Haryana

Panchkula

CC/172/2019

ANIL KUMAR. - Complainant(s)

Versus

STATE BANK OF INDIA. - Opp.Party(s)

PRIYA BAJAJ GROVER.

30 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	172 of 2019
Date of Institution	:	14.03.2019
Date of Decision	:	30.05.2022

 

 

Anil Kumar son of Shri Partap Singh, resident of House No.142, Shiv Nagar, Peer Muchhala, Zirakpur, District Mohali(Punjba).

 

                                                                           ….Complainant

Versus

1.     State Bank of India, SCO No.14, Sector-10, Panchkula through its Branch Manager.

2.     HDB Finance Investment, 87, MDC, Rail Vihar, Sector-5, Panchkula.                                                                                                                                                                ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person.    

                        Sh. Sanjeev Gupta, Advocate for OP No.1.

                        Ms. Sanamjeet Kaur, Advocate for OP  No.2. 

 

                                        ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant is having a saving bank account no.10275254753 with OP no.1. On 15.11.2018, he received a message regarding debit of an amount of Rs.9,168/- from his saving account. As the said transaction was not made at the instance of the complainant and he visited the Op No.1 and inquired about the debit of said amount then the officials of the OP No.1 disclosed that the debit has been made in favour of HDB Finance Investment. The complainant disclosed the fact the he has not authorized to the HDB Finance Investment to make any transaction in the said account. The complainant made a written request in this regard on 15.11.2018 to the OP No.1 and further requested to OP No.1 not to make any future transaction in favour of the HDB Finance Investment. The officials of the OP No.1 assured that the same will be credited in his account. But in the month of December 2018 the OP No.1 again debited the amount of Rs.9,168/- from his account. The complainant again contacted the OP No.1 on 07.01.2019 and asked the reason of again debit of Rs.9,168/- but no positive response received by them. He also brought the matter to the AGM, GM and Chairman of the SBI through email dated 14.01.2019 but of no use. Due to the above said act and conduct on the part of the OPs, the complainant has suffered mental and physical agony, financial loss and harassment. The OPs have also committed deficiency in service and unfair trade practice; hence, the present complaint.  

2.             Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false and no cause of action. On merits, it is stated that as per record of OP, HDB Finance Investment has applied the ECS Mandate given by the complainant for payment of EMI of Rs.9,168/-. The OP bank has no control over it because it is electronic funds transfer from the account to another account. The complainant has concealed the fact that he had approached HDB Finance Investment or not and if approached whether ECS mandate  was being applied on his instructions and if ECS Mandate was applied without his instructions and with forged signature on ECS Mandate, then appropriate legal action is liable to be taken against the HDB Finance Investment. Since the complainant did not disclosed true facts, therefore, complaint is liable to be dismissed.  It is also stated that if HDB Finance Investment is illegally applying the ECS Mandate, then HDB Finance is liable to compensate the complainant as well as liable for prosecution. But no complaint has been made by complainant against HDB Finance & Investment. So, there is no deficiency in service and unfair trade of practice on the part of OP No.1 and prayed for dismissal of the present complaint.

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless; the complainant does not fall within the definition of a consumer; no cause of action; non-joinder and mis-joinder and suppressed the true material facts. On merits, it is stated that deduction  of EMI was made by the OP No.1 against the loan availed by Sh. Sunil Kumar on the basis of information and NAC  Mandate submitted by Sh.Sunil Kumar mentioning the said account number to be belonging to him. Sh.Sunil Kumar is real brother of Sh. Anil Kumar. On knowing the facts that Sh. Sunil Kumar has provided wrong information for recovery of EMIs, the OP No.2 confronted said Borrower Sunil Kumar and he while admitting to his fault gave a fresh NAC Mandate from another account of him maintained with Indian Bank. It is also denied that the debit has been made by the OP No.1 on instructions from OP No.2/HDB Financial Services. Rather, NAC Mandate issued by complainant’s brother-Sunil Kumar was sent by OP no.2 to NPCI’s NACH as per the guidelines of RBI. However, OP no.1 being the Destination Bank, without verifying the name of the account holder and account number. The deduction of the EMI was wrongly made from the account of the complainant.  It is further submitted that the OP no.2 has neither any concern nor is liable for the debit of the said amounts from the account of the complainant-Anil Kumar, since it being a Sponsor Bank has only sent  the NAC Mandate received from the Customer/Borrower-Sunil Kumar to the National Automated Clearance House and the ‘Destination Bank’ which in the present case is SBI is under legal obligation to check and verify  the details of NAC request received by it before putting the same in to operation and debiting the amount of the account holder. Pertinently, the debit is made by the Destination Bank from account. So, there is no deficiency in service and unfair trade of practice on the part of OP No.2 and prayed for dismissal of the present complaint.

3.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R-1/A and closed the evidence. The ld. Counsel for the OP No.2 has tendered an affidavit as Annexure R-2/A alongwith documents as Annexure R-2/1 to R-2/6 and closed the evidence.

4.             We have heard the complainant and learned counsels for Ops No.1 & 2 and gone through the entire record including written arguments filed by the complainant, the learned counsels for OP No.1 and OP No.2,   minutely and carefully.

5.             Admittedly, a sum of Rs.9,168+9,168, totaling, Rs.18,336/- was wrongly deducted from the account no.10275254753, which belongs to the complainant, with OP No.1 on 15.11.2018 and 11.12.2018 by the OP No.1 on the basis of ECS Mandate in favour of the OP No.2. The grievances of the complainant are that he never gave any such ECS mandate, in favour of the OP No.2 authorizing it to send the same to OP No.1 for deduction of any amount. The complainant contended that after the deduction made by OP No.1 on 15.11.2018, the matter was brought into notice of OP No.1 vide his application dated 15.11.2018(Annexure C-2) but a sum of Rs.9,168/- was again deducted in the next month by OP No.2. Pertinently, a sum of Rs.18,336/-, which was deducted by OP no.1 at the instance of OP No.2 from the account of the complainant has been refunded into the account of the complainant on 12.04.2019 but now, the prayer of the complainant is that he is entitled to be duly compensated on account of mental agony and harassment suffered by him due to the lapses and deficiencies on the part of the OPs.  

6.             The OP No.1 has denied any lapse and deficiency on its part.  The learned counsel on behalf of the OP No.1 reiterating the submissions made in para no.4 of the written submissions placed on record 09.09.2020 vehemently contented that OP No.2 i.e. HDB Finance Investment had committed the offence punishable under Section 26 of Payment & Settlement Act, 2007 as it had applied the ECS mandate on the basis of forged authorization. It is contended that OP No.1 has no control over the transactions made by the HDB Finance Investment because complete System is online and OP bank can have no opportunity to make any verification before allowing the transaction. The learned counsel further, contended that the delay, if any, in the refund, was caused by OP No.2 and thus there is no negligence and deficiency on the part of the OP No.1.

7.             The OP No.2 has also denied any lapse and deficiency on its part by filing written statement duly corroborated by affidavit Annexure R-2/A alongwith documents as Annexure R2/1 to R2/6. The learned counsel on behalf of the OP No.2 raised the objections about the maintainability of the complaint stating that the complainant does not fall under the category of consumer as defined under the CP Act, 1986.   This aforementioned objection is rejected because a sum of Rs.18,336/- was deducted by OP no.1 on the basis of ECS mandate sent by OP No.2 to OP No.1. On merits, it is contended that as per National  Automated  Clearance House  Procedural Guidelines, the OP No.2 has acted as Sponsor bank and OP No.1 is the destination bank, who was responsible for making proper verification of the account number etc prior  to acting upon the ECS mandate. It is vehemently contended that the OP No.1 i.e. State Bank of India, which had deducted the amount of Rs.18,336/- in question was duty bound to check  the credential  and verify the name of the account number of the complainant from whose account  a sum of Rs.18,336/- was deducted. It is contended that OP no.1 had failed to verify the name and account number of the complainant and also failed to provide the information to OP No.2 about the mis-match in the name and account number of the complainant.

8.             From the arguments advanced by the learned counsel for the OP No.1 and OP No.2, it has been found that both have blamed each other for the deduction of sum of Rs.18,336/- from the account of the complainant. We have perused the ECS mandate(Annexure R-2/3), which has led to the wrong deduction of sum of Rs.9168/-  on 15.11.2018 and Rs.9168/- on 11.12.2018 from the account of the complainant. The ECS mandate (Annexure R-2/3) bears the name of Sh. Sunil Kumar, who is allegedly brother of the complainant, whereas it had the account number as 10275254753 with SBI which belongs to the complainant. The OP No.2 could have easily deduct the mis-match in the name vis-a vis the  account no.1027525453 mentioned in the ECS mandate(Annexure R-2/3) while verifying the same with the loan application no.5492421(Annexure R-2/1) of Sunil Kumar, wherein his account number has been mentioned as 6151136809 with Indian Overseas Bank, therefore, the OP No.2 had acted in a negligent manner, while not cross checking the account details of the said Sunil Kumar as given in his loan application with the ECS mandate Annexure 2/3. Now, coming to the role of OP No.1, it is found that it has deducted a sum of Rs.9,168 on 15.11.2018 and Rs.9,168/- on 11.12.2018 on the basis of ECS mandate Annexure 2/3, which upon a bare perusal reflects the name of Sh. Sunil Kumar. The OP No.1 has placed on record no such instruction whereby it is exempted to make any kind of prior checking/verification about the account number and name of the consumer, while acting upon ECS mandate. Thus, OP No.1 was also negligent while making deduction on the basis of incorrect/wrong ECS, which was never given by the complainant. Therefore, we find the OP No.1 was also negligent and deficient while performing its duty in the matter in question.

9.             The OP No.1 is further found negligent by not taking immediate action on the application of Annexure C-2 filed by the complainant wherein the matter in question was duly brought into its notice as a sum of Rs.9,168/- again deducted in the next month even after filing of said application dated 15.11.2018 with OP No.1.

10.            From above discussion, it is clear that it is case of contributory negligence wherein both OP No.1 & OP No.2 have contributed to the deduction of the sum of Rs.18,336/- from the account of complainant.

11             As stated above a sum of Rs.18,336/- has already been refunded on 12.04.2019. In our opinion, it would meet the ends of the justice, in case, interest @9% is awarded on the said sum w.e.f. 15.11.2018 & 11.12.2018 i.e. respective date of withdrawal to the date of refund. Further, a compensation of Rs.5,000/- on account of mental agony, physical harassment seems to be adequate and fair keeping in view the facts and circumstances of the case.

12.            As a result of the above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.1 is directed to make the payment of interest @9% per annum on the amount of Rs.9168/- w.e.f. 15.11.2018 to 12.04.2019 and on the amount of Rs.9168/- w.e.f. 11.12.2018 to 12.04.2019.

 

2. The OP No.2 is directed to make the payment of Rs. 3,000/-to the complainant on account of mental agony and harassment.

 

3. The OP no.1 is directed to pay an amount of Rs.2,000/- to the complainant on account of litigation charges.

               

13.            The OP No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:30.05.2022

 

 

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini         Satpal

                 Member                   Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

   Satpal                                                

  President