that any dishonoring of the cheque would make the borrower liable to a flat charge and in case of dishonoring / non-payment on the second presentation a further charge would be levied. Therefore, as per the terms and conditions of the agreement, the Opposite Party is entitled to charge additional interest and cheque bouncing charges whenever the payment is delayed and the cheque is not cleared. When as per the list produced by the Opposite Party as many as 29 cheques were dishonored and payment of a particular cheque was made belatedly the complainant becomes liable to pay additional interest, late payment charges and cheque bouncing charges as per the agreement.

Though the complainant claims that she has cleared 95% of the amount due, the details of the payments made is not provided. It appears the complainant contends that payment of Rs.12,300/- made along with the reply to the legal notice is the final payment to clear the entire dues to the Opposite Party. But according to the Opposite Party, the complainant is still due Rs.54,733/- as per the terms of the agreement. As stated earlier, the copy of the statement of account produced by the Opposite Parties discloses the amount due as Rs.54,068/- as on 28/02/2009. Thus, there is dispute between the parties as to the amount due and payable. In the absence of material, we are unable to uphold the contention of the complainant that by making payment of Rs.12,130/- on 06/11/2008 she has cleared the entire dues of the Opposite Party.

9. Besides the first relief prayed for by the complainant cannot be granted by Consumer Forum. The first prayed in the complaint is to restrain the Opposite Party from making attempts to recover the possession of the vehicle bearing No.KA:03 C1988. A Consumer Forum cannot grant the relief in the nature of an injunction to restrain the Opposite Party from doing certain acts. Such relief is outside the purview of Section 14 of the Consumer Protection Act. Therefore for such reliefs necessarily the complainant has to approach the Competent Civil Court. So for as second relief is concerned, in the absence of material to show that the complainant has cleared entire dues to the Opposite Party, she is not entitled to seek directions to the Opposite Party to issue discharge certificate in respect of the loan. Thus, we find no deficiency in service on the part of the Opposite Party and therefore hold that the complainant is not entitled to the reliefs prayed for in the complaint. In the result, we pass the following:-


-:ORDER:-

1. The complaint is DISMISSED. No order as to costs.

Smt. Surinder Handa W/O Shri H.N. Hand, Secretary, Mohan Meaking Ltd., Resident of K-2, Mohan Meaking Ltd., Solan Brewery, District Solan, H.P.
… Complainant.
Versus
M/S HDFC Chubb General Insruance Company Ltd., 5th Floor, Express Towers, Nariman Point, Mumbai- 400 021.
…Opposite Party
O R D E R:
Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant against the OPs, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that she got herself insured with the OP-Company vide insurance policy bearing No.93626121/00001 Annexure-1, effective from o7.02.2005. It is averred that on 03.04.2005 at 4 P.M. she was involved in a serious accident, as a result of which she was taken to local Ortho Surgeon at Solan, who after giving first aid advised her to go to any other Hospital for specialized treatment.

It is further averred that thereafter, she was taken to Post Graduate Institute of Medical Science & Research Chandigarh on 04.04.2005, where she remained admitted from 25.04.2005 to 17.05.2005 for knee replacement. The complainant further proceed to aver that she incurred an amount of Rs.1,72,376.30 on her treatment and insurance claim to this effect was lodged with the OP-Company. The OP-Company instead of indemnifying her to the extent of Rs.1,72,376.30, paid only Rs.27,000/- vide cheque dated 06.07.2005 which was received by her under protest. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company filed reply to the complaint and raised preliminary objections regarding maintainability, and jurisdiction etc. were raised. On merits, it is contended that whatever amount was payable to the complainant, has been paid, as the total disability was from 03.04.2005 until 17.05.2005 and that the partial disability is from 17.05.2005 till date.

It is further contended that there is no permanent disability as defined in the policy and as such the claim was rightly repudiated. The medical certificate dated 21.01.2006 mentioning percentage of disability of 50% is contrary to the attending physician’s statement dated 27.05.2005, from where it is clear that a false statement has been made to obtain benefit under the policy, which is violative of Section 2(2) of the policy. It is further contended that the claim of the complainant is beyond the terms and not within the purview of the policy. Hence, it is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties led evidence in the shape of affidavits and documents in support of their rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case meticulously.

5. The insurer has sought to exculpate its liability to pay the amount of claim as asserted by the complainant against it, on, the score of section 3, item 28 of the insurance cover, which necessitates, that, when the insurer purportedly suffers permanent total disablement, in consequence to the injuries sustained, the, disablement has to continue for a period of 12 consecutive months and is required to be confirmed as total, continuous and permanent by a physician after an elapse of 12 consecutive months. So, also, the physician, has to be declare that the disability as enjoined upon, her, prevents the insured from engaging in or giving attention to gainful occupation of any or every kind for the remainder of his/her life. While applying the above parameter, as, urged by the OP in seeking to exculpate, its, liability as sought to be fastened upon, it, advertence ought to be made to the date on which the complainant met with an accident.

6. It is not in dispute that the complainant met with an accident on 03.04.2005, hence, in terms of the above referred provisions in the insurance cover, a qualified physician was obliged to declare as well as to confirm on elapse of 12 consecutive months, that, the disability enjoined upon the complainant in consequence to the injuries sustained by her prevented her from engaging in or giving attention to gainful occupation of any or every kind for the remainder of his/her life.

7. A perusal of Annexure-IV, which is prepared on 01.08.2005, hence, within a period of four months from the date of accident, whereas, the, aforesaid provision, in, the insurance cover enjoins, that, the certificate of a physician detailing the ailing having entailed with permanent total disablement, was, required to be furnished, after, the, lapse of 12 consecutive months from the time of the claimant having sustained injuries. Obviously, when Annexure-IV, as, is, sought to be pressed into service by the complainant, inasmuch, as, hers having complied with the rules as detailed above, yet, with the fact of Annexure-IV having been prepared within four months and not after an elapse of 12 consecutive months since her having come to suffer injuries in an accident, resultantly, Annexure-IV does not comply with the mandate of the rules.

8. For infraction of the rules, inasmuch, as, the claimant not having furnished, the, certificate, of, a qualified physician after 12 consecutive months, had, elapsed, since, her having incurred the injuries, confirming, the disability to the extent, enjoined by the rules, the repudiation, of, the claim of the complainant by the insurer, hence, to that extent, for lack of fulfillment of the rules, as, detailed above, is, tenable.

9. However, apart from Annexure-IV, the OP in its reply, in paragraph 4 has contended that complainant had furnished a certificate of a Disability Board, rendered, on 21.01.2006, which mentions, hers, having incurred a disability to the extent of 50%. The findings as recorded by the doctor who issued the disability certificate to the complainant, detailing, the, percentage of disability to the extent of 50%, in, consequence to the injuries sustained by her which findings while having not come to be impeached, hence, the findings recorded in it achieve conclusiveness. The sequel, is, that the percentage of disablement as recorded by the Disability Board, even if, may not be, in, conformity with the earlier findings of the attending physician, the, lack of concurrence between the view expressed by the attending physician and the findings as recorded by the Disability Board, cannot, be, urged to be a ground for disentitling the claimant to her legitimate claim. The expressions made in Annexure-X, are, of experts and are to be countenanced to be binding, unless, expert evidence was adduced by the OP to controvert the expressions elucidated in it.

For the aforesaid reason, and, also for the OP, in, not taking to adduce such potent expert evidence, to, deprive the medical certificate rendered by the Disability Board on 21.01.2006 of, its, credibility, hence, the findings as recorded in it qua the disability entailed upon the claimant ought not to be discarded. Even, if, the disability certificates, has, been issued at some time prior to the elapse of 12 consecutive months since the date of the accident, yet, when the disability of insured is, voiced and, detailed, in it, to be permanent as well as severe, as such, when, it, has not been shown by the adduction of expert evidence by the OP that, it, would have come to reduce, after lapse of some time or would on its reduction would not prevent her to engage herself or give attention to gainful occupation for, the, remainder of her life. Therefore, it is to be held, that, disability, even if, observed by a Disability Board in, its, finding recorded, on, a date lesser than 12 months after the accident had taken place, is, of a permanent as well as of a severe nature, hence, its, findings ought not to have been discarded, as, has been done by the insurer, in, declining to the complainant the benefits as envisaged in insurance cover. In the OP having declined to the complainant, the benefits of the insurance cover, on, a false and flimsy pretext has caused deficiency in service.

10. Consequently, the complaint is allowed. The OP-Insurance Company is directed to assess the claim of the complainant in accordance with the rules, apposite to it, without the insurer putting forth the embargo of rules as enjoined in section 3, item 28 of the insurance cover. The OP-Company shall assess the claim within a period of forty five days after the date of receipt of copy of this order and the admissible amount shall be defrayed to the complainant by the OP-Company within fifteen days thereafter. With these observations, the complaint stands disposed of. No order as to the cost.

B.Kuppusamy,

S/O.I.Benjamen,

Plot No.3/65 Nakeerar Salai,

Mogappair East,

Chennai – 37 Complainant



Vs.



Manager,

HDFC Bank,

(Centurian Bank)

86, Raja Annamalai Building,

72, Marshals Road,

Egmore,

Chennai – 8.



Manager,

HDFC Bank Ltd

110 Nelson Manickam Road,

Aminjikarai,

Chennai – 29 Opposite Parties






O R D E R


1. The case of the complainant is briefly as follows:

The complainant had availed finance of Rs.39,900/- for purchase of TVS Victor GL two wheeler payable at Rs, 1,363/- as EMI from the Ist opposite party. He was regular in payment of EMI and there were sufficient funds in his account. The Ist opposite party’s men have broken his locked vehicle and took unauthorized possession. Thereafter the vehicle was returned with new locks on 21.01.2009. The 2nd opposite party’s men had again taken possession of the complainant’s motorcycle. The vehicle’s dashboard contained original copy of document of property of value of Rs.27,000/- and cash of Rs.20,000/-. The complainant gave a police complaint on 21.01.2009.


The 2nd opposite party had written a letter to the complainant demanding payment of Rs.27,149/- but the loan outstanding was only Rs.5,452/-. The vehicle was seized without his knowledge amounts to deficiency in service. Hence the complainant has filed this complaint for return of the seized vehicle and also return of the original document , compensation of Rs.1,00,000/- for deficiency in service and another Rs.1,00,000/- for mental agony and Rs.5,000/- as cost of the complaint.

2. The opposite parties though received the notice did not appear before this forum and hence they were set ex parte

3. Proof Affidavit was filed by the complainant. Exs.A1 to A5 were marked on the side of the complainant.

4. The points that arose for considerations are:

1. Whether there is any deficiency in service on the part of the opposite party?

2. To what relief the complainant is entitled to?

5. Point No:1

The complainant had availed loan of Rs. 39,900/- for purchase of TVS Victor GL two wheeler from the Ist opposite party on 8.3.2006. The loan is repayable at Rs.1,363/- per month. The complainant was regular in payment of monthly instalments on 21.01.2009. The 2nd opposite party’s men had taken possession of complainant motorcycle, the dashboard contained original copy of document of property of value Rs.27,000/- and cash of Rs.20,000/-. The complainant gave a police complaint on 21.01.2009. But the 2nd opposite party by letter dated 21.1.2009 demanding payment of Rs.27,149/- from the complainant within 7 days as otherwise sale process will commence discretion of the bank.


The 2nd opposite party had not informed the dues earlier to unable the complainant to pay the same. The 2nd opposite party had no right to seize the vehicle without informing the complainant about the seize. Ex.A1 is the statement given by the Ist opposite party regarding receipt of the instalment amounts paid by the complainant. Ex.A2 is payment receipt by the complainant. Ex.A4 is the letter of the opposite party demanding payment of Rs. 27,149/- from the complainant.


In that letter that the opposite party have informed the complainant that they have recovered possession of the vehicle because of non payment of monthly instalment dues by the complainant. The opposite party neither appeared before this Forum nor filed written version. In the absence of any contra evidence by opposite party the evidence of complaint is accepted. The contention of the complainant is that the 2nd opposite party has no right to seize the vehicle for non payment without prior intimation. This act of the opposite parties amounts to deficiency in service. The point is answered accordingly.



6. Point No:2



In the result, the complaint is allowed. The opposite parties are jointly and severally directed to return seized vehicle along with the documents and cash of Rs.20,000/- if found in the dashboard box of the vehicle. The opposite parties are also directed to pay Rs.50,000/- as compensation for mental agony and pay Rs. 5,000/- as cost of the complaint to the complainant. The amount shall be payable within 6 weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

Sri Aloke Ranjan Roy and

2) Smt. Jayanti Roy of

39C, Bose Pukur Road,

Kolkata-700042. ---------- Complainant



---Verses---



1) The Branch Manager, HDFC Bank, Golpark,

132, A.M.N. Shah Sarani, Kolkata-700029.



2) The Manager, Debt Management and

Legal Support Credit Cards,

HDFC Bank Card Division,

96, Anna Salari, Chennai-600002. ---------- Opposite Party






Order No. 1 6 Dated 1 4 / 0 9 / 2 0 0 9 .



Complainant, Alok Ranjan Roy and his wife Joyanti Roy by filing a petition of complaint u/s 12 of the C.P. act, 1986 on 9.10.07 have prayed for refund of Rs.5153.26 along with interest @ 18% p.a. from 31.7.07 till full recovery and litigation cost and other reliefs as the complainants are entitled to.

Fact of the case in short is that they opened a savings bank account jointly with ATM facilities being account no.0221000214285 at HDFC Bank, Golpark Branch, Kolkata-79 and after that complainant no.1 also opened a credit card account in his name with the same branch being credit card no.4346772001347870 on 18.6.05 the concerned authority of HDFC Bank Cards Division at Annasalai, Chennai-600602 sent two credit cards being no.5176351003079112 in the name of complainant no.1, but he never used the aforesaid credit cards for a single moment, annex-A. Surprisingly, on 30.3.07 o.p. no.2 the Manager, The Debt Management and Legal Support Credit Cards, HDFC Bank Credit Cards Division, Chennai-600002 sent a notice to the complainant no.1 asking him to pay a sum of Rs.4677.72 claiming his outstanding balance of the captioned credit cards accounts numbers as on 30.3.07 under the quotation of “Hold On Funds’ and it was also stated to pay the said amount within seven days from the date of receipt of the notice otherwise the amount shall be deducted from the HDFC savings bank account of the complainant, annex-B.

On 11.4.07 complainant sent legal notices to the o.ps. through regd. post and the notices were duly accepted by the o.ps., annex-C & D.

On receipt of such notices of the complainant, the o.ps. sent statement of accounts from 31.5.07 to 30.8.07 wherein it was shown that on 31.7.07 Rs.5153.26 was withdrawn by the o.ps. from the joint savings bank account (S.B. A/C no.0221000214285) under the statement of “Fund TRF-DN-4346772001347870 with a warning to maintain minimum average quarterly balance in the savings account of at least Rs.5000/-, otherwise Rs.750/- will be charged per quarter from the savings bank account balance, annex-E. No written consent whatsoever was given by the complainants to the o.ps. to deduct any alleged claimed outstanding balance of credit card from the joint savings bank account of the complainants.


Complainants accordingly, several times met with the branch office to settle disputes, but in vain. And ultimately the complainants were compelled to close their joint savings bank account no.0221000214285 and actually on 5.10.07 complainants closed the joint savings bank account and had withdrawn the entire balance amount and at the same date on 5.10.07 complainant no.1 terminated the credit card account no.4346772001347870 and submitted the destroyed cards before the concerned branch officer, annex-F & H. In view of this position, the complainants were compelled to file this case on service of lawyer’s notice with the aforesaid prayers.

The o.ps. on 3.6.08 by filing a written statement have contested this case, denying interalia that the case is not maintainable in its present form and law. On 10.6.05 on the application of the complainants, the o.ps. issued a silver credit card in the name of complainant no.1 and an add on credit card in favour of his wife, complainant no.2 and the said credit cards were valid from June 2005 to June 2008. Along with the said credit cards the o.ps. made over two copies of the card-member agreement of the o.ps. containing the terms and conditions of issuance and use of the said credit cards and the terms and conditions are binding upon the complainants, annex-B of the o.ps. And the terms and conditions are laid down in annex-C and the statement made there under for the said two credit cards are marked (collectively), annex-D. According to the terms and conditions as on 30.3.07 a sum of Rs.4667.72 stood due to and payable by the complainants to the o.ps. on the basis of life time free value plus credit cards bearing no.4346772001347870.


Since no payment was made the said credit cards were inactivated by the o.ps. from September 2006 and the o.ps. by notice dt.30.3.07 were constrained to note “suspended status of the credit cards and called upon the complainants to remit the aforesaid dues within seven days from the date of the receipt of the sum, failing which the o.ps. would constrain to debit the aforesaid sum and all sums falling due thereafter from the said account of the complainant no.1”, annex-E of the o.p. But the complainant instead of making payment of legal dues of the o.ps. sent a lawyer’s notice on 11.4.07 and refused and neglected to make payment on account of the said credit cards and as a result the o.ps. were constrained to debit Rs.5153.26 from the account of the complainant no.1 and in view of this position they have prayed for dismissal of the case.

Decision with reasons :

Admittedly the complainants opened the above referred savings bank account jointly with ATM facilities at HDFC Bank, Golpark, Kolkata-29. It also appears from annex-A that the complainants never used the credit card in question. On 30.3.07 o.p. no.1 sent a notice to the complainant no.1 asking him to pay Rs.4677.72 claiming as outstanding balance of the credit card in question under the quotation of “Hold on Funds” within seven days, annex-B. We have also perused the legal notices sent from the side of he complainants to the o.ps., annex-C.


The notices were duly received by the o.ps., annex-D. We have also perused the statement of account for the period from 31.7.07 to 30.8.07 showing that on 31.7.07 Rs.5153.26 was withdrawn by the o.ps. from the joint savings account bearing no.0221000214285 with a warning to maintain minimum average quarterly balance in the savings account of at least Rs.5000/-, otherwise Rs.750/- will be charged per quarter from the savings account balance. Evidently therefore, said amount of Rs.5153.26 was withdrawn from the account in question on 31.7.07 by the o.p. The complainant on several dates viz. on 5.10.07 vide annex-F & G had persuaded the matter in writing with the o.ps. asking termination of his HDFC Bank Internal Credit Card bearing numbers as mentioned above.

It is the specific case of the o.ps. as contained in their w/v that what they did with regard to claiming and deducting Rs.5153.26 on 31.7.07 is within the ambit of their jurisdiction as contained in the agreement. With respect to such withdrawal/deduction of money let us see the agreement itself under the heading Auto Debit, annex-D of the o.p. “if the customer has a current account or a savings account at any of our branches in India, the bank may at its sole discretion arrange to have any one of these accounts debited automatically every month on the customer’s written request”. This being the provision, unfettered liberty is not given to the bank to debit arbitrarily from the account of any customer and more particularly in absence of any written request/consent of the customer.


In the instant case there is no such written request either offered or given from the end of the customer in question viz. here the complainants. This being the position, it is surely and purely extreme arbitrary act on the part of the o.ps. which definitely warrants for he interference by court of law of competent jurisdiction viz. here the Consumer Forum. This being the position, we are of the candid opinion that the claim of the complainants cannot be defeated by the arbitrary act of the o.ps. which is nothing but a banking institution where the customers repose their confidence for fair and clear financial transaction. So the o.ps. are jointly of unfair trade practice.

Hence,

Ordered,

That the o.ps. are directed to pay Rs.5153.26 (Rupees five thousand one hundred fifty three and paise twenty six) only alongwith interest @ 18% p.a. from 31.7.07 till full realization and compensation of Rs.2000/- (Rupees two thousand) only and litigation cost of Rs.1000/- (Rupees one thousand) only positively within thirty days from the date of passing the judgment, failing which the complainant will be at liberty to execute the same by due process of law. Fees paid are correct.

Supply copy of this order to the parties on payment of prescribed fees.

Surjit Kaur w/o Harjinder Singh s/o Shiv Dev Singh r/o V.Sahlon, Tehsil and Distt. Nawanshahr. ….Complainant.

Versus

HDFC Bank Nawanshahr through its Branch Manager. ….Respondents



Surjeet Kaur (hereinafter called as complainant), has filed this complaint against HDFC Bank, Nawanshahr through its Branch Manager (hereinafter called as OP) for issuance of a direction to the Op to encash the FDR bearing No. 112103000038270 dated 08/08/2008 and pay interest on the maturity value of the FDR to the tune of Rs.20,000/- and litigation cost of Rs.10,000/-.

2. The brief admitted facts of this complaint are that the complainant is the holder of FDR referring above which was to mature on 08/08/2008, issued by Centurion Bank of Punjab which now stands merged with the OP bank. It is claimed that another FDR had been purchased by the complainant in the sum of Rs.53,000/- from the Centurion Bank of Punjab which was to mature in the month of January or February 2009. The said FDR was got encashed by the complainant prematurely on 16/07/2008. The complainant being not in possession of the said FDR, is unable to give specific details of the same.


It is added that on maturity of FDR bearing No. 112103000038270, the complainant had approached the Op bank for its encashment but the Bank staff kept on dithering over the matter. Later on the staff of the Op bank put up an excuse that this FDR had been encashed on 16/07/2008. Efforts on the part of the complainant to convince the staff of the Op bank that this FDR was never encashed did not bear any fruit. The Op bank is thus stated to be deficient in service towards the complainant, in addition to causing mental as well as physical harassment to her. Hence this complaint.

3. In the written version filed by the Ops, it was not disputed that the complainant and her husband the joint FDR from the Centurion Bank of Punjab for Rs.53,704/- dated 07/08/2008 which carried the maturity value of Rs.59,151/- and the maturity date was 08/08/2008. It is contended that the original FDR carries the title as “Fixed Deposit” and its advice carries the title of “Confirmation of Fixed Deposit”. The FDR which is in possession of the complainant was stated to be confirmation receipt only. It was contended that the FDR bearing No. 112103000038270 was got encashed by the complainant on 16/07/2008 and the amount was credited to there saving account.


The original FDR handed over to the bank for encashment was alleged to have been misplaced at the Branch during the binding/handling of the vouchers. It was specifically denied that any other FDR of the complainant exist in the Bank record as claimed by the complainant. Even the complainant was stated to have failed to provide any other FDR or its confirmation of the fixed deposit. On the insistence of the complainant, the OP bank claimed to have searched the bank record no after FDR was found to exist. It was denied that the Op bank was deficient in service towards the complainant. A prayer for dismissal of the complaint was accordingly made.

4. Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5. We have considered the written as well as oral submissions advanced by the learned counsel for the parties and carefully scrutinized the evidence on record.

6. No doubt the complainant has alleged that she possessed an other FDR which was to mature in the month of January or February 2009, in addition to the FDR No. referred above, yet from the allegations in the complaint itself it is clear that the complainant was not aware of its number of date of its issuance, as well as date of maturity. In such circumstances, it will be unjust to draw an inference that any such FDR was ever obtained by the complainant or her husband from Centurion Bank of Punjab or it was presented to the Op bank for its encashment, prematurely. The complainant could have produced here saving bank account statement from where the amount must have been withdrawn by her for the purchase of any FDR dated 17/08/2007 but she did not prefer to do so.


On the contrary the Op have categorically stated that the FDR for 07/08/2007 for Rs.53,704/- bearing no. 11210300038270 which was to mature on 08/08/2007 with maturity value of Rs.59,151/- had been duly encashed by the complainant on 16/07/2008 and the maturity value of Rs.59,151/- duly credited to her saving account copy of which is Ex.R-3. Ex R-2 is account statement of the complainant from 01/07/2008 to 17/07/2009. Perusal of Ex. CW1/B lends credence to the contention of the Op as it is infect is a confirmation of fixed deposit and not the original FDR which was submitted to the bank but later on misplaced by the bank during binding/handling of the vouchers.


Mere possession of original deposit confirmation receipt by the complainant can not lead to the conclusion that this FDR was not encashed or the complainant had any after FDR which was prematurely encashed on 16/07/2008. It is also pertinent to mention that FDR dated 07/08/2007 confirmation of deposit receipt of which is in possession of the complainant was also to mature on 08/08/2008 where in it was encashed prematurely on 16/07/2007. No motive can be attributed to the Op bank for denying the benefits of any other FDR, if at all the complainant had actually obtained the same from Centurion Bank of Punjab.

7. In the light of the aforesaid facts, we are constrained to hold that no deficiency in service on the part of the Op bank towards the complainant is established. The complaint is therefore dismissed.

8. Leaving the parties to bear their own costs.

9. The copies of this order be sent to the parties as per rules.

10. File be consigned to the record room.

Harpreet Singh son of Sh. Jagjit Singh, resident of No.14697, Street No.3, Kalsi Nagar, Dholewal, Ludhiana.

(Complainant)

Vs.



1. H.D.F. C Bank, Kalsi Nagar, Ludhiana through its M.D/Chairman.



2. The Branch Manager, H.D.F.C. Bank, Kalsi Nagar, Ludhiana.

(Opposite parties)









O R D E R



1. Complainant under Prime Minister Rojgar Yogna Scheme, after fulfilling all the formalities and completion of documentation of small scale industries, approached the OP-Bank for loan. They sought project report before approval of the loan. Spent Rs. 3000/- to obtain project report from the Chartered Accountant and submitted the same to the bank, who issued sanctioned letter dated 20.3.2008 subject to sanctioning of P.M.R.Y. loan cases for the year 2007-08. Thereafter, repeatedly requested OP-Bank to relase the loan amount, but they evaded on one pretext or the other. By not releasing the loan after sanctioning, is claimed amount to deficiency in service on their part. Resultantly, also served legal notice dated 9.8.08 but without any effect. Hence, this complaint for direction to the opposite party to disburse loan of Rs.2,00,000/- and to pay him Rs. 85,000/- compensation for mental pain and agony along with Rs.15,000/- litigation costs.

2. Opposite parties no.1 & 2 in joint reply claimed that allegations of the complainant are baseless, frivolous and there is no deficiency in service on their part. However, they conceded that complainant applied for loan of Rs.2,00,000/-under Prime Minister Rojgar Yogna Scheme. But denied that he had fulfilled all the formalities or they demanded project report from him. Request of the complainant for loan was declined for non completion of formalities and project report submitted by the complainant was of trading of steel and aluminum scrap which is an industrial activity. Further claimed that sanction and disbursement of the loan is their discretion and they can refuse to disburse the loan without assigning any reason.

3. In order to prove their respective versions, parties led their evidence by way of affidavits and documents.

4. We have heard the arguments addressed by ld. counsel for the parties, gone through file, scanned the documents and other material on record.

5. It is admitted that the complainant under Prime Minister Rojgar Yogna Scheme applied for loan of Rs.2,00,000/- from the Op-Bank. Bank, consequently issued sanctioned order (Ex. CW3) in favour of the complainant, sanctioning loan of Rs.2,00,000/- in his favour subject to completion of bank formalities. Directed G.M. Industrial Centre, Ludhiana to impart necessary training to the complainant, so that loan amount be disbursed. After issuance of the letter Ex.CW3 by the opposite party, complainant underwent industrial training qua which obtained certificate Ex.CW2 from the General manager, Industries General, Ludhiana

6. It is apparent that while sanctioning the loan, pre condition made by the opposite party was to obtain necessary training before enabling the bank to release and disburse sanctioned loan in his favour. This condition was complied by the complainant, when obtained certificate Ex.CW2 after undergoing training programme during the months of March- April,2008 from the Institute for Auto Parts Technology, Ludhiana. Earlier the complainant had complied with requirements of the opposite submitting project repot to them and complainant claimed that had spent Rs.3000/- for obtaining such report. The opposite party in reply has stated that project report submitted by the complainant was of trading of steel and aluminum scrap which was industrial project. It means project report as asked by the opposite party from the complainant, was made available to them.

7. When after meeting requirements of the opposite party sanctioned loan was not disbursed, complainant filed application Ex. CW4 and CW5 to the Hon’ble Prime Minister of India, New Delhi and thereafter issued legal notice Ex.CW1, posted through postal receipt Ex.CW6 to the opposite party but till filing of the complaint loan so sanctioned was never released in his favour.

8. No doubt, it may be discretion of the OP-Bank to release or not release the loan unless and until all their requirements are complied by the loanee. In the instant case, whatever were conditions for sanctioning of the loan, stood fulfilled by the complainant. What other formalities he failed to complete, opposite party has not been able to specify the same. Only for the sake of objections, they have taken such plea without any substance. It appears that officials of the opposite party by their acts and deeds not only frustrated aims, goals and designs of the complainant but also of the Govt. of India to help the Youth of the nation to get self employment by starting work at small scale with the help of bank loans.

9. Hence, we are of the view that opposite party-Bank certainly in this respect would be guilty of not rendering proper services to its own consumer. As they after applying for loan by the complainant, made him to shift his stand by undergoing training and procure project report by spending Rs.3000/- thereon. Consequently, the loan should have been disbursed, but not done so and this act on the part of opposite party-Bank certainly would be deficiency in service. Such deficiency has gone against intention of the Central Govt. to help unemployed Youth of the Nation.

10. Sequel to the discussions, we allow this complaint and as a result direct opposite party to disburse, on execution of requisite documents as required by the bank, loan of Rs.2,00,000/- to the complainant under prevailing loan policy of the bank and for causing sufferance, agony to the complainant pay him compensation of Rs.10,000/- (Rs. Ten Thousands only) and litigation cost of Rs.2000/-(Rs. Two Thousands only) within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

M. Iyappan,

S/O. A.Mariappan,

No.640, Grakalakshmi Apartment,

B-11, Tondiarpet,

Chennai – 600 081. : Complainant



Vs.



1. Balaji Automative,

No.570, T.H.Road,

Old Washermenpet,

(Opp.Vigai Mahal)

Chennai – 600 021.



2. The Manager,

HDFC Bank Ltd,

Two Wheeler Loan Department,

Retial Asset Division 3rd Floor,

No.56, G.N.Chetty Road,

T.Nagar,

Chennai – 600 017 : Opposite Parties






Opposite Parties


O R D E R





1. The case of the complainant is briefly as follows:

The complainant booked Honda Activa two wheeler vehicle with the Ist opposite party and paid Rs.1,000/- as advance on 2.8.2008. The Ist opposite party had also agreed to arrange the vehicle loan to the 2nd opposite party for Rs. 34,300/- repayable in 24 instalments at Rs. 1,756/- per month. The complainant had also given 5 blank undated cheques to the Ist opposite party drawn on Syndicate Bank, Tondiarpet Branch, Chennai. The vehicle was not delivered by the Ist opposite party as promised on 6.8.2008.


On 27.8.2008 the complainant contacted the Ist opposite party and requested to deliver the vehicle. He was informed that an extra amount of Rs.1,000/- has to be paid since the vehicle rate has been increased. Having agreed to deliver the vehicle for Rs.44,465/- on 2.8.2008 by receiving a token advance of Rs.1,000/- he cannot increase the price of the vehicles. The 2nd opposite party has sanctioned a loan of Rs.34,300/- and the complainant was informed that the loan amount was paid to the Ist opposite party by the 2nd opposite party directly. Even though the vehicle was not delivered the complainant was asked by the 2nd opposite party to pay the instalment amount.


Even after receipt of the money the 2nd opposite party did not deliver the vehicle. This act of the Ist opposite party amounts to deficiency in service, The 2nd opposite party even without verifying whether the vehicle was delivered or not paid the loan amount to the Ist opposite party and therefore he had also committed deficiency in service. Hence the complainant has filed this complaint for direction to the opposite party to deliver the vehicle for the price which was originally agreed to Rs.44,465/- after deducting the initial amount of Rs.1,000/-, Pay Rs. 2,00,000/- as compensation for mental agony, Rs.1,000/- as loss and Rs.25,000/- towards litigation expenses,

2. The opposite parties even after receipt of notice, did not appear before this Forum. Hence the opposite parties were set ex-parte.

3. 3.Proof Affidavit was filed by the complainant Exs.A1 to Exs.A6 were marked on the side of the complainant.

4. The points that arise for considerations are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. To what relief the complainant is entitled to?

5. Point No:1:

The grievance of the complainant is that he booked a Honda Activa two wheeler vehicle with the Ist opposite party for Rs.44,655/- and also arranged loan from the 2nd opposite party. When he demanded delivery of the vehicle, the Ist opposite party insisted the payment of extra amount, even after receipt of the loan amount from the 2nd opposite party. He issued a legal notice Ex.A5 demanding delivery of the vehicle and compensation. It was received by both the parties but no reply,

The opposite parties neither appeared nor filed version before this Forum and in the absence of any contra evidence on the side of the opposite parties, the case of the complainant is to be accepted. On perusal of the documents, we are of the view that there is deficiency in service on the part of the opposite parties.





6.Point No:2

In the result, the complaint is allowed. The opposite party is directed to deliver the Honda Activa Vehicle to the complainant for Rs.44,465/- for the original price agreed after deducting the initial amount of Rs.1,000/-. The Ist opposite party is also directed to pay a sum of Rs.10,000/- as compensation for mental agony and pay Rs.3,000/- as costs of the complaint to the complainant. The amounts shall be payable within 6 weeks from the date of receipt of copy of the order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

Mr. K.Santhoshkumar

8-3, Brindhavan colony II st.

Srinivasa Nagar, Uppilipalayam,

Coimbatore-15 --- Complainant

Vs.

The Manager,HDFC Bank,

590,Sri Sai Towers, D.B.road, Coimbatore --- Opposite Party






The case of the complainant

1. The complainant availed a car loan from the opposite party during Feb.2008 vide loan No.12788332, remitting monthly instalments through ECS of the opposite party bank. After some time complainant requested the opposite party to change his ECS account from HSBC bank to Axis bank and recovered the EMI from his account with Axis bank. But the opposite party failed to comply with the request of the complainant, allowing the complainant’s cheque to dishonour resulting in mental agony and sufferings to the complainant. Hence this complaint.



2. Complaint, documents perused. Complainant's counsel argument heard.

This complaint is not maintainable before this Forum for the following reasons:-

1. There is no documentary proof to show that Axis bank has agreed to give ECS facilities to the complainant

2. There is no documentary proof to show that the complainant informed the opposite party’s customer care executive about this change and made a request with him to change his ECS account from HSBC to Axis Bank.



3. Hence this complaint is not maintainable before this Forum.

Accordingly the complaint is rejected as not maintainable.

Pronounced by us in Open Forum on this the 1st day of October, 2009.

Sri Aloke Ranjan Roy and

2) Smt. Jayanti Roy of

39C, Bose Pukur Road,

Kolkata-700042. ---------- Complainant



---Verses---



1) The Branch Manager, HDFC Bank, Golpark,

132, A.M.N. Shah Sarani, Kolkata-700029.



2) The Manager, Debt Management and

Legal Support Credit Cards,

HDFC Bank Card Division,

96, Anna Salari, Chennai-600002. ---------- Opposite Party












Complainant, Alok Ranjan Roy and his wife Joyanti Roy by filing a petition of complaint u/s 12 of the C.P. act, 1986 on 9.10.07 have prayed for refund of Rs.5153.26 along with interest @ 18% p.a. from 31.7.07 till full recovery and litigation cost and other reliefs as the complainants are entitled to.

Fact of the case in short is that they opened a savings bank account jointly with ATM facilities being account no.0221000214285 at HDFC Bank, Golpark Branch, Kolkata-79 and after that complainant no.1 also opened a credit card account in his name with the same branch being credit card no.4346772001347870 on 18.6.05 the concerned authority of HDFC Bank Cards Division at Annasalai, Chennai-600602 sent two credit cards being no.5176351003079112 in the name of complainant no.1, but he never used the aforesaid credit cards for a single moment, annex-A.


Surprisingly, on 30.3.07 o.p. no.2 the Manager, The Debt Management and Legal Support Credit Cards, HDFC Bank Credit Cards Division, Chennai-600002 sent a notice to the complainant no.1 asking him to pay a sum of Rs.4677.72 claiming his outstanding balance of the captioned credit cards accounts numbers as on 30.3.07 under the quotation of “Hold On Funds’ and it was also stated to pay the said amount within seven days from the date of receipt of the notice otherwise the amount shall be deducted from the HDFC savings bank account of the complainant, annex-B.

On 11.4.07 complainant sent legal notices to the o.ps. through regd. post and the notices were duly accepted by the o.ps., annex-C & D.

On receipt of such notices of the complainant, the o.ps. sent statement of accounts from 31.5.07 to 30.8.07 wherein it was shown that on 31.7.07 Rs.5153.26 was withdrawn by the o.ps. from the joint savings bank account (S.B. A/C no.0221000214285) under the statement of “Fund TRF-DN-4346772001347870 with a warning to maintain minimum average quarterly balance in the savings account of at least Rs.5000/-, otherwise Rs.750/- will be charged per quarter from the savings bank account balance, annex-E. No written consent whatsoever was given by the complainants to the o.ps. to deduct any alleged claimed outstanding balance of credit card from the joint savings bank account of the complainants.


Complainants accordingly, several times met with the branch office to settle disputes, but in vain. And ultimately the complainants were compelled to close their joint savings bank account no.0221000214285 and actually on 5.10.07 complainants closed the joint savings bank account and had withdrawn the entire balance amount and at the same date on 5.10.07 complainant no.1 terminated the credit card account no.4346772001347870 and submitted the destroyed cards before the concerned branch officer, annex-F & H. In view of this position, the complainants were compelled to file this case on service of lawyer’s notice with the aforesaid prayers.

The o.ps. on 3.6.08 by filing a written statement have contested this case, denying interalia that the case is not maintainable in its present form and law. On 10.6.05 on the application of the complainants, the o.ps. issued a silver credit card in the name of complainant no.1 and an add on credit card in favour of his wife, complainant no.2 and the said credit cards were valid from June 2005 to June 2008.


Along with the said credit cards the o.ps. made over two copies of the card-member agreement of the o.ps. containing the terms and conditions of issuance and use of the said credit cards and the terms and conditions are binding upon the complainants, annex-B of the o.ps. And the terms and conditions are laid down in annex-C and the statement made there under for the said two credit cards are marked (collectively), annex-D. According to the terms and conditions as on 30.3.07 a sum of Rs.4667.72 stood due to and payable by the complainants to the o.ps. on the basis of life time free value plus credit cards bearing no.4346772001347870.


Since no payment was made the said credit cards were inactivated by the o.ps. from September 2006 and the o.ps. by notice dt.30.3.07 were constrained to note “suspended status of the credit cards and called upon the complainants to remit the aforesaid dues within seven days from the date of the receipt of the sum, failing which the o.ps. would constrain to debit the aforesaid sum and all sums falling due thereafter from the said account of the complainant no.1”, annex-E of the o.p. But the complainant instead of making payment of legal dues of the o.ps. sent a lawyer’s notice on 11.4.07 and refused and neglected to make payment on account of the said credit cards and as a result the o.ps. were constrained to debit Rs.5153.26 from the account of the complainant no.1 and in view of this position they have prayed for dismissal of the case.

Decision with reasons :

Admittedly the complainants opened the above referred savings bank account jointly with ATM facilities at HDFC Bank, Golpark, Kolkata-29. It also appears from annex-A that the complainants never used the credit card in question. On 30.3.07 o.p. no.1 sent a notice to the complainant no.1 asking him to pay Rs.4677.72 claiming as outstanding balance of the credit card in question under the quotation of “Hold on Funds” within seven days, annex-B. We have also perused the legal notices sent from the side of he complainants to the o.ps., annex-C.


The notices were duly received by the o.ps., annex-D. We have also perused the statement of account for the period from 31.7.07 to 30.8.07 showing that on 31.7.07 Rs.5153.26 was withdrawn by the o.ps. from the joint savings account bearing no.0221000214285 with a warning to maintain minimum average quarterly balance in the savings account of at least Rs.5000/-, otherwise Rs.750/- will be charged per quarter from the savings account balance. Evidently therefore, said amount of Rs.5153.26 was withdrawn from the account in question on 31.7.07 by the o.p. The complainant on several dates viz. on 5.10.07 vide annex-F & G had persuaded the matter in writing with the o.ps. asking termination of his HDFC Bank Internal Credit Card bearing numbers as mentioned above.

It is the specific case of the o.ps. as contained in their w/v that what they did with regard to claiming and deducting Rs.5153.26 on 31.7.07 is within the ambit of their jurisdiction as contained in the agreement. With respect to such withdrawal/deduction of money let us see the agreement itself under the heading Auto Debit, annex-D of the o.p. “if the customer has a current account or a savings account at any of our branches in India, the bank may at its sole discretion arrange to have any one of these accounts debited automatically every month on the customer’s written request”. This being the provision, unfettered liberty is not given to the bank to debit arbitrarily from the account of any customer and more particularly in absence of any written request/consent of the customer. In the instant case there is no such written request either offered or given from the end of the customer in question viz. here the complainants.


This being the position, it is surely and purely extreme arbitrary act on the part of the o.ps. which definitely warrants for he interference by court of law of competent jurisdiction viz. here the Consumer Forum. This being the position, we are of the candid opinion that the claim of the complainants cannot be defeated by the arbitrary act of the o.ps. which is nothing but a banking institution where the customers repose their confidence for fair and clear financial transaction. So the o.ps. are jointly of unfair trade practice.

Hence,

Ordered,

That the o.ps. are directed to pay Rs.5153.26 (Rupees five thousand one hundred fifty three and paise twenty six) only alongwith interest @ 18% p.a. from 31.7.07 till full realization and compensation of Rs.2000/- (Rupees two thousand) only and litigation cost of Rs.1000/- (Rupees one thousand) only positively within thirty days from the date of passing the judgment, failing which the complainant will be at liberty to execute the same by due process of law. Fees paid are correct.

Supply copy of this order to the parties on payment of prescribed fees.

1.

Poonam Sethi, age 46 years, widow of Vijay Kumar Arora,
2.

Love Sethi, age 24 years (son )
3.

Kush Sethi, age 23 years (son)
4.

Ritika Sethi, age 19 years (daughter)
5.

Megha Sethi, age 16 years (minor daughter ) of Sh. Vijay Kumar Arora, all residents of H.No. 194, Ward No. 4, Moonak Gali, Urmur, Distt. Hoshiarpur (Complainant No. 5 through her mother complainant No. 1 as her natural guardian and next friend).


........ Complainants

versus


1.

H.D.F.C. Standard Life Insurance Amminet Mall, Above Axis Bank, Court Road, Hoshiarpur, through its Branch Manager.
2.

Housing Development Finance Corporation Ltd., (HDFC Ltd.), 136, Near Jawahar Nagar, Cool Road, Jalandhar, through its Branch Manager.
3.

D.J.M., HDFC Ltd., SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.


............ Opposite Parties




1.

The complainants have filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that deceased Vijay Kumar Arora, the husband of complainant No. 1 and father of complainants No. 2 to 5, applied for Housing Loan from HDFC Ltd., and a loan of Rs. 20 lacs was sanctioned vide approval letter dated 26.2.2007.
2.

It is further the case of the complainants that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant No. 1 for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) on account of insurance premium was to be paid by opposite parties No. 2 and 3 to opposite party No. 1. That the total loan amount was Rs. 20,81,631/-. That the amount of Rs. 81,631/-, one time instalment was also debited in the account of deceased Vijay Kumar Arora and complainant No. 1.
3.

It is further the case of the complainants that Sh. Vijay Kumar Arora expired on 2.6.2008. The complainants are the Legal Heirs of deceased Vijay Kumar Arora. It is further the case of the complainants that they informed OP No. 2 about the death of Vijay Kumar Arora with the request to adjust the insurance money in the loan account after claiming it from OP No. 1, but of no consequences.
4.

It is the allegation of the complainants that a false story of collection of cheque by Vijay Kumar Arora has been cooked up vide letter dated 20.9.2008. The OP No. 1 is a sister concern of OP No. 2.
5.

It is further the allegation of the complainants that they have come to know from reliable sources that deceased Vijay Kumar Arora and Poonam Sethi, complainant No. 1 were not got insured by OP No. 1. The OP No. 1 deposited the amount of Rs. 81,631/- in the loan account, therefore, due to the negligence of opposite parties, the insurance policy in favour of Vijay Kumar Arora and complainant No. 1 was not issued. The complainant No. 1 and deceased Vijay Kumar Arora were not informed with regard to the non-issuance of insurance policy during the lift time of said Vijay Kumar Arora. That legal notice dated 18.3.2009 was sent to the opposite parties, but the claim of the complainants has not been settled, hence this complaint.
6.

The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, mis-joinder of parties, cause of action and jurisdiction were raised. On merits, the claim put forth by the complainants has been denied. It is replied that there is no deficiency on the part of the replying opposite party.
7.

The opposite parties No. 2 and 3 filed the joint reply. The preliminary objections vis-a-vis maintainability and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Sh. Vijay Kumar Arora and Complainant No. 1 applied for housing loan from HDFC (O.Ps No. 2 and 3 ) and a loan of Rs. 20 lac was sanctioned vide approval letter dated 26.2.2007 (Loan Account No. 563127376).


It is further replied that Vijay Kumar Arora and Complainant No. 1 moved an application dated 16.3.2007 to HDFC with the request that they will get Term Assurance Insurance Policies from HDFC Standard Life Insurance – OP No. 1 and the loan amount be increased accordingly. The premium amount of Rs. 81,631/- was worked out as one time premium for the insurance policy, which was to be paid to HDFC Standard Life Insurance – OP No. 1 on the request of deceased Vijay Kumar Arora and complainant No. 1. It is further replied that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other bearing No. 801007 dated 18.4.2007 of Rs. 24,809/- in favour of HDFC Standard Life Insurance Co. Ltd.


That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with HDFC Standard Life Insurance Company Limited – OP No. 1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No. 1. The amount of Rs. 81,631/- was debited in the loan account of deceased Vijay Kumar Arora and complainant No. 1, to ensure that the funds are utilized for the purpose for which the loan had been approved. It is further replied that deceased Vijay Kumar Arora and complainant No. 1 were required to get themselves medically examined and complete other formalities.

8.

It is further replied that it seems that deceased Vijay Kumar could not complete the formalities, as such, the cheques referred to above, had also not been deposited by him with OP No. 1, as the cheques were never presented for payment to the bank, as such both the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant No. 1. That information to this effect was given to complainant No. 1. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and complainant No. 1 insured. Since no insurance policy had been issued by the insurance company, therefore, there is no question of any insurance claim. It was not the duty of replying opposite parties to complete the requirements of the insurance company, as such the replying opposite parties cannot be made liable. The complainant No. 1 and Sh. Vijay Kumar Arora had not completed the requirements of getting the insurance policy and also not deposited the cheque of the premium amount with OP No. 1.

9.

In order to prove the case, the complainants tendered in evidence affidavit of Kush Sethi – Ex. C-1, copy of letter dated 26.2.2007 – Mark C-2, loan agreement – Mark C-3, receipt – Mark C-4, letter dated 16.3.2007 – Mark C-5, forms dated 17.3.2007 – Mark C-6, Mark C-7, letter dated 13.10.2008 – Mark C-8, disbursement memo dated 3.3.2007 – Mark C-9, memo dated 18.4.2007 – Mark C-10, memo dated 16.5.2007 – Mark C-11, statement of account – Mark C-12, statement of account from 1.4.2007 to 31.12.2008 – Mark C-13, letter dated 2.2.2009 – Mark C-14, letter to Banking Ombudsman – Mark C-15, order dated 3.10.2008 – Mark C-16, complaint form dt. 13.10.2008 – Mark C-17, letter dated 23.10.2008 – Mark C-18, letter dated 17.10.2008 – Mark C-19, carbon copy of notice – Ex. C-20, postal receipts – Ex. C-21 to Ex. C-23, A.Ds – Ex. C-24 to Ex. C-26, copy of death certificate – Mark C-27, copy of power of attorney dated 13.3.2009 – Mark C-28, copy of power of attorney dated 1.3.2007 – Mark C-29 and closed the evidence.
10.

In rebuttal, the opposite party No. 1 tendered in evidence affidavit of Rahul Dhanotia – Ex. OP-1, whereas, affidavit of Nandan Singh Rawat – Ex. OP-2, disbursement memo – Mark OP-3 (pages 2), letter dated 2.9.2008 – Mark OP-4 and closed the evidence on behalf of opposite parties No. 1 to 3.
11.

The learned counsel for the parties filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The case of the complainants is that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant No. 1 for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) as premium was to be paid by OPs No. 2 and 3 to OP No. 1. It is the allegation of the complainants that they informed OP No. 2 with regard to the death of Vijay Kumar Arora and also made a request to adjust the insurance money in the loan account after claiming it from OP No.1, but of no consequences.
13.

It is further the allegation of the complainants that deceased Vijay Kumar Arora and complainant No. 1 were not got insured by OP No. 1 and the amount of Rs. 81,631/- was deposited/adjusted in the loan account. That the complainant No. 1 and Vijay Kumar Arora were not informed with regard to the non-issuance of the insurance policy during the life time of Vijay Kumar Arora.
14.

The opposite parties raised the preliminary objections with regard to maintainability and cause of action. The opposite parties No. 2 and 3 had raised the defence that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other cheque bearing No. 801007 dated 18.4.2007of Rs. 24,809/-in favour of HDFC Standard Life Insurance Co. Ltd. - OP No. 1. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with OP No.1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No.1.


The opposite parties No. 2 and 3 had further raised the defence that the amount of Rs.81,631/ was debited in the loan account of deceased Vijay Kumar Arora and complainant No. 1,as the said cheques were never presented for payment to the bank, as such the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and complainant No. 1. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and complainant No. 1 insured. Since no insurance policy had been issued by OP No. , therefore, there is question of any insurance claim.
15.

Now, the point which calls determination from this Court is whether the chques of Rs. 56,822/- and Rs. 24,809/-, referred to above, were deposited with OP No. 1. The answer to this is in the negative.
16.

The opposite parties No. 2 and 3 in their reply to Para No. 3 has stated that the cheques were cancelled and the amount was credited in the loan account of Sh. Vijay Kumar Arora and complainant No. 1 and information to this effect, was given to complainant No. 1.
17.

Mark OP-4 is a letter dated 20th September, 2008 written by OP No. 2 to complainant No. 1 and its relevant portion reads as under :

“The cheques had been collected from our Jalandhar office by your husband for depositing them with the insurance company. However, on receipt of your letter, we have checked from the insurance company and find that there is no policy that has been issued by them against the above-mentioned cheque/s, with the result the insurance company could not issue the policies. We have also checked our Bank Statements and find that the above-mentioned cheques were not paid/cleared by our bank and accordingly the amount of the cheques was credited in your loan account.”

18.

The defence raised by opposite parties No. 2 and 3 in para No. 3 of the reply is supported by the affidavit of Nandan Singh Rawat – Ex.OP-2. The complainant has failed to rebut the contents of the letter – Mark OP-4, referred to above. More-so, the amount of Rs. 81,631/- has been credited in the loan account of deceased Vijay Kumar Arora and complainant No. 1 qua document – Mark OP-4, therefore, it can legitimately be concluded that the amount of Rs. 81,631/- has not been deposited with OP No. 1. It is also clear from the statement of account – Mark OP-3 that the amount of Rs. 81,631/- has been credited in the account of deceased Vijay Kumar Arora and complainant No. 1, therefore, it can be concluded without any hesitation that deceased Vijay Kumar Arora, the husband of complainant No. 1 had failed to deposit the amount of Rs. 81,631/- with OP No. 1, as such, OP No. 1had not issued any insurance policy in favour of deceased Vijay Kumar Arora and complainant No. 1 and ultimately, the amount of Rs. 81,631/- was credited in the account of deceased Vijay Kumar Arora and complainant No.1.
19.

Since the amount of Rs. 81,631/- has not been deposited with OP No. 1, therefore, HDFC Standard Life Insurance Company Ltd. - OP No. 1 was not under legal obligation to issue the insurance policy in favour of complainant No. 1 and decesed Vijay Kumar Arora. More-so, the complainant has not produced any evidence on the record to prove that the opposite parties No. 2 and 3 were under legal obligation to deposit the amount of Rs. 81,631/- with the insurance company- OP No. 1.
20.

Now, it is clear that there is no insurance policy issued in favour of deceased Vijay Kumar Arora and complainant No. 1, therefore, it is concluded that the present complaint is not maintainable and the complainant has no cause of action to file the present complaint, consequently, the complaint is dismissed. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Poonam Sethi, age 46 years, widow of Vijay Kumar Arora, resident of H.No. 194, Ward No. 4, Moonak Gali, Urmur, Distt. Hoshiarpur.


........ Complainant

versus


1.

H.D.F.C. Standard Life Insurance Amminet Mall, Above Axis Bank, Court Road, Hoshiarpur, through its Branch Manager.
2.

Housing Development Finance Corporation Ltd., (HDFC Ltd.), 136, Near Jawahar Nagar, Cool Road, Jalandhar, through its Branch Manager.
3.

D.J.M., HDFC Ltd., SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.


............ Opposite Parties


1.

The complainant namely Poonam Sethi has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the case are that deceased Vijay Kumar Arora, the husband of complainant and the complainant applied for Housing Loan from HDFC Ltd., and a loan of Rs. 20 lacs was sanctioned vide approval letter dated 26.2.2007.
2.

It is further the case of the complainant that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and complainant for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) on account of insurance premium was to be paid by opposite party No. 2 to opposite party No. 1. That the total loan amount was Rs. 20,81,631/-. That the amount of Rs. 81,631/-, one time instalment was also debited in the account of deceased Vijay Kumar Arora and complainant.
3.

It is further the case of the complainant that Sh. Vijay Kumar Arora expired on 2.6.2008. It is further the case of the complainant that she informed OP No. 2 about the death of Vijay Kumar Arora with the request to adjust the insurance money in the loan account after claiming it from OP No. 1, but of no consequences.
4.

It is the allegation of the complainant that a false story of collection of cheque by Vijay Kumar Arora has been cooked up. The OP No. 1 is a sister concern of OP No. 2.
5.

It is further the allegation of the complainant that she has come to know from reliable sources that deceased Vijay Kumar Arora and the complainant were not got insured by OP No. 1. The OP No. 1 deposited the amount of Rs. 81,631/- in the loan account, therefore, due to the negligence of opposite parties, the insurance policy in favour of Vijay Kumar Arora and the complainant was not issued. The complainant and deceased Vijay Kumar Arora were not informed with regard to the non-issuance of insurance policy during the life time of said Vijay Kumar Arora. That the claim of the complainant has not been settled, hence this complaint.
6.

The OP No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, mis-joinder of parties, cause of action and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that there is no deficiency on the part of the replying opposite party.
7.

The opposite parties No. 2 and 3 filed the joint reply. The preliminary objections vis-a-vis maintainability and cause of action were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that Sh. Vijay Kumar Arora and Complainant applied for housing loan from HDFC (O.Ps No. 2 and 3 ) and a loan of Rs. 20 lac was sanctioned vide approval letter dated 26.2.2007 (Loan Account No. 563127376). It is further replied that Vijay Kumar Arora and the complainant moved an application dated 16.3.2007 to HDFC with the request that they will get Term Assurance Insurance Policies from HDFC Standard Life Insurance – OP No. 1 and the loan amount be increased accordingly. The premium amount of Rs. 81,631/- was worked out as one time premium for the insurance policy, which was to be paid to HDFC Standard Life Insurance – OP No. 1 on the request of deceased Vijay Kumar Arora and the complainant.


It is further replied that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other bearing No. 801007 dated 18.4.2007 of Rs. 24,809/- in favour of HDFC Standard Life Insurance Co. Ltd. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with HDFC Standard Life Insurance Company Limited – OP No. 1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No. 1. The amount of Rs. 81,631/- was debited in the loan account of deceased Vijay Kumar Arora and the complainant, to ensure that the funds are utilized for the purpose for which the loan had been approved. It is further replied that deceased Vijay Kumar Arora and the complainant were required to get themselves medically examined and complete other formalities.
8.

It is further replied that it seems that deceased Vijay Kumar could not complete the formalities, as such, the cheques referred to above, had also not been deposited by him with OP No. 1, as the cheques were never presented for payment to the bank, as such both the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant. That information to this effect was given to complainant. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and the complainant insured. Since no insurance policy had been issued by the insurance company, therefore, there is no question of any insurance claim. It was not the duty of replying opposite parties to complete the requirements of the insurance company, as such the replying opposite parties cannot be made liable. The complainant and Sh. Vijay Kumar Arora had not completed the requirements of getting the insurance policy and also not deposited the cheque of the premium amount with OP No. 1.
9.

In order to prove the case, the complainant tendered in evidence affidavit of Kush Sethi – Ex. C-1, copy of letter dated 26.2.2007 – Mark C-2, loan agreement – Mark C-3, receipt – Mark C-4, letter dated 16.3.2007 – Mark C-5, forms dated 17.3.2007 – Mark C-6, Mark C-7, letter dated 3.10.2008 – Mark C-8, disbursement memo dated 3.3.2007 – Mark C-9, memo dated 18.4.2007 – Mark C-10, memo dated 16.5.2007 – Mark C-11, statement of account – Mark C-12, statement of account from 1.4.2007 to 31.12.2008 – Mark C-13, letter dated 2.2.2009 – Mark C-14, letter to Banking Ombudsman – Mark C-15, order dated 3.10.2008 – Mark C-16, complaint form dated 13.10.2008 – Mark C-17, letter dated 23.10.2008 – Mark C-18, letter dated 17.10.2008 – Mark C-19, death certificate – Mark C-20, copy of power of attorney dated 13.3.2009 – Mark C-21, copy of power of attorney dated 1.3.2007 – Mark C-22, affidavit of Poonam Sethi – Ex. CX and closed the evidence.
10.

In rebuttal, the opposite party No. 1 tendered in evidence affidavit of Rahul Dhanotia – Ex. OP-1, whereas, the opposite parties No. 2 and 3 tendered in evidence affidavit of Nandan Singh Rawat – Ex. OP-2, Disbursement Memo – Mark OP-3 (pages 2), letter dated 20.9.2008 – Mark OP-4 and closed the evidence on behalf of the opposite parties.
11.

The learned counsel for the parties filed written arguments. We have gone through the written submissions and record of the file minutely.
12.

The case of the complainant is that deceased Vijay Kumar Arora got himself insured for Rs. 15 lacs and the complainant for Rs. 12 lacs. That the amount of Rs. 81,631/- (one time instalment) as premium was to be paid by OP No. 2 to OP No. 1. It is the allegation of the complainant that she informed OP No. 2 with regard to the death of Vijay Kumar Arora and also made a request to adjust the insurance money in the loan account after claiming it from OP No.1, but of no consequences.
13.

It is further the allegation of the complainant that deceased Vijay Kumar Arora and the complainant were not got insured by OP No. 1 and the amount of Rs. 81,631/- was deposited/adjusted in the loan account. That the complainant and Vijay Kumar Arora were not informed with regard to the non-issuance of the insurance policy during the life time of Vijay Kumar Arora.
14.

The opposite parties raised the preliminary objections with regard to maintainability and cause of action. The opposite parties No. 2 and 3 had raised the defence that OP No. 2 issued two cheques bearing No. 801006 dated 18.4.2007 of Rs. 56,822/- and the other cheque bearing No. 801007 dated 18.4.2007of Rs. 24,809/-in favour of HDFC Standard Life Insurance Co. Ltd. - OP No. 1. That the said cheques were handed over to Sh. Vijay Kumar Arora for depositing with OP No.1. It is denied that the insurance premium was to be deposited by opposite parties No. 2 and 3 to OP No.1. The opposite parties No. 2 and 3 had further raised the defence that the amount of Rs.81,631/ was debited in the loan account of deceased Vijay Kumar Arora and the complainant,as the said cheques were never presented for payment to the bank, as such the said cheques were cancelled and the amount was credited in the loan account of Vijay Kumar Arora and the complainant. It is denied that it was the liability of opposite parties No. 2 and 3 to get deceased Vijay Kumar Arora and the complainant insured. Since no insurance policy had been issued by OP No.1 , therefore, there is question of any insurance claim.
15.

Now, the point which calls determination from this Court is whether the chques of Rs. 56,822/- and Rs. 24,809/-, referred to above, were deposited with OP No. 1? The answer to this is in the negative.
16.

The opposite parties No. 2 and 3 in their reply to Para No. 3 has admitted that the cheques were cancelled and the amount was credited in the loan account of Sh. Vijay Kumar Arora and the complainant and information to this effect, was given to the complainant.
17.

Mark OP-4 is a letter dated 20th September, 2008 written by OP No. 2 to the complainant and its relevant portion reads as under :

“The cheques had been collected from our Jalandhar office by your husband for depositing them with the insurance company. However, on receipt of your letter, we have checked from the insurance company and find that there is no policy that has been issued by them against the above-mentioned cheque/s, with the result the insurance company could not issue the policies. We have also checked our Bank Statements and find that the above-mentioned cheques were not paid/cleared by our bank and accordingly the amount of the cheques was credited in your loan account.”

18.

The defence raised by opposite parties No. 2 and 3 in para No. 3 of the reply is supported by the affidavit of Nandan Singh Rawat – Ex.OP-2. The complainant has failed to rebut the contents of the letter – Mark OP-4, referred to above. More-so, the amount of Rs. 81,631/- has been credited in the loan account of deceased Vijay Kumar Arora and complainant qua document – Mark OP-4, therefore, it can legitimately be concluded that the amount of Rs. 81,631/- has not been deposited with OP No. 1.


It is also clear from the statement of account – Mark OP-3 that the amount of Rs. 81,631/- has been credited in the account of deceased Vijay Kumar Arora and the complainant, therefore, it can be concluded without any hesitation that deceased Vijay Kumar Arora, the husband of the complainant had failed to deposit the amount of Rs. 81,631/- with OP No. 1, as such, OP No. 1had not issued any insurance policy in favour of deceased Vijay Kumar Arora and the complainant and ultimately, the amount of Rs. 81,631/- was credited in the account of deceased Vijay Kumar Arora and complainant No.1.
19.

Since the amount of Rs. 81,631/- has not been deposited with OP No. 1, therefore, HDFC Standard Life Insurance Company Ltd. - OP No. 1 was not under legal obligation to issue the insurance policy in favour of the complainant and deceased Vijay Kumar Arora.More-so, the complainant has not produced any evidence on the record to prove that the opposite parties No. 2 and 3 were under legal obligation to deposit the amount of Rs. 81,631/- with the insurance company- OP No. 1.
20.

Now, it is clear that there is no insurance policy issued in favour of deceased Vijay Kumar Arora and the complainant, therefore, it is concluded that the present complaint is not maintainable and the complainant has no cause of action to file the present complaint, consequently, the complaint is dismissed. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Surjit Kaur w/o Harjinder Singh s/o Shiv Dev Singh r/o V.Sahlon, Tehsil and Distt. Nawanshahr. ….Complainant.

Versus

HDFC Bank Nawanshahr through its Branch Manager. ….Respondents



Surjeet Kaur (hereinafter called as complainant), has filed this complaint against HDFC Bank, Nawanshahr through its Branch Manager (hereinafter called as OP) for issuance of a direction to the Op to encash the FDR bearing No. 112103000038270 dated 08/08/2008 and pay interest on the maturity value of the FDR to the tune of Rs.20,000/- and litigation cost of Rs.10,000/-.

2. The brief admitted facts of this complaint are that the complainant is the holder of FDR referring above which was to mature on 08/08/2008, issued by Centurion Bank of Punjab which now stands merged with the OP bank. It is claimed that another FDR had been purchased by the complainant in the sum of Rs.53,000/- from the Centurion Bank of Punjab which was to mature in the month of January or February 2009. The said FDR was got encashed by the complainant prematurely on 16/07/2008. The complainant being not in possession of the said FDR, is unable to give specific details of the same.


It is added that on maturity of FDR bearing No. 112103000038270, the complainant had approached the Op bank for its encashment but the Bank staff kept on dithering over the matter. Later on the staff of the Op bank put up an excuse that this FDR had been encashed on 16/07/2008. Efforts on the part of the complainant to convince the staff of the Op bank that this FDR was never encashed did not bear any fruit. The Op bank is thus stated to be deficient in service towards the complainant, in addition to causing mental as well as physical harassment to her. Hence this complaint.

3. In the written version filed by the Ops, it was not disputed that the complainant and her husband the joint FDR from the Centurion Bank of Punjab for Rs.53,704/- dated 07/08/2008 which carried the maturity value of Rs.59,151/- and the maturity date was 08/08/2008. It is contended that the original FDR carries the title as “Fixed Deposit” and its advice carries the title of “Confirmation of Fixed Deposit”. The FDR which is in possession of the complainant was stated to be confirmation receipt only. It was contended that the FDR bearing No. 112103000038270 was got encashed by the complainant on 16/07/2008 and the amount was credited to there saving account.


The original FDR handed over to the bank for encashment was alleged to have been misplaced at the Branch during the binding/handling of the vouchers. It was specifically denied that any other FDR of the complainant exist in the Bank record as claimed by the complainant. Even the complainant was stated to have failed to provide any other FDR or its confirmation of the fixed deposit. On the insistence of the complainant, the OP bank claimed to have searched the bank record no after FDR was found to exist. It was denied that the Op bank was deficient in service towards the complainant. A prayer for dismissal of the complaint was accordingly made.

4. Both the parties have placed on record their respective evidence in the shape of affidavits and other documents.

5. We have considered the written as well as oral submissions advanced by the learned counsel for the parties and carefully scrutinized the evidence on record.

6. No doubt the complainant has alleged that she possessed an other FDR which was to mature in the month of January or February 2009, in addition to the FDR No. referred above, yet from the allegations in the complaint itself it is clear that the complainant was not aware of its number of date of its issuance, as well as date of maturity. In such circumstances, it will be unjust to draw an inference that any such FDR was ever obtained by the complainant or her husband from Centurion Bank of Punjab or it was presented to the Op bank for its encashment, prematurely. The complainant could have produced here saving bank account statement from where the amount must have been withdrawn by her for the purchase of any FDR dated 17/08/2007 but she did not prefer to do so.


On the contrary the Op have categorically stated that the FDR for 07/08/2007 for Rs.53,704/- bearing no. 11210300038270 which was to mature on 08/08/2007 with maturity value of Rs.59,151/- had been duly encashed by the complainant on 16/07/2008 and the maturity value of Rs.59,151/- duly credited to her saving account copy of which is Ex.R-3. Ex R-2 is account statement of the complainant from 01/07/2008 to 17/07/2009. Perusal of Ex. CW1/B lends credence to the contention of the Op as it is infect is a confirmation of fixed deposit and not the original FDR which was submitted to the bank but later on misplaced by the bank during binding/handling of the vouchers.


Mere possession of original deposit confirmation receipt by the complainant can not lead to the conclusion that this FDR was not encashed or the complainant had any after FDR which was prematurely encashed on 16/07/2008. It is also pertinent to mention that FDR dated 07/08/2007 confirmation of deposit receipt of which is in possession of the complainant was also to mature on 08/08/2008 where in it was encashed prematurely on 16/07/2007. No motive can be attributed to the Op bank for denying the benefits of any other FDR, if at all the complainant had actually obtained the same from Centurion Bank of Punjab.

7. In the light of the aforesaid facts, we are constrained to hold that no deficiency in service on the part of the Op bank towards the complainant is established. The complaint is therefore dismissed.

8. Leaving the parties to bear their own costs.

9. The copies of this order be sent to the parties as per rules.

10. File be consigned to the record room.

Harpreet Singh son of Sh. Jagjit Singh, resident of No.14697, Street No.3, Kalsi Nagar, Dholewal, Ludhiana.

(Complainant)

Vs.



1. H.D.F. C Bank, Kalsi Nagar, Ludhiana through its M.D/Chairman.



2. The Branch Manager, H.D.F.C. Bank, Kalsi Nagar, Ludhiana.

(Opposite parties)






O R D E R



1. Complainant under Prime Minister Rojgar Yogna Scheme, after fulfilling all the formalities and completion of documentation of small scale industries, approached the OP-Bank for loan. They sought project report before approval of the loan. Spent Rs. 3000/- to obtain project report from the Chartered Accountant and submitted the same to the bank, who issued sanctioned letter dated 20.3.2008 subject to sanctioning of P.M.R.Y. loan cases for the year 2007-08. Thereafter, repeatedly requested OP-Bank to relase the loan amount, but they evaded on one pretext or the other. By not releasing the loan after sanctioning, is claimed amount to deficiency in service on their part. Resultantly, also served legal notice dated 9.8.08 but without any effect. Hence, this complaint for direction to the opposite party to disburse loan of Rs.2,00,000/- and to pay him Rs. 85,000/- compensation for mental pain and agony along with Rs.15,000/- litigation costs.

2. Opposite parties no.1 & 2 in joint reply claimed that allegations of the complainant are baseless, frivolous and there is no deficiency in service on their part. However, they conceded that complainant applied for loan of Rs.2,00,000/-under Prime Minister Rojgar Yogna Scheme. But denied that he had fulfilled all the formalities or they demanded project report from him. Request of the complainant for loan was declined for non completion of formalities and project report submitted by the complainant was of trading of steel and aluminum scrap which is an industrial activity. Further claimed that sanction and disbursement of the loan is their discretion and they can refuse to disburse the loan without assigning any reason.

3. In order to prove their respective versions, parties led their evidence by way of affidavits and documents.

4. We have heard the arguments addressed by ld. counsel for the parties, gone through file, scanned the documents and other material on record.

5. It is admitted that the complainant under Prime Minister Rojgar Yogna Scheme applied for loan of Rs.2,00,000/- from the Op-Bank. Bank, consequently issued sanctioned order (Ex. CW3) in favour of the complainant, sanctioning loan of Rs.2,00,000/- in his favour subject to completion of bank formalities. Directed G.M. Industrial Centre, Ludhiana to impart necessary training to the complainant, so that loan amount be disbursed. After issuance of the letter Ex.CW3 by the opposite party, complainant underwent industrial training qua which obtained certificate Ex.CW2 from the General manager, Industries General, Ludhiana

6. It is apparent that while sanctioning the loan, pre condition made by the opposite party was to obtain necessary training before enabling the bank to release and disburse sanctioned loan in his favour. This condition was complied by the complainant, when obtained certificate Ex.CW2 after undergoing training programme during the months of March- April,2008 from the Institute for Auto Parts Technology, Ludhiana. Earlier the complainant had complied with requirements of the opposite submitting project repot to them and complainant claimed that had spent Rs.3000/- for obtaining such report. The opposite party in reply has stated that project report submitted by the complainant was of trading of steel and aluminum scrap which was industrial project. It means project report as asked by the opposite party from the complainant, was made available to them.

7. When after meeting requirements of the opposite party sanctioned loan was not disbursed, complainant filed application Ex. CW4 and CW5 to the Hon’ble Prime Minister of India, New Delhi and thereafter issued legal notice Ex.CW1, posted through postal receipt Ex.CW6 to the opposite party but till filing of the complaint loan so sanctioned was never released in his favour.

8. No doubt, it may be discretion of the OP-Bank to release or not release the loan unless and until all their requirements are complied by the loanee. In the instant case, whatever were conditions for sanctioning of the loan, stood fulfilled by the complainant. What other formalities he failed to complete, opposite party has not been able to specify the same. Only for the sake of objections, they have taken such plea without any substance. It appears that officials of the opposite party by their acts and deeds not only frustrated aims, goals and designs of the complainant but also of the Govt. of India to help the Youth of the nation to get self employment by starting work at small scale with the help of bank loans.

9. Hence, we are of the view that opposite party-Bank certainly in this respect would be guilty of not rendering proper services to its own consumer. As they after applying for loan by the complainant, made him to shift his stand by undergoing training and procure project report by spending Rs.3000/- thereon. Consequently, the loan should have been disbursed, but not done so and this act on the part of opposite party-Bank certainly would be deficiency in service. Such deficiency has gone against intention of the Central Govt. to help unemployed Youth of the Nation.

10. Sequel to the discussions, we allow this complaint and as a result direct opposite party to disburse, on execution of requisite documents as required by the bank, loan of Rs.2,00,000/- to the complainant under prevailing loan policy of the bank and for causing sufferance, agony to the complainant pay him compensation of Rs.10,000/- (Rs. Ten Thousands only) and litigation cost of Rs.2000/-(Rs. Two Thousands only) within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.