DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 20th day of June, 2023.
Filed on: 04/07/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N
C.C. No. 267/2017
COMPLAINANT
K. S. JOSHY, S/o. Sankunny, 2-C, Lotus Apartments, Durbar Hall Road, Ernakulam-682016
(Rep. by Adv. Peeyus A. Kottam, No. 3, Anchorage, Palliyil Lane, Off. Forshore Road, Kochi 16)
VS
OPPOSITE PARTY
- HDFC Bank, Ravipuram Branch, Ground Floor, Elmar Square, Mahatma Gandhi Road Ernakulam 682016. Rep. by its Manager
- HDFC Bank, Choice Tower Branch, Choice Towers, Sahodaran Ayyappan Road, Ernakulam 682016. Rep. by its Manager
- The Manager (operation), HDFC Bank, Regional Office, Ravipuram, Ernakulam 682016.
- HDFC Ltd, Ramon House, H.T Parekh Marg, 169, Backbay Reclamation, Churchgate, Mumbai 400020.
- The Branch Manager, HDFC Ltd, 1st Floor, L & K tower, Near Padivattom Bus Stop, Padivattom, Cochin- 682024.
(OP. No. 4 & 5 Rep. by Adv. C.P. Saji, Mariyakulath Buildings, Ayyappankavu, Chittoor Road, Ernakulam 682011)
- The Manager, HDFC Bank cards Division, PO Box No-8654, Thiruvanmiyur, Chennai-600041.
(OP No. 1 to 3 & 6 Rep. by Adv. T. Rajesh, 4F, Metro Plaza, Ernakulam)
F I N A L O R D E R
D.B. Binu, President.
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. The complainant, who had been running a business establishment called "Guide Lines" for 30 years, opened a Savings Bank Account with HDFC Bank, Ravipuram branch in 1998 based on the representatives' promise of exclusive facilities. However, the complainant discovered unauthorized deductions totaling Rs. 14,808/- from the account, which prompted them to file a complaint with the Consumer Commission. The commission directed the bank to refund the amount with interest, which was duly returned. Despite this, the bank continued to make unauthorized deductions of Rs. 9,301/- from the complainant's account, violating the Reserve Bank of India guidelines. The bank eventually refunded the amount after repeated pressure from the complainant. Additionally, the complainant had another Savings Bank account with HDFC Bank, Choice Tower branch, where similar unauthorized charges were made. The complainant also faced issues with HDFC Bank when seeking a loan, as the bank referred them to their subsidiary company, HDFC Ltd., without informing the complainant. The bank later increased the interest rate without notice, resulting in a loss of over Rs. 2,50,000/-. The complainant also had loans for purchasing an office building, where the bank charged additional interest without intimation. The bank's credit card wing imposed unreasonably delayed payment charges and denied RTGS payments. The bank also charged excessive interest rates on the credit card, delayed credit for payments made directly to the bank, and imposed additional charges on the over-limit amount. These actions were seen as fraudulent and dishonest, contravening Reserve Bank of India regulations and the decisions of the Consumer Disputes Redressal Commission.
Bottom of Form
The complainant had approached the Commission seeking an order directing the opposite party to return of Rs. 10,969, which was illegally charged to their two savings bank accounts. They also want the interest of Rs. 2,500, credited to a closed account, to be forfeited as it was taken under the pretext of minimum balance charges. Furthermore, the complainant suffered a loss of Rs. 275,000 on their loan account due to an increase in the interest rate without any notification. They are asking for this loss to be compensated. Additionally, they want the bank to decrease the rate of interest on their two loan accounts. The complainant also mentions an illegal charge of Rs.1,300 on their credit card, which they are requesting to be refunded. Finally, they are seeking for the costs incurred in filing the complaint.
2). Notices
Notices were sent by the Commission to the opposite parties and the opposite parties 4 and 5 filed their versions. However, opposite parties 1, 2, 3, and 6 failed to submit their versions within the statutory period.
3). VERSION OF THE OPPOSITE PARTIES 4 & 5.
The complaint against these opposite parties will not come within the purview of the Consumer Protection Act and he is not a consumer as defined under the Consumer Protection Act.
The fourth party involved is a non-banking housing finance company that deals with housing loans, not a banking company. They have no connection to the other parties mentioned. The claim that the fourth party is a subsidiary of the first party is false and denied. The complainant's misunderstanding of the home loan agreement led to the filing of this complaint against the parties, even though the allegations have no relation to the transactions with these parties. The complaint is deemed invalid due to the misjoinder of causes of action and parties. Parties four to five are considered unnecessary to the complaint as they are not connected to the loans obtained from parties one to three and six. These parties operate according to guidelines issued by the National Housing Bank and the Reserve Bank of India, as well as their internal guidelines. Interest rates on existing home loans may undergo slight changes due to banking policies and regulations. The complainant himself applied for the home loan from the mentioned party, and the party's identity was clearly disclosed throughout the loan application process. The loan sanctioning and disbursement processes are separate, and the complainant had the opportunity to reject the loan if dissatisfied with the terms. The complaint's contention that the complainant was unaware of the party's identity is unfounded, as the complainant had previously obtained another loan from the same party. The complaint seems to include the party unnecessarily and with malicious intent. The allegation that the parties changed the interest rate and EMI without informing the complainant is denied, as variable-rate loans are subject to fluctuations based on market conditions and regulatory policies. The complainant himself benefited from interest rate changes. In cases of interest rate variations, either the loan term or the EMIs may change to maintain a constant EMI or cover the interest and principal repayment adequately. The parties deny the claim that the complainant incurred a loss due to interest rate and EMI changes. The complaint's assertions about interest rate changes in the second loan are false, as interest rate adjustments are common in variable-rate loans and agreed upon by borrowers. The claim of interest rate reductions is not in line with the true facts. The complainant approached the party for a home loan and subsequently applied for additional loans, indicating satisfaction with the terms and conditions. The home loan was not arranged by the other parties as alleged in the complaint.
4) . Evidence
The prof affidavit had not been filed by the complainant. The complainant had produced 7 documents that were marked as Exhibits-A-1 and A-7 as per the proceedings, no oral evidence was adduced by the complainant.
Exhibit-A-1. A copy of the judgment in C.C.No.66/2007 of the Hon'ble Consumer Disputes Redressal Commission.
Exhibit-A-2. The Bank Statement of Ravipuram Branch from 18/11/2006 to 31/12/2016.
Exhibit-A-3. A copy of the Bank Statement of Choice Tower Branch.
Exhibit-A-4. A copy of the letter dated 31.03.2014 issued by the complainant to the Bank
Exhibit-A-5. A copy of the Agreement dated 01.09.2010 executed by the complainant.
Exhibit-A-6. A copy of the Agreement dated 01.03.2013 executed by the complainant.
Exhibit-A-7. The statement of the credit card.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
The above case is filed by the complainant for compensation for the deficiency in service of the opposite parties. The complainant, a businessman, alleges that HDFC Bank engaged in various unfair practices and unauthorized charges related to his savings bank account and home loans. He claims that the bank adjusted an amount of Rs. 14,808 from his account without his consent for not maintaining the minimum balance and phone charges. He also accuses the bank of recovering additional amounts without proper justification.
The learned counsel for the opposite party submitted that the complainant claims that HDFC Bank and HDFC Ltd. (a separate company) are different entities, and he mistakenly took a loan from HDFC Ltd. instead of HDFC Bank. He asserts that the interest rates on his home loans were increased without notice, leading to financial losses. However, HDFC Bank argues that the complainant was aware of the distinction between the two entities when he signed the loan agreements. They maintain that changes in interest rates are in accordance with guidelines issued by regulatory authorities, and variable-rate loans are subject to market conditions. Moreover, HDFC Bank argues that the complaint is time-barred as it was filed after the limitation period specified by the Consumer Protection Act. No proof affidavit of the complaint is also filed. Though O.P.4 and 5 filed a petition for permission to cross-examine the complainant, the complainant did not turn it in and hence that petition was not considered by the commission. Thus, absolutely there is no oral evidence based on his pleadings when the alleged cause of action arose to the complainant. They also assert that the complainant misjoins unrelated causes of action and parties in the complaint. Additionally, they state that HDFC Ltd. is not a subsidiary of HDFC Bank and that the two companies operate independently with different management and business activities. Overall, HDFC Bank disputes the complainant's allegations, stating that they have followed regulatory guidelines, and the complainant's claims lack merit or are based on misunderstandings. They argue that the complaint should be rejected due to various legal deficiencies and improper inclusion of parties.
The complainant had not filed a proof affidavit before the commission. The opposite parties 4 and 5 requested permission to cross-examine the complainant, but the complainant did not turn up and hence that petition was not considered by the commission. As a result, there is no oral evidence to support the complainant's claim.
The loss, difficulties, and mental agony caused to the complainant as alleged by the complainant has not been proved by means of any oral or documentary evidence adduced by him other than mere averments made in the complaint. The burden of proof by the complainant to prove his case has not been met here.
The Honourable Supreme Court of India in Sgs India Ltd. vs Dolphin International Ltd. on 6 October 2021 (Civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009) 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. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in completely disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
In these light of the above circumstances, the complainant had failed to prove his case on merit and hence points Nos. (i) to (iv) are found against the complainant.
In the result, the complaint is dismissed with no cost.
Pronounced in the Open Commission on this the 20th day of June, 2023.
Sd/-
D.B.Binu President
Sd/-
V.Ramachandran Member
Sd/-
Sreevidhia TN., Member
Forwarded by Order
Senior Superintendent
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit-A-1. A copy of the judgment in C.C.No.66/2007 of the Hon'ble Consumer Disputes Redressal Commission.
Exhibit-A-2. The Bank Statement of Ravipuram Branch from 18/11/2006 to 31/12/2016.
Exhibit-A-3. A copy of the Bank Statement of Choice Tower Branch.
Exhibit-A-4. A copy of the letter dated 31.03.2014 issued by the complainant to the Bank
Exhibit-A-5. A copy of the Agreement dated 01.09.2010 executed by the complainant.
Exhibit-A-6. A copy of the Agreement dated 01.03.2013 executed by the complainant.
Exhibit-A-7. The statement of the credit card.
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 303/2023
Order Date: 13/06/2023
