IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 26th day of October, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 37/2021 (filed on 09-03-2021)
Petitioner : Omana Kuttappan,
Colony No.42,
Perunnelparambil,
S Puram P.O.
Kurichi – 686532.
Vs.
Opposite Parties : (1) Pittappilli Agencies,
Thaiparambil Arcade,
Peringara, Thiruvalla.
(2) Bajaj Finance
Branch, Changanacherry
(Adv. Jaison Paliyil)
(3) S.B.I.
Branch Manager,
Chingavanam.
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section 35 of Consumer Protection Act, 2019.
Case of the complainant is as follows:
The complainant had purchased a T.V. from the first opposite party on 31-12-2018 for an amount of Rs.19,900/ by availing a loan from the second opposite party. The said loan was closed in the year 2019 and no dues certificate was issued by the second opposite party. But after the closure of the loan money from the account of the complainant is lost. When it came to the knowledge of the complainant she had lodged a complaint before the Changanacherry police authorities. Though the police authorities directed the second opposite party to refund the amount but they did not do the same.
The request of complainant to the third opposite party to close her bank account also became vain. The third opposite party assured the complainant that her money would not loose in future. When the money was lost again, the third opposite party informed the complainant that they could not do anything more. According to the complainant the second and third opposite parties are evading from the refund of money by blaming each other. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.29,000/- along with a compensation of Rs.41,000/- and cost of this litigation.
Though the notice was duly served to the first and third opposite parties, they neither cared to appear before the forum nor to file version. Hence first and third opposite parties were set ex-party. Version of the second opposite party is as follows;
The relationship between the complainant and the first opposite party is that of debtor and creditor and not that of a consumer and service provider. Hence the complaint is not maintainable. The complainant had purchased a consumer durable from the first opposite party by availing a loan from the second opposite party along with insurance at 0% interest. It is submitted in the version that complainant had issued NACH/Auto Debit Mandate for the repayment of the instalments. The total amount of EMI which has got deducted from the account of the complainant every month is Rs.2454/-. However, the complainant was not maintaining the sufficient balance in his bank account on due dates, hence auto debit mandate presented by the second opposite party for collection of EMIs were returned unpaid by the complainant’s banker.
The complainant has paid the bounced EMI’s in cash subsequently. Second opposite party had duly sent the reminders to the complainant on her registered mobile number before the EMI due date reminding the complainant to maintain the sufficient balance in her account. As per the usual practice, if the customer is not maintaining sufficient balance in his/her bank account and his/her loan EMI Cheque /auto debit mandate not being honoured then the said customer has to pay the bouncing charges to his banker where he/she maintains the savings account and to his credit from where he/she has availed loan. It is submitted in the version that instead of collecting the alleged charges on respective due dates, the bank of the complainant has collected these charges on subsequent dates as per its convenience. As the complainant has not maintained the sufficient balance in her bank account as a result of which Rs.450/- has been deducted towards the additional penalty charges. There is no deficiency in service or unfair trade practice on the part of the second opposite party.
Complainant filed proof affidavit in lieu of chief examination and exhibits A1 to A4 were marked. No oral evidence is adduced by the second opposite party. Documents produced by the second opposite party are marked as exhibit B1 to B3.
On evaluation of complaint, version and evidence on record we would like to consider the following points?
- Whether there is any deficiency in service on the part of the opposite
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2. If what are the reliefs and cost?
Pont number 1 and 2
There is no dispute on the fact that the complainant had availed a loan of Rs.19,900/- from the second opposite party wide loan account no. 6W80CD99932969 on 31-12-2018 for the purchase of NPIL LED TV. On the same day itself the complainant had availed another loan of Rs.3705 from the second opposite party vide loan account number 6W8BEW99932997 for CPPP Asset Care. Admittedly the said loans were closed. The second opposite party contended that relationship between the complainant and the first opposite party is that of debtor and creditor and not that of a consumer and service provider. Section 2(7) (ii) of Consumer Protection Act 2019 defines consumer as “ hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.
Section 2 (42) service defines “service means service of any description which is made available to potential users and includes, but not limited to the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
Bank transactions have specifically been brought within the ambit of Consumer Protection Act. One of the important services rendered by the bank is advancing of loan of various kinds. In the instant case the bank itself has evolved a scheme for grant of loan. Our view in the matter is that whenever one purchase goods with the financial assistance of the bank or for that matter, any other financial institution, and one essentially hires the services of the bank/financial institution for which one pays service charge to the financier in the form of interest. Let us appreciate that, had there been no rendering of service, there would be any question of payment of service charge (interest). Differently put, the opposite parties, which belong to the service sector, rendered services of financial assistance to the complainant by receiving interest in lieu of stipulated service charges in the form of interest. The present dispute, accordingly, is very much maintainable under the Act.
The specific case of the complainant is that though he had paid the entire amount without default money has been deducted from her account. It is admitted by the second opposite party that the complainant had paid all the EMI’s and closed the loans. Exhibit A1 is the loan financial summary as on 24-2-2020 for loan account of 6W80CD99932969 and 6W8BEW99932997. On perusal of loan financial summary as on 24-2-2020 for loan account of 6W80CD99932969 we can see that the total loan amount was 19,900/ and Rs.3980 is received by the opposite party as down payment. It is further proved that complainant had paid Rs.15,920/- in 10 monthly instalments. It is further stated in the loan financial summary for loan account of 6W80CD99932969 that an amount of Rs.1,550/- has been paid by the manufacturer as interest. On a mere reading of the said loan summary it can be seen that the complainant was not cared to keep sufficient balance in her bank account to honour the ECS mandate on the agreed date. All the ECH mandates which were executed by the complainant to deduct the Emi of Rs.1990 were bounced due to the insufficient funds. On perusal of exhibit B3 which is the term loan sheet it can be seen that the complainant has agreed to levy Rs.450/- for the bouncing of ECS mandate. It is evident from Exhibit A1 and B1 that the opposite party has charged Rs.3,608/- towards the bounce charges. Thus the opposite party has collected Rs.19,528/- (15920+3608) from the complainant for closing the loan account of 6W80CD99932969.
Similarly in loan account 6W8BEW99932997 the opposite party has collected Rs.3,712/- towards the loan amount. In this loan the interest is 7% and the opposite party has collected Rs.2006 as the late payment penalty. In this loan account also all the ECH mandates which were executed by the complainant to deduct the Emi of Rs.464/- were bounced due to the insufficient funds. Thus the opposite party has collected Rs.5,711/- from the complainant to close the loan account 6W8BEW99932997.
Though the complainant alleged that after the closure of the loan accounts money from her bank account is lost she did not adduce any evidence to prove the same. The complainant did not care to produce the details of the bank account in which she had executed ECS mandate to deduct the EMI’s of the said loans.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed.
Pronounced in the Open Commission on this the 26th day of October, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Loan transaction details between 31-12-18 to 24-02-2020
A2 – Copy of no due certificate dtd.12-11-2019 issued by 2nd opposite party
A3 – Copy of invoice dtd.31-12-18 issued by 1st opposite party
A4 – Copy of warranty certificate by Panasonic
Exhibits marked from the side of opposite party
B1 – Copy of loan account statement
B2 – Copy of certified copy of the Resolution passed by the Board of Directors
of Bajaj Finance Ltd.
B3 – Copy of loan term sheet
By Order
Sd/-
Assistant Registrar
