DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 24th day of November, 2023.
Filed on: 30/06/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 326/2022
COMPLAINANT
Sai Krishnan, S/o. Janardhanan, Veliyathu Parambil, Puliyanam P.O., Parakkadavu, Ernakulam 683572.
VS
OPPOSITE PARTIES
- Bajaj Fin Serv., 4th Floor, Survey 208/1B, Viman Nagar, Pune 411014.
- Bajaj Finance, 1st Floor, Ceepees Building, Angamaly.
(Rep. by Adv. Philip T. Varghese, Achu Shubha Abraham, Amala Purushothaman, Gayahri Vijayan, TD Road, Ernakulam 682011)
F I N A L O R D E R
D.B. Binu, President:
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant obtained a loan of Rs. 31,000 from Bajaj Finance on EMI terms to purchase a laptop five years ago. This loan was fully repaid in 18 months, as evidenced by a No Dues certificate. However, on June 15, 2022, they received a message from Bajaj Finance demanding a payment of Rs. 3,446, threatening a change in their CIBIL score and an open loan status if unpaid. A visit to Bajaj Finance's Angamali office revealed that this was due to a technical error. Concurrently, the individual missed an opportunity to obtain a separate loan of Rs. 1,06,000 due to issues with their CIBIL score. It was later discovered that the missed loan opportunity and ensuing stress were caused by an overstated loan amount on their CIBIL score by Bajaj Finance. The complainant had planned to buy a vehicle using the Rs. 1,06,000 loans from Federal Bank, but due to these complications, the complainant had to pledge their mother's gold and take a loan from South Indian Bank. The complainant attributes their financial and mental hardships to the technical issues and negligence of Bajaj Finance. As a result, they are seeking compensation totalling Rs. 4,24,000, which includes Rs. 2,12,000 for mental distress and another Rs. 2,12,000 for financial losses.
2) Notice
The Commission issued a notice to the opposite parties; the opposite parties submitted their versions.
3) THE VERSION OF THE OPPOSITE PARTIES
The complaint against Bajaj Finserv is challenged as defective, baseless, and without merit. The opposite party clarifies that the loan was financed by Bajaj Finance Limited, not Bajaj Finserv, which is a trade name used by both Bajaj Finserv Limited and Bajaj Finance Limited. Bajaj Finserv Limited, an incorporated company under the Companies Act, 1956, and a core investment company, is distinct from Bajaj Finance Limited, a non-banking financial company that provided the loan. The complainant mistakenly targeted Bajaj Finserv Limited, which does not engage in financing consumer durables and has no branch offices in India.
The complaint is not maintainable in law, citing various judgments that define the relationship between a finance company and its clients as that of a debtor and creditor, not consumer and service provider, hence outside the purview of the Consumer Protection Act. They assert that the complainant is not a "consumer" under this Act.
Furthermore, the opposite party claims the complaint is baseless and frivolous, filed after the issue was resolved. They state that the loan account was closed and a No Dues Certificate issued on 23.06.2022, facts allegedly not disclosed to the Commission by the complainant. The opposite parties deny all allegations and insists the CIBIL score was unaffected, as the technical error did not involve delayed EMI payments. They also deny the complainant's claim of financial loss and mental distress, calling for strict proof and arguing that the complaint is an attempt to gain undue advantage and waste the Commission's time. In conclusion, the opposite parties request the dismissal of the complaint for lack of cause of action and deficiency in services.
4) . Evidence
The complainant, in this case, has not submitted a proof affidavit but six documents. The opposite parties also submitted six documents.
5) The main points to be analysed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iii) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The complainant has been continuously absent since 23-02-2023. The Registry of the Commission has informed the complainant by phone to appear and furnish evidence. Despite being given the opportunity, the complainant neither filed the proof affidavit nor appeared before the commission thereafter. The complainant has had several opportunities to proceed with the case, but has shown no interest in doing so.
Due to the complainant's persistent absence and lack of evidence, the commission has no choice but to dispose of the complaint based on the available evidence. Consequently, the commission proceeds with the disposal of the complaint.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it.”
The legal maxim "vigilantibus non dormientibus jura subveniunt" (The law assists those who are vigilant, not those who sleep.) is highly significant in consumer cases. It stresses the importance of being proactive and diligent in protecting one's rights and interests in legal matters. By actively safeguarding their rights, individuals are more likely to receive legal support compared to those who neglect their responsibilities. In consumer cases, this maxim emphasizes the need for consumers to be vigilant and attentive when facing potential legal issues, ensuring they protect their rights as buyers.
After careful consideration, it has been determined that the complainant's case lacks merit. The issues above mentioned (i) to (iii) have also not been resolved in the complainant's favour. Consequently, the following orders are issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 24th day of November, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 326/2022
Order Date: 24/11/2023
