Hdfc bank

adminadmin Administrator
ORDER
By Smt. C.S. Sulekha Beevi, President,
1. Complainant purchased a TVS Victor motor cycle, KL10-Q/2027 on 13-3-2003 by availing loan of Rs.30,000/- from opposite party. The amount was repayable in 20 EMI of Rs.1,788/- each commencing from April, 2003 and ending in October, 2004. That the first instalment was collected on the date of purchase itself. Complainant had issued 19 post dated cheques to opposite party for realising the instalments. Due to unforeseen reasons a few instalments were defaulted by complainant. Opposite party repossessed the vehicle without any notice. Subsequently a representative approached complainant and offered a 'one time settlement' and informed that if complainant paid Rs.3,000/- before 30th April, 2004 all the overdue interest and other charges will be waived. Complainant then paid Rs.3,000/- on 19-4-2004 to the representative. That complainant was under the impression that he need not pay any further amount. That opposite party collected further instalments using the post dated cheques but did not return the vehicle. Complainant was told that the vehicle is retained to ensure payments. Complainant had to purchase a Vespa Scooter for his use by spending Rs.5,000/-. When complainant approached opposite party in October, 2004 requesting to return the vehicle he was informed by opposite party that the Registration Certificate of the vehicle is submitted to Regional Transport Officer for cancellation of endorsement, and that the vehicle will be returned in mid of November, 2004. To the surprise of complainant, he received a letter from opposite party on 05-11-2004 intimating to clear arrears of Rs.9,497/- on or before 18-10-2004 failing which the vehicle will be sold. Though complainant immediately approached opposite party he was informed that the vehicle was already sold by auction on 01-11-2004. That the vehicle was a well maintained one with extra fittings, had covered hardly 5000kms and was having market value of more than Rs.45,000/-. Complainant alleges that opposite party has illegally seized the vehicle without notice and sold the same which amounts to deficiency in service. Hence this complaint.



2. Opposite party filed version admitting the finance transaction with complainant. That complainant committed repeated defaults. Even after frequent reminders he did not make the payments. A letter was issued requesting to clear the arrears. The vehicle was repossessed as per terms of the agreement. After repossession a letter was issued on 08-10-2004 informing about repossession and calling upon the complainant to pay Rs.9,497/- and to take release of the vehicle. Complainant did not respond to this and so the vehicle was sold on 01-11-2004 at the available highest market value. Opposite party admits that complainant remitted Rs.3,000/- by cash in April, 2004, but contends that this amount was paid before repossession. The allegations that the vehicle was repossessed without notice and that opposite party offered 'one time settlement' by payment of Rs.3,000/- is denied. Other allegations in the complaint are denied as false. That there is no deficiency in service and that complaint is to be dismissed.




3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A9 marked for complainant. Opposite party filed counter affidavit. Exts.B1 to B5 marked for opposite party. Either side has not adduced any oral evidence.




4. Points for consideration:-

      1. (i) Whether opposite party is deficient in service.
        (ii) If so, reliefs and costs.


5. Point (i):-

The undisputed facts of this case are that (i) complainant availed loan of Rs.30,000/- from opposite party. (ii) the loan was to be repaid in 20 instalments of Rs.1,788/- each commencing from 13-3-2003 and ending on 07-10-2004. (iii) that complainant committed default of a few instalments. (iv) that the vehicle was repossessed by opposite party.


6. It is the case of complainant that after repossessing the vehicle, a representative of opposite party approached complainant and offered a 'one time settlement' and informed that if complainant paid Rs.3,000/- before 30th of April, 2004 all other overdue charges would be waived. It is his further case that believing this he paid Rs.3,000/- on 19-4-2004. It is also the case of complainant that without releasing the vehicle opposite party continued to recover the instalments by using the post dated cheques.



7. Denying these allegations it is affirmed by opposite party in para 16 and 17 of the affidavit that the vehicle was repossessed by opposite party on 08-10-2004 and that at the time of repossession the outstanding due was Rs.6,495/-.





8. Complainant has not stated the exact date of repossession. But his case is that the vehicle was repossessed prior to the completion of loan period. The rival contention raised on the part of opposite party is that the vehicle was repossessed on 08-10-2004 which is after the date of last instalment. Opposite party has admitted the payment of Rs.3,000/- on 20-4-2004. But the contention that it was paid after repossession as one time settlement is denied. This contention of complainant that Rs.3,000/- was paid subsequent to repossession of the vehicle is inconsistent with his statements in Ext.A8 lawyer notice. In Ext.A8 dated, 16-11-2004 complainant states that when he approached opposite party after repayment period of loan and requested for cancellation of hire purchase endorsement, he was informed by opposite party that due to non-clearance of cheques an amount of Rs.3,000/- more has to be paid to finally settle the accounts. It is also stated in Ext.A8 that even after payment of Rs.3,000/- the vehicle was repossessed forcefully alleging default in EMI. Therefore as per the averments in Ext.A8 the case of complainant is that he had repaid whole loan and only when he approached opposite party requesting for hire purchase cancellation did opposite party demand payment of Rs.3,000/-. This contradicts the pleadings and his affirmation in the affidavit. Therefore we are unable to accept the contention of complainant that the vehicle was repossessed prior to 08-10-2004. We hold the version of opposite party that the vehicle was repossessed on 08-10-2004 as believable and acceptable.



9. Complainant is aggrieved that the repossession was without notice and only for a small amount and therefore illegal. The loan availed by complainant is Rs.30,000/-. As per the details of payment as affirmed in the affidavit complainant has repaid Rs.31,608/- upto 12-10-2004. The date of last instalment as per Ext.A2 chart is 07-10-2004. The payments are not fully regular. There is some default in between the instalments. But complainant has repaid a major portion of the loan within time. Even as per Ext.B1 which is dated, 09-10-2004 the arrears outstanding after including all penalty and overdue charges as on the date of repossession is only Rs.6,495/-. In Ext.B3 it is stated by opposite party that as on 09-10-2004 the total instalment repaid is Rs.30,396/-. It is also shown in Ext.B3 that only two instalments are overdue. It is evident that the vehicle was repossessed for the default of a very small amount and that complainant has repaid major portion of the loan. It is also seen from Ext.A5 that opposite party has encashed a cheque on 12-10-2004 after repossession of the vehicle.



10. Complainant pleads and affirms that the vehicle was repossessed without issuing any notice. Though opposite party contends to have issued a letter to complainant prior to repossession this contention is not supported by any documentary evidence and hence totally unacceptable. It is proved from the materials on record and evidence adduced that opposite party has repossessed the vehicle without any notice. If opposite party had issued notice prior to repossession alerting the complainant about default and arrears if any, complainant could have made arrangements to remit the amount which was a very small amount and he could have avoided loss of the vehicle. The non issuance of notice prior to repossession in this case, definitely in our view, amounts to serious illegality.





11. Opposite party affirms that the vehicle was sold on 01-11-2004 after sufficiently intimating the complainant to pay the balance outstanding and take release of the vehicle. It is submitted on behalf of complainant that the only notice received by him from opposite party is Ext.A7, which is a registered letter dated, 11-10-2004. Complainant swears that he received this letter only on 05-11-2004. It is seen on Ext.A7(b) which is the cover in which Ext.A7 letter was send that this letter was send by registered post only on 02-11-2004. This means the letter intimating the complainant that the vehicle will be sold was send by opposite party on 02-11-2004 after sale of the vehicle on 01-11-2004. The deficiency is obvious. We cannot refrain from stating that this act of opposite party Bank is highly oppressive and painted with fraud and malafideness. Ext.A7 sufficiently proves the case of the complainant that the vehicle was sold without any notice to him. From the above discussions we are able to conclude that the act of opposite party repossessing and selling the vehicle without notice and that too when complainant had repaid a major portion of the loan is gross deficiency in service. We find opposite party deficient in service.




12. Point (ii):-

  1. Complainant prays for the following reliefs;-
      1. (i) to direct opposite party to deliver him a brand new TVS Victor motor cycle
        1. or it's value being Rs.65,000/-.
(ii) to pay Rs.50,000/- as compensation for deficiency.
(iii) to pay Rs.4,000/- as costs.



13. As already discussed, if complainant had been served with a notice prior to repossession the whole mishap of repossession and sale of the vehicle could have been avoided. The complainant herein was not given a chance to make payment and get release of the vehicle because no intimation was served to him prior to sale. It has also to be considered that complainant has repaid more than Rs.30,000/- towards the loan. The vehicle was brand new one purchased on 13-3-2003 and sold on 01-11-2004. Opposite party has not furnished any details of the sale. The consideration received by opposite party in auctioning the vehicle is suppressed by opposite party. When the vehicle was sold to recover such a small amount (less than Rs.10,000/-) then the balance ought to have been paid by opposite party to the complainant after settlement of accounts. We have no hesitation to hold that complainant has to be adequately compensated for the loss of the vehicle. Taking into consideration the depreciation of the vehicle we hold that complainant is entitled to Rs.20,000/- as damages for loss of the vehicle. In the present case opposite party which is a Bank has issued intimation regarding sale of the vehicle after selling the vehicle which we consider has to be viewed seriously. Such practice by a Bank which deals with public money has to be put to a halt. We hold that imposing punitive damages by way of interest @ 6% per annum upon the above amount from the date of complaint till payment will serve to improve the quality of service rendered by opposite party and also put to halt to such malafide actions.




14. In the result we allow this complaint and order opposite party to pay to the complainant Rs.20,000/- (Rupees Twenty thousand only) as damages along with interest @ 6% per annum from the date of complaint till payment together with costs of Rs.1,500/- (Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order.

  1. Dated this 17th day of March, 2009.
«13456789

Comments

  • adminadmin Administrator
    edited September 2009
    ORDER
    By Smt. C.S. Sulekha Beevi, President,
    1. The case of the complainant is that he booked for purchase of a bus chasis from first opposite party by paying an advance of Rs.5,272/- on 16-2-2005. At the time of booking first opposite party had assured to deliver the chasis by the end of February, 2005 or at the latest by the first week of March, 2005. It is stated that first opposite party failed to deliver the chasis within the time assured. The price quoted in the proforma invoice issued to complainant was Rs.6,13,272/-. Complainant obtained loan of Rs.6,00,000/- from second opposite party towards payment of purchase price. The amount was disbursed by second opposite party to first opposite party on 26-3-2005. Though this amount was received first opposite party failed to deliver the chasis as promised.

    Complainant already started body building work. Thereafter second opposite party had realized Rs.16,050/- towards the first instalment on 02-5-2005. Complainant was put in a position to pay instalments even before receiving the chasis. As per advice of officers of second opposite party complainant cancelled the booking and gave a written letter to second opposite party to close the loan. Second opposite party promised to return the signed cheque leaves and documents after closing and settling the account. That second opposite party credited only Rs.18,657/- tot he account of the complainant after closing the loan and has illegally realised Rs.13,448/-. Hence this complaint alleging deficiency in service against both opposite parties claiming Rs.1,20,000/- as compensation, for refund of Rs.13,443/- along with interest and costs.



    2. First opposite party who is the dealer has filed version admitting that complainant had approached opposite party for purchase of bus chasis. It is stated that the approximate value was quoted in proforma invoice which was subject to change for many reasons. It is further submitted that though complainant booked the same on 16-2-2005 there was no assurances made for quick delivery. That the particular model opted by the complainant was a relatively new model and the production of the same had commenced only in April, 2005. Thus opposite party had not given any exact date regarding delivery and opposite party could never give any such date. The allegation that body building work had commenced is denied as false. The contention that the chasis was delivered to another person is also denied. Proper reply was issued to the letter of the complainant. That opposite party is unaware about the dealings with second opposite party. That there were no promises made by first opposite party as alleged in complaint. On 13-01-2005 complainant was given proforma invoice. On 16-02-2005 he booked the vehicle by signing vehicle purchase application. On 26-3-2005 he came again and submitted demand draft and the booking was effect in the name of complainant. The conditions in the vehicle purchase application are binding on the complainant. During June, 2005 the vehicle was ready for delivery. Though complainant was informed to take delivery he wanted cancellation of the booking. Though it was difficult for opposite party to arrange another buyer opposite party managed to sell the same. On 27-6-2005 the amount was returned to second opposite party. That there is no deficiency in service and complaint is to be dismissed.


    3. Second opposite party who is a bank filed version admitting that complainant had availed a vehicle loan for Rs.6,00,000/- by executing an agreement on 23-3-2005. As per the agreement the amount was to be repaid in 42 EMI of Rs.14,050/- each. The loan was disbursed on 23-3-2005. As agreed in the agreement two EMIs of Rs.16,050/- were cleared on 02-5-2005 and 02-6-2005. After a period of 114 day of the disbursal of loan complainant approached opposite party requesting to cancel the loan. As per the written letter of complainant the loan was cancelled. An amount of Rs.18,657/- was refunded to complainant on 16-8-2005 after deducting the interest @ 6.64% for 114 days and an amount of Rs.1,000/- as loan cancellation charges. The other allegations are denied as false. That there is no deficiency in service and complaint may be dismissed.


    4. Evidence consists of the affidavit filed by complainant and Ext.A1 marked for him. Counter affidavit filed by first opposite party and Exts.B1 and B2 marked for first opposite party. Second opposite party filed counter affidavit and Ext.B3 to B6 marked for second opposite party. Either side has not adduced any oral evidence.


    5. Points for consideration:-
        1. (i) Whether opposite parties have committed any deficiency in service.
          (ii) If so, reliefs and costs.
    6. Point (i):-
    1. The main allegation levelled against first opposite party is that the chasis was not delivered within the time assured. Refuting this allegation first opposite party has submitted that the exact date of delivery of chasis was never promised. Apart from the vague affirmation in the affidavit there is no evidence adduced by complainant to substantiate his contention that first opposite party assured to deliver the chasis within end of February, 2005 or at the latest on the 1st week of March, 2005. Opposite party placed reliance on Ext.B1 which is the vehicle purchase application. On the reverse side of ext.Ext.B1 the terms and conditions of sale are printed both in English language and regional language (malayalam). This is signed by the complainant. Complainant has not disputed this document.
        1. “No guarantee attaches to the date of delivery. The company cannot hold themselves responsible for delays arising from causes beyond their control and competence. In any event, delay shall not be admitted as a valid ground for rejection of the chasis/vehicles ordered or claim of interest, compensation etc.....”




    7. Ext.B1 proves the contention of opposite party to be correct. Therefore the allegation of the complainant that first opposite party committed deficiency in service by causing delay in delivery of chasis is untenable. The allegation raised against second opposite party is that the Bank collected Rs.13,447/- in excess illegally. Second opposite party has controverted these allegations by submitting that an amount of Rs.18,657/- was credited to the account of complainant on cancellation of loan by him. The amount of Rs.6,00,000/- was disbursed on 23-3-2005. That interest @ 6.64% for 114 days along with Rs.1,000/- towards loan cancellation charges was realized which was payable by complainant as per terms and conditions of agreement. Ext.B4 is the loan agreement. Complainant is definitely bound by the conditions of this agreement. The loan was disbursed on 23-3-2005. As per the statement of first opposite party the amount was returned to second opposite party on 27-6-2005. Then complainant is liable to pay two EMI during this period. The amount of two EMI would be Rs.32,100/-. Second opposite party has refunded Rs.18,657/- after deducting Rs.13,443/- as interest. We do not see any illegality in the act of opposite party. Complainant has not produced any account statement to show the illegality in the amount realized by second opposite party. The contention of the complainant is not supported by any reliable evidence. Complainant has failed to establish a case in his favour. We do not find any deficiency in service on the part of both opposite parties.


    8. In the result, this complaint fails. We do not make any order as to costs. We however direct that second opposite party is restrained from using the signed cheque leaves handed over at the time of availing the loan.
    1. Dated this 11th day of March, 2009.
  • adminadmin Administrator
    edited September 2009
    ORDER
    By Smt. Padmini Sudheesh, President

    The complainant’s case is as follows:
    The complainant is an account holder of respondent bank, Urakam branch vide A/c No.57011860949. The complainant had taken a housing loan from HDFC bank Cochin and the repayment instalments for the said loan were paid through cheque of respondent bank. The respondent bank agreed to do the payment promptly and correctly. But a cheque No.022630 dated 28/5/06 for Rs.3113/- for the instalment amount payable to HDFC Bank became dishonoured as fund not sufficient even if there was sufficient funds in the account. The HDFC bank informed the complainant that the cheque was dishonoured. The dishonour of cheque for want of sufficient fund is a deficiency in service because of there was sufficient funds in the account. So the complainant was forced to met an additional expense of Rs.300/-. When the matter was discussed with the respondent they admitted the fact that they are mistaken and will not repeat it again and pardon for the mistake. But again on 28/10/06 cheque numbered 022633 for Rs.3113/-was also dishonoured and complainant had to met additional expense of Rs.300/-. So the HDFC bank informed that they will not receive any amount through cheque. The complainant suffered mental agony and financial loss due to the deficiency in service of the respondent. The complainant sent a lawyer notice but no reply and no remedy. Hence this complaint.

    2 The counter filed by respondent is as follows:
    The respondent is unaware of the fact that the cheques issued to HDFC, Cochin branch is for the payment of housing loan. The cheque No.022630 was dishonoured due to insufficient fund in the account. The respondent never made any carelessness or deficiency. The respondent never discussed with this matter to the complainant. The respondent is not aware of the extra expenses met with the complainant and if any the respondent is not liable for that. The complainant has to maintain sufficient amount in her account. The complainant is not having any right to blame the respondent. The complaint is having the defect of non-joinder of necessary parties by not making HDFC Bank as a party. The statements in para 3 is denied. There was insufficient balance at that time also. The respondent bank is working in Ernakulam District and all the transactions are in Ernakulam. So the complaint lacks territorial jurisdiction. Hence dismiss.

    3. Points for consideration are :
    1)Is there any deficiency in service ?
    2) If so reliefs and costs?

    4. The evidence consists of Exhibits P1 to P6 and Exhibit R1.

    5. Points : The complainant had availed a housing loan from the HDFC Bank, Ernakulam. She had repaid the loan instalments through cheques of State Bank of Travancore, Urakam bank where she had an account by No. 57011860949. But cheque No.022630 dated 28/5/06 issued to the HDFC for Rs.3113/- was dishonoured by the Urakam Branch of respondent bank stating insufficiency of funds. But as per Exhibit P6 there was sufficient funds in her account. When she had enquired about it the respondent bank regretted by sending a letter and the letter is marked as Exhibit P2. Again they committed the same mistake by dishonouring the cheque dated 28/10/06 numbered 022635. As per Exhibit P6 there was sufficient balance and the dishonour shows the service deficiency of the Urakam branch of the respondent bank.

    6. But in the version the respondent taken a stand of total denial. They even denied the issuance of Exhibit P2 letter. But all the records before us are speaking against the version of respondent.

    7. The complaint is filed to get refund of Rs.300/- the penal interest debited by her and for compensation. The respondent also denied the loss of Rs.300/-. But as per Exhibit P2, the bank is well aware that in such a situation the complainant will be forced to debit Rs.300/- as penal interest. So the respondent can not escape from the liability. There is deficiency in service on the part of Urakam branch of respondent bank and the bank is liable to remit the amount of Rs.300/- . Since the Urakam Branch is not made a party the complaint is liable to be dismissed. But being a consumer complaint we are not inclined to dismiss on this technical ground. The respondent bank has no objection in this regard and the Exhibit P2 letter is also issued by them and they are ready to compensate.

    8. In the result complaint is allowed and the respondent is directed to pay Rs.300/- (Rupees Three hundred only) to the complainant and Rs.2000-/ (Rupees Two thousand only) as compensation towards the mental agony with Rs.500/- (Rupees Five hundred only) as costs within a month.

    Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 24th day of March 2009.



    ......................
    Padmini Sudheesh

    ......................
    Rajani P.S.

    ......................
    Sasidharan M.S
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT Sri. N.K. Krishnappa, S/o. Sri. Kenchegowda, Major by age, No. 32, 7th Main Road, Sannakki Bayalu, Kamakshipalya, Bangaluru – 560 079. Advocate (M. Shivarama)

    V/s.


    OPPOSITE PARTIES

    1. M/s. Centurion Bank Ltd., No. 102, Raheja Plaza, Bengaluru – 560 025. Reptd. by it’s Branch Manager.

    2. M/s. HDFC Bank, Retail Asset Division Branch, No. 548/D, 1st Floor, Maruthi Mansion, C.M.H. Road, Indiranagar, Bengaluru – 560 020. Reptd. by it’s Branch Manager. Advocate (Suresh)


    O R D E R

    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.50,000/- and issue NOC for cancellation of the hypothecation of the vehicle bearing No. KA-04-ES-4533 and for such other reliefs on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant availed a two wheeler loan from OP.1 of Rs.36,987/- repayable in 24 EMI at the rate of Rs.1,787/- starting from 15.01.2007. The said vehicle was hypothecated in favour of OP.1. Complainant was prompt in making payment of the EMI through ECS facility. With all that for no fault of the complainant, OP imposed cheque bounce charges. Though complainant has not availed any financial assistance from OP.2 he got the communication on 02.12.2008 claiming a balance of Rs.17,155/-. The arbitrary act of OP.2 has caused him both mental agony and financial loss. OP.2 repeatedly harassed him towards the recovery of the amount in due. There is no privity of contract between the complainant and OP.2. OP.1 and 2 in collusion with each other have made a false and frivolous demand. The repeated requests and demands made by the complainant to issue NOC by receiving the EMI went in futile. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.



    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP.2 it has taken over the entire rights, liabilities of OP.1 with effect from 23.05.2008. Though complainant availed the two wheeler loan undertaking to repay the same in an EMI, but failed to keep up his promise, atleast 6 number of EMI ECS cheques were dishonored. As per the terms and conditions of the loan OP have got a right to impose cheque bounce charges, late payment charges, etc. That act of the OP cannot be termed as deficiency in service. As per the accounts maintained by the OP’s by 19.02.2009, complainant is still in due of Rs.17,719/-. When they demanded the complainant to pay the outstanding dues by addressing several letters, complainant has come up with this false and frivolous complaint. When complainant himself is in due of certain amount, he cannot insist for issuance of NOC or waiving of hypothecation. The approach of the complainant is not fair and honest. There is no deficiency in service on the part of the OP’s. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.


    3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.


    4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the reliefs now claimed? Point No. 3 :- To what Order?



    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order.



    R E A S O N S



    6. At the outset it is not at dispute that the complainant availed a two wheeler loan of Rs.36,987/- from OP.1 to purchase his two wheeler bearing No. KA-04-ES-4533. Complainant agreed to repay the same in an 24 EMI of Rs.1,787/- starting from 15.01.2007. The said vehicle was hypothecated in favour of the OP Bank. Now the grievance of the complainant is that though he is prompt in making payment of the EMI OP.1 imposed the cheque bounce charges and late payment charges, which is unjust and improper. Further it is contended by the complainant that though there is no privity of contract between himself and OP.2. OP.2 has demanded the balance of Rs.17,155/- by December 2008. He felt collusion between OP.1 and 2. The said demand according to him is illegal, unjust and improper. Hence he felt the deficiency in service.



    7. As against this it is specifically contended by the OP that OP.2 has taken over the entire rights, liabilities, port polios, etc., of OP.1 with effect from 23.05.2008. The document to that effect is produced. So we do not find force in the contention of the complainant that there is no privitiy of contract between himself and OP.2. According to OP’s complainant is expected to pay the EMI through ECS mandate out of 18 EMI paid 6 EMI were dishonoured. Complainant was expected to pay 24 EMI, but he defaulted. The documents to that effect are produced. As per the foreclosure statement dated 19.02.2009, it appears complainant is still in due of Rs.17,719/-. Of course nowhere complainant has stated that he has paid all the 24 EMI as undertaken. Under such circumstances the approach of the complainant does not appears to be fair and honest.


    8. As per the terms of the loan agreement if there is a default on the part of the complainant in repayment of the loan, in our view OP has got a right to impose late payment charges including cheque bounce charges. There is a proof that 6 number of cheques were dishonoured. Under such circumstances when complainant is still in due of Rs.10,722/- towards instalment and Rs.4,597/- late payment charges, Rs.2,400/- cheque bounce charges, the claim made by the OP of Rs.17,719/- appears to be genuine. When complainant is the defaulter, he cannot insist the OP to issue him NOC, that too when he failed to pay the entire loan with interest and other charges.


    9. Having considered the facts and circumstances of the case and on the plain reading of the complaint, the allegations made in the complaint did not spell out a case of hiring of service and suffering from deficiency, rather it disclosed a case relating to settlement of accounts and for the balance due on the basis of the accounts. Under such circumstances in our view complainant did not fall within the ambit of sec-2(1) (c) (e) of the C.P. Act. If the complainant is so advised he can file an appropriate Civil Suit for the proper remedy to redress his grievance. So far as the facts on hand are concerned, when the complainant is the defaulter, he cannot allege the deficiency in service against the OP. The complaint appears to be devoid of merits. Hence he is not entitled for the relief claimed. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following:


    O R D E R

    The complaint is dismissed. In view of the nature of dispute no order as to costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 26th day of March 2009.)
  • adminadmin Administrator
    edited September 2009
    COMPLAINANT Pushpa MD/o Muthuraj MNo.17, 3rd Cross,2nd Main, Valmlikinagar,Mysore Road,Bangalore – 560 026.Advocate – Sri.C.V.Dhruvakumar

    V/s.

    OPPOSITE PARTY

    The Manager,HDFC BANK Limited,Thippasandra Branch,Bangalore.Advocate – Sri.Suresh V.


    O R D E R


    This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to release her salary amount through her account and for such other relief’s on an allegations of deficiency in service. The brief averments, as could be seen from the contents of the complaint, are as under: Complainant had the salary account and savings bank account at OP. Complainant’s employer disburses the salary through OP Bank to her. For the month of December 2008 she was not allowed to withdraw the salary amount, which has been credited to her account by her employer by the OP. On enquiry she came to know that there is no balance of amount at her account as she is in due of certain amount to the OP Bank. The arbitrary act of the OP has caused her both mental agony and financial loss. She issued the notice to OP on 05.01.2009 to compensate her but it went in futile. Balance shown in her account is contradictory and against to the records maintained by her. Due to the negligence of the OP, complainant is unable to meet out her day to day expenses as she is mainly depending upon her monthly salary to maintain her family.


    Thus she felt deficiency in service. Under the circumstances she is advised to file this complaint and sought for the reliefs accordingly.



    2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant had availed the credit card facility from them. She become the chronic defaulter in repayment of the utilized amount under the credit card. The repeated requests and demands made by the OP went in futile. As per the banking norms they have got the “General Lien” on the savings account which complainant had at OP Bank. So under the General Lien they have adjusted the said amount to the out standing dues with respect to the transaction done under the credit card and they blocked the withdrawal of the salary to an extent of Rs.7,775/- on 02.01.2009. The lien and right to set-off the terms and conditions are well within the knowledge of the complainant. She herself violated and floated the said terms and conditions. When the complainant is the defaulter she can’t allege the deficiency in service against the OP. Though complainant is aware of the credit card transaction she has suppressed to mention the same in her complaint. Approach of the complainant is not fair and honest. Complaint is devoid of merits. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.



    3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence. Then the arguments were heard.



    4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under: Point No. 1 :- Whether the complainant has Proved the deficiency in service on the part of the OP? Point No. 2 :- If so, whether the complainant is entitled for the relief’s now claimed? Point No. 3 :- To what Order?



    5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: Point No.1:- In Negative Point No.2:- Negative Point No.3:- As per final Order.



    R E A S O N S



    6. At the outset it is not at dispute that the complainant has got the salary account and savings account at OP Bank. It is also not at dispute that her employer disburses the salary through OP Bank. It is the grievance of the complainant that when she intended to draw the salary for the month of December 2008 it was blocked by the OP and the balance was shown as ‘zero’. Though she is entitled to draw Rs.7,775/- for the said month. Her repeated requests and demands made to OP went in futile. She even got issued notice on 05.01.2009. Again there was no response. The balance shown in the ATM counter and actual account statement are self contradictory.




    7. As against this it is specifically contended by the OP that the complainant is the credit card holder of OP bank. Unfortunately complainant has not mentioned this fact in her complaint nor she denied it after the version being filed. According to OP she is the chronic defaulter in repayment of the utilized amount under the credit card facility. This fact is also not denied or disputed by the complainant. So whether complainant herself is a defaulter she can’t allege the deficiency in service against the OP. It is further contended by the OP that the complainant having understood the terms and conditions of the credit card facility and OP’s legal right to exercise general lien on any of the deposits including the savings account amount of the complainant she agreed to avail the credit card facility.



    8. When complainant became the defaulter OP invoked its rights to lien and right to set-off. We find the action initiated by the OP is well within the purview of the terms and conditions of the general lien and the contract entered into between complainant and the OP. Hence OP blocked Rs.7,775/-. That act of the OP can’t be termed as deficiency in service.



    9. In view of the discussions made by us in the above said paras approach of the complainant does not appear to be as fair and honest. When complainant has readily agreed for the general lien right to set-off now she can’t agitate the present complaint alleging deficiency in service. When she become the defaulter OP has got a right to proceed against her in terms of the credit card agreement. Under such circumstances we don’t find substance in the allegations of the complainant. There is no proof of deficiency in service. Hence complainant is not entitled for the relief claimed. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following:



    O R D E R The complaint is dismissed. In view of the nature of dispute no order as to costs.
  • adminadmin Administrator
    edited September 2009

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

    No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009

    consumer case(CC) No. CC/09/37

    Manju .M
    ...........Appellant(s)
    Vs.

    HDFC Bank Limited
    ...........Respondent(s)

    BEFORE:
    1. Sri D.Krishnappa
    2. Sri. Shivakumar.J.


    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):




    ORDER

    The complainant and opposite party have filed a joint memo, which is also signed by their respective counsel, under which the complainant has agreed to pay Rs.18,000/- as against Rs.24,000/- due by him to the opposite party in the settlement arrived between them and the opposite party on receipt of Rs.18,000/- towards full satisfaction of their claim has agreed to release the seized vehicle in favour of the complainant within 15 days from the date of receipt of Rs.18,000/-. With this, both the parties have submitted for disposal of the complaint. Hence, in view of the joint memo filed, we pass the following order:- ORDER 1. The complainant shall pay Rs.18,000/- to the opposite party towards full satisfaction of the claim of the opposite parties and the opposite party on receipt of the said amount shall release the vehicle of the complainant within 15 days from that date and shall also deliver the relevant documents to the complainant and issue a NOC. 2. Both parties bear their own costs.

  • adminadmin Administrator
    edited September 2009
    Consumer Case No. 17 of 2007


    Dilip Kumar Sharma w/o Ram Anandi Sharma
    Staff Colony Kathara Coaliery, Qr.No.-1B/100.
    Dist.- Bokaro.
    Versus
    1.Branch Manager, HDFC Bank Ltd. Bistupur Branch, Jamshedpur.
    2.Branch Manager, Shrachi Securities Ltd.
    JB-19, City Centre, Sector-IV, B.S.City.
    Before-
    S.M.Alam, President
    Vijay Bahadur Singh, Member
    Shabnam Praveen, Member

    Date of Judgment-: 15 April 2009
    Date of case filing-: 28 March, 2007.

    -: Judgment:-
    The complainant has filed this consumer case against the opposite parties and sought relief against them to return the brick loaded Truck of the complainant with 12% interest on the amount which was paid by the complainant, besides Rs. 300000/- as compensation and Rs. 10000/- cost of litigation.




    2 Brief fact of the case is that the complainant had purchased a Truck on 05.12.2005 on the basis of loan through HDFC Bank and the total price of Truck was Rs. 1011000/- out of total price of the Vehicle the complainant paid Rs. 220000/- to the opposite party No.2 out of which Rs. 50000/- was insured of the said vehicle. The concession of Rs. 35000/- was on the purchased of said Truck as to be given to the complainant by opposite party No.2, after the purchased of said Truck from authorized dealer of TATA. The opposite party No.1 had financed a sum of Rs. 952000/- including 4.5% yearly interest and 2 Years insurance amount. The complainant has to paid the said Rs. 952000/- in 35 installments which begun from Jan.2006 till Nov.2008. The opposite party handed over the said Truck to the complainant on 05.12.2005 and obtained 2 Post Dated Cheques from the complainant vide cheques No. 444157 and 444158 of SBI Kathara. The registration of the said Truck was Jh-09E-9457. The complainant obtained all the relevant papers of the said vehicle. The complainant started earning by playing said Truck, and used to pay the installments to the opposite party No.2 against which, the opposite party No.2 granted receipts. However till Oct.2006 the amount paid to the opposite party No.2 was less about 40000-45000/- then the complainant wrote a letter to the opposite party No.2 and requested to adjust Rs. 35000/- as concession which was granted to the complainant at the time of purchased of the said vehicle. But the opposite party No.2 neither paid any amount nor paid the initial part of the installment against the payment. In the Month of December, 2006 complainant sent a Demand Draft of Rs. 20000/- to the opposite party No.1 and requested to adjust his Rs. 35000/- concession amount against the less amount paid by him. But the opposite party did not take pain to reply the said letter of the complainant except assurance. On 02.02.2007 opposite party seized the Truck of the complainant and inventory was handed over to the Driver of the said Truck. The complainant immediately contacted the opposite party No.2 and told him about the seizer of his Truck, upon which the opposite party No.2 assured him to handover full details. On 12.02.2007 complainant went to the office of the opposite party No.1 and discussed the matter with the opposite party No.1 and informed him that his Truck was seized on 02.02.2007, the opposite party No.1 told him that around Rs. 100000/- is still dues with the complainant which required to be paid and thereafter, the details will be given to him. The complainant told the opposite party no.1 that at the present time he has Rs. 40000/- as amount and he is ready to pay Rs. 40000/- and the rest amount, thereafter, but the opposite party No.1was not ready and advised the complainant to pay the entire amount an then take away his seized truck. On 17.02.2007 the complainant went to the office of the opposite party no.1 with the aforesaid amount where he was told that the seized truck has been sold and directed him to contact Kolkata office. The complainant, thereafter, contacted Kolkata office where he was told to contact Mumbai office. The complainant contacted the Mumbai office where he got information on account of none payment of installment, the said Truck was seized and sold. The Mumbai office also told him that till 10.02.2007 was allowed to the complainant for the said payment which the complainant failed to do so. Thereafter, the complainant went to the opposite parties and talk to them but no remedy was short out for the release of said Truck and hence the complainant filed this present Consumer Complaint under Consumer Protection Act for his redressal.



    3 Upon issuance of notices both opposite parties appeared and filed their common written statement, stating therein that the present Consumer Complaint is not maintainable at all, as such it is fit to be dismissed. The complainant is not a Consumer define under section 2(1) (d) of C.P. Act, hence the present complainant is not entitled to lodged any complaint before this Learned Forum under section 12 of Act. The definition of Consumer as per amended provision of the CP Act 1986 excluded its purview, the person who avails service for commercial purposes. As such no person who availed of and or hired any service for commercial purposes can approach consumer forum for any alleged deficiency of service or otherwise at all. On a perusal of sale certificate, Motor Vehicle Registration Certificate (Owner Book) Fitness certificate, Insurance certificate, National permit filed by the complainant himself in the case record it is evident that his vehicle is HCV Truck and is being used in transport business running by the Driver namely Rajendra of the complainant since long. Therefore, complainant do not comes under the definition of the “Consumer “hence the present complaint case is fit to be dismissed at once on this score alone. The relation between complainant and opposite parties is of “Borrower and Creditor” not as service provider, as such the complainant is not a Consumer as define under C.P. Act. The complainant having agreed to the terms and conditions of the agreement is legally stopped from raising any dispute before this Learned Forum. Therefore, the present complaint is not maintainable at all and is fit to be dismissed with costs. The complainant became defaulter in making payment of outstanding dues in terms and conditions of letter of opposite parties. Thus lastly the opposite party sold the vehicle and after adjustment of sale precedes an amount of Rs. 392670/- is still dues outstanding payable by the complainant to the opposite party. Therefore, the complainant could not allowed to take benefit of his own wrong for unjust gain and the present case is fit to be dismissed. The further case of the opposite party is that the complainant has entered “hire purchase agreement” dated 05.12.2005 with the opposite party No.1 for a heavy commercial vehicle which got registration No. Jh-09-E-9457 and the total loan paid by the opposite party No.1 to the complainant is Rs/ 808000/- which was to be repaid with interest by the complainant in 35 EMI @ of Rs. 27200/- each which comes to a total contract value of Rs. 952000/-. The said installment has been commenced of and from 05.01.2006 payable by the complainant but the complainant defaulter in making payment of vehicle in spite of repeated representation; hence the vehicle was repossessed by the opposite party on 02.02.2007 and sold the same in terms of the said agreement. Arbitration proceeding was initiated in terms and condition of the agreement of recover balance outstanding amount of Rs. 392670/- after adjustment of sale proceeds. But the complainant in stead of paying balance amount has filed this present Consumer Case to escape from his liability. The complainant have to appear and filed his claim if any in the said arbitration proceeding where in award was passed on 02.01.2008 by the arbitrator Tribunal and copy of which was sent under registered post on 14.01.2008 to the complainant with a copy to the granter of the complainant. The award is pending of all the parties is concerned. Thus in view of facts stated above the complainant is not entitled to any relief as prayed and the case is fit to be dismissed.




    4 Heard both the parties and perused the case records and documents filed by them. It is observed that the vehicle in question was seized by the opposite party on account of the complainant being defaulter in making the payment towards the loan. The seizer of the vehicle was done as per the terms and conditions of the Agreement for vehicle loan and guarantee between the parties. It is also found that the vehicle was a commercial vehicle as per the certificate cum policy schedule issued by Bajaj Allianz filed as annexure 5 by the complainant. In view of the above the opposite party can not be held negligent and deficient in service towards the complainant and as such we do not hold the opposite party liable to pay any relief to the complainant.



    5 Under the facts and circumstances of the case no merit is found in the complaint case and the same is dismissed accordingly hereby.
  • adminadmin Administrator
    edited September 2009
    CC. No. 321 of 27-11-2008
    Decided on : 23-04-2009












    Smt. Baljeet Kaur D/o Sh. Gurnam Singh, R/o Lal Singh Basti, Preet Nagar, Street No. 4, House No. 27936, Bathinda. ... Complainant
    Versus


    The Branch Manager, HDFC Bank, G.T. Road, Bathinda.
    ... Opposite party


    Complaint under Section 12 of the Consumer Protection
    Act, 1986.


    QUORUM


    Sh. Pritam Singh Dhanoa, President
    Dr.Phulinder Preet, Member
    Sh. Amarjeet Paul, Member

    Present : Sh. R.D. Goyal, Advocate, counsel for the complainant
    Sh. Sanjay Goyal, Advocate, counsel for opposite party.

    O R D E R


    SH. PRITAM SINGH DHANOA, PRESIDENT
    1. This complaint has been filed by Smt. Baljeet Kaur, daughter of Gurnam Singh, a resident of Preet Nagar, Bathinda, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against Branch Manager, HDFC Bank, G T Road, Bathinda, for giving him direction to pay her compensation in the sum of Rs. 40,000/- and costs of filing of instant complaint.
    2. Briefly stated the case of the complainant is that she secured loan from Bank of Punjab for purchase of a motor-cycle which was disbursed to her through loan Account No. 2030002116561. The said bank has subsequently merged with HDFC bank. The complainant paid the entire amount of loan including interest upto 17-06-2008. She was intimated by the office of the opposite party that nothing is due towards her. Neither No Due Certificate has been issued nor the entry regarding hypothecation in Registration Certificate has been cancelled despite her repeated visits and service of legal notice. The opposite party kept on putting off the matter on one pretext or the other because of which, complainant has been subjected to mental and physical harassment. The opposite party being successor of Erstwhile Bank of Punjab/Syndicate Bank, is bound to issue No Due Certificate sought by the complainant and to cancel the entry in the Registration Certificate of her motor-cycle regarding hypothecation thereof made at the time of advancement of loan. As they are failed to so, hence this complaint.
    3. On being put to notice, opposite party filed written version resisting the complaint by taking preliminary objections; that it is not maintainable; that there is no deficiency in service on the part of the opposite party; that complainant has no locus standi and cause of action to file the complaint; that he is not consumer within the purview of definition given in the Act; this Forum has no jurisdiction to entertain and try the complaint; that intricate questions of law and fact are involved in the case which cannot be adjudicated in summary manner by this Forum; that complainant has concealed material facts from this Forum, as such he is not entitled to the reliefs prayed for and this Forum has no jurisdiction because relationship between the parties is of borrower and lender. On merits, it is admitted that complainant secured loan for purchase of motor-cycle through Bank of Punjab subsequently merged with the opposite party. It is submitted that the complainant was to return the amount of loan secured, in 24 installments and at the time of advancement, she delivered 24 post dated cheques out of which 11 were dishonoured, as such, the complainant is liable to pay cheque bouncing charges and penal interest on account of delay in deposit of instalment. She has also not paid one instalment of loan and an amount of Rs. 5209/- was outstanding towards her upto 18-12-2008. It is further submitted that vide receipt dated 17-06-2008, the complainant deposited a sum of Rs. 4700/- in cash, but the agent of the opposite party mentioned words “Foreclosure', which is clerical mistake on his part because he has so written without checking the record. However, it is submitted that the opposite party is willing to issue No Due Certificate and cancel the entry in the Registration Certificate of the motor-cycle of the complainant regarding hypothecation, provided she deposits the amount due towards her. Rest of the averments made in the complainant have been denied and prayer has been made for dismissal of the same with special costs.
    4. On being called upon by this Forum to do so, the learned counsel for the complainant furnished her affidavit Ex. C-1 and copies of receipts Ex. C-2 to Ex. C-7. He also tendered copy of legal notice and postal receipt Ex. C-8 & Ex. C-9, before he closed her evidence. On the other hand, learned counsel for the opposite party tendered in evidence affidavit of Sh. Aditya Vikram Singh, Manager of the opposite party Ex. R-1 and copy of the statement of account Ex. R-2, before he closed his evidence.
    5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully,
      with their kind assistance.
    6. Learned counsel for the complainant Sh. R D Goyal, Advocate, has submitted, at the outset, that written statement has not been duly verified by any person and agent of the opposite party at the time of deposit of Rs. 4700/- by the complainant, has written words “Foreclosure” on the receipt issued by him, as such, opposite party is estopped from claiming that there is any clerical error on his part. Learned counsel has further argued that opposite party has not tendered the affidavit of the agent who issued receipt, as such, material witness has been withheld by her. Learned counsel submitted that wrong Account Number has been mentioned on copy of statement of Account tendered in evidence by the opposite party and the amount deposited by the complainant through receipt, is not incorporated in the statement of Account. Learned counsel has argued that loan has been sanctioned and disbursed to the complainant on 11-07-2006, entry in the copy of statement of Account, furnished on record by the opposite party, has been made w.e.f. 18-12-2008, as such, reliance cannot be placed on the same. Learned counsel argued that raising of demand of entire amount of loan from the complainant by the opposite party, amounts to deficiency in service on his part for which she is liable to seek compensation alongwith costs and No Due Certificate. In support of his contentions, learned counsel has placed reliance on 2008(1) CPC 461 Hoshiarpur Improvement Trust Vs. major Amrit Lal Saini, wherein request of complainant for transfer of plot was accepted by authorities concerned and he gave an understanding to withdraw complaint on account of which it was held that subsequently he cannot be allowed to take plea that he would continue with the complaint on the principle of law of estoppel. Learned counsel has also relied upon 2008(2) CPC 583 Centurian Bank of Punjab Vs. Som Chand Katia, wherein it was held that issuance of No Objection Certificate after delay of 27 days without deposit of amount due, proves that there was no amount payable by the complainant who suffered loss due to negligent act on the part of the bank and order passed by Consumer Forum was upheld.
    7. On th other hand, learned counsel for the opposite party Sh. Sanjay Goyal, Advocate, has submitted that the amount deposited by the complainant has been accounted for, in the statement of Account and she has committed default in repayment of 11 installments and on the date of preparation of statement, an amount of Rs. 5209/- was outstanding towards her on account of cheque bouncing charges and penal interest for delay in deposit of instalments and one instalment of loan, as such, no deficiency in service can be attributed to the opposite party merely because his agent has written words “Fore closure' on receipt issued in the name of the complainant without checking the record or there are some typographical errors in the copy of the statement of Account. Learned counsel argued that instant complaint being abuse of process of court, is liable to be dismissed with compensatory costs.
    8. Admittedly complainant secured loan for purchase of a motor-cycle from Bank of Punjab,which was disbursed to her through loan Account No. 2030002116561. It is not disputed that the said bank has merged with HDFC Bank and that the complainant had deposited 24 post dated cheques for repayment of instalments of loan alongwith interest at the time of securing loan. The plea of the complainant is that after deposit of Rs. 4700/- vide receipt dated 17-06-2008, no amount remained outstanding towards her whereas the plea of the opposite party is that she committed default in repayment of 11 installments of loan on account which she is liable to pay penal interest and charges on account of dishonour of cheques by her bankers in addition to one instalment of loan. As per admitted facts, receipt Ex. C-7 has been issued by the agent of the opposite party bank after deposit of Rs. 4700/-. The column meant for details of payment bears remarks 'Fore closure'. The plea of the opposite party that his agent has written these words without checking the record, is not sustainable because no attempt has been made to examine the said material witness by the opposite party although he was in a position to throw light on the controversy in the complaint. Since material witness who is agent of opposite party has been withheld by the opposite party, therefore, adverse inference has to be drawn on that score against the opposite party and the opposite party and he are bound by his act and conduct. In order to prove his plea about outstanding amount of Rs.5209.66 towards the complainant, the opposite party has produced on record, copy of statement of Account of her loan account Ex. R-2. The perusal of the said document goes to show that it pertains to loan Account No. 90641770. It is not the case of the opposite party that it was number of loan Account of the complainant issued by earstwhile Bank of Punjab. In the copy of the statement of Account, loan has been shown to have been advanced to the complainant in the sum of Rs. 24,100/- on 11-07-2006 but it pertains to the period 18-12-2000 to 18-12-2008, as such, much reliance cannot be placed on this document to deny the reliefs claimed by the complainant by accepting the plea of the opposite party that No Due Certificate has not been issued to her because of non-payment of any amount by her on account of penal interest, charges on account of dishonour of 11 cheques and payment of one instalment of loan. As evident from copy of statement of Account, Ex. R-2, complainant has been depositing instalments in the sum of Rs. 1600/- Vide receipt Ex. C-7, she has deposited a sum of Rs. 4700/-. Had the complainant made payment of 2 installments, then she was to deposit a sum of Rs. 3200/- and in case of deposit of amount of three installments, she was to deposit a sum of Rs. 4800/- and not Rs. 4700/-. This difference could have been explained by the person who issued receipt on behalf of the opposite party but no effort has been made to examine him with or without assistance of this Forum. The opposite party have not served any notice upon the complainant prior to issuance of receipt Ex. C-7 asking her to deposit any amount on account of penal interest, charges on account of dishonour of cheques or amount due on account of any instalment. In view of above said facts, onus is shifted upon the opposite party to prove that some amount is still outstanding towards the complainant but they have failed to produce even correct copy of statement of her loan Account.
    9. After balancing the probabilities of evidence adduced on record by the parties, we have come to the conclusion that non-issuance of “No Due Certificate” and refusal to delete entry from Registration Certificate of her motor-cycle about hypothecation despite refund of amount of loan on the part of the opposite party, amounts to deficiency in service due to which she has been subjected to mental and physical harassment and has to incur avoidable expenses for filing of instant complaint.
    10. For the aforesaid reasons, we accept the complaint and direct the opposite party to issue “No Due Certificate” and to delete entry from Registration Certificate of her Motor-cycle made about hypothecation thereof. He is further directed to pay her a sum of Rs. 2,000/- as compensation for mental and physical harassment and a sum of Rs. 1,000/- on account of costs of the complaint, within a period of two months from the date of receipt of copy of this order. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject.
  • adminadmin Administrator
    edited September 2009
    C.C.No.146/2007
    Between:

    Manda Lakshmana Swamy, S/o Kanakayya, 30 years,
    Sivakodu, Razole Mandal, E G Dist.
    ..Complainant.
    A N D
    1.The Branch Manager, H D F C Bank, Danavaipeta, Rajahmundry.

    2. Additional Registering Authority, Road Transport
    Authority, Rajahmundry.
    Opposite parties.

    This case is coming on 20.3.2009 .for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Smt D Vani Ramesh, Advocate for the complainant and the opposite parties 1remained exparte and the 2nd opposite party appeared in person and having stood over for consideration till this day, this Forum has pronounced the following.
    O R D E R
    (By Smt.H V Ramana, Member)
    This is a complaint filed under section.12 of the Consumer Protection Act, 1986 by the complainant to direct the opposite parties to pay the compensation of Rs.50,000/- for mental agony and Rs.2,000/- from each party towards the costs of the complaint.



    2. The case of the complainant as set out in the complaint in brief is that, the complainant purchased T V S Star City motor cycle from M/s Geetha Krishna TVS show room at Jagannapeta in the year 2006. The said firm arranged loan facility through the 1st opposite party. The said Geetha Krishna TVS show room was closed its business activity. The 1st opposite party disbursed the loan under agreement No.2465509. M/s Geetha Krishna TVS show room people handed over the C book of the vehicle after two months of its purchase. The said C Book was issued by the 2nd opposite party and the same was mentioned that finance was obtained from Ashok Leyland Finance Ltd. When the complainant questioned the opposite parties about the wrong mentioning of the finance company, the 2nd opposite party was informed by the Geetha Krishna TVS show room that the opposite party No.1 with whom the finance was given is having a sister concern of the Ashok Leyland finance ltd. Believing the above said representation the complainant paid the entire loan amount to the 1st opposite party who was also issued loan closer letter Dt.24.8.2007. When the complainant requested the opposite party No.2 for noting the same, they informed that the complainant should get a letter from the Ashok Leyland finance Ltd to the effect that there is no finance on the vehicle. When the complainant approached M/s Ashok Leyland finance Ltd, they informed that when there is no finance in the vehicle from their company they would not given such type of letter to anybody. The opposite party noted the wrong name of the finance company and they should rectify the same. When the complainant approached the 2nd opposite party unless a letter is there from Ashok Leyland they would not issued fresh C book after deleting the finance company’s name. The complainant approached number of times to the opposite parties and got issued a legal notice on 9.10.2007, but the 2nd opposite party failed to alter the finance companies name and issued the new C book. Hence, the complaint.



    3. The 1st opposite party filed remained exparte. The 2nd opposite party filed its written version denying all the material allegations made by the complainant. The 2nd opposite party submits that the vehicle No.AP05 AQ-4300 registered in the name of Sri M Lakshmana Swamy, S/o Kanakayya, Sivakodu, Razole Mandal, E G Dist with effect from 26.10.2006 and also hire purchase agreement noted infavour of M/s Ashok Leyland Finance Ltd as duly stamped and authorized signatory affixed in the form-20. and also finance entry noted in the temporary registration AP05 BH t/r 1383 and in Form.21 sale certificate issued by Sri Gokul Motors, Rajahmundry. This opposite party noted the finance endorsement in the RC of AP 05 AQ 4300 as M/s Ashok Leyland Finance ltd, Rajahmundry and there is no wrong entry by the 2nd opposite party. When the complainant approached this opposite party, we politely advised him to submit the form.35 in duplicate duly signed by M/s Ashok Leyland finance for Hire purchase termination. There is no deficiency in service on his part and the complainant is not entitled for any relief and the same may be dismissed with exemplary costs.



    4. Exs.A.1 to A.4 has been marked on behalf of the complainant and Exs.B.1 to B.11 on behalf of the opposite parties and no oral evidence has been adduced on either side.




    5. Heard both sides. The 2nd opposite party filed written arguments.



    6.The points that arise for consideration are:

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

    2) Whether the complainant is entitled for any relief, If so, to what
    relief ?

    7.POINT NO.1: The complainant contended that the 1st opposite party failed to issue loan clearance letter and other relevant papers to the 2nd opposite party in respect of loan transaction of the complainant. The complainant further contended that the 2nd opposite party failed to delete the finance noting in the C book and issue the free C book to him for which the complainant got issued a legal notice to the 1st opposite party and the same has been marked under Ex.A.3. The 1st opposite party received the same vide Ex.A.2. The 1st opposite party gave a closer letter and it has been marked under Ex.A.2 and the acknowledgment has been marked under Ex.A.1.
    The 2nd opposite party contended that the complainant registered the vehicle No.AP05 AQ 4300 registered in the name of M Lakshmana Swamy, S/o Kanakayya, Sivakodu, Razole Mandal, for which he filed Form.24 and it has been marked under EX.B.1. The 2nd opposite party also filed Form.20 application for registration of motorcycle by the complainant and the same is marked under Ex.B.2 and also filed challan receipt in the name of the complainant and it has been marked under Ex.B.3. They also filed Temporary registration certificate under Ex.B.4 the sale certificate and the invoice in duplicate are marked under Ex.B.5, B.6 and B.7. The life tax receipt is marked under Ex.B.8. The T V S Motor Company issued Form.22 and it has been marked under Ex.B.9. The Copy of the Motor insurance cover note has been marked under ExB.10 and Ex.B.11 is the voter identity card of Kanakam Manda, S/o Lakshman Swamy.
    After perusing the material on record it is noted that Ex.A.2 filed by the complainant is in the name of Manda Kanakayya.; This Ex.A.2 issued by the 1st opposite party in the name of Manda Kanakayya. Manda Kanakayya is not the complainant and also not the party to the proceedings. As per Ex.B.11 Manda Kanakayya is the son of Lakshmana Swamy and these documents are no way related to this case. The complainant got issued Ex.A.3 to the 1st opposite party on 9.10.2007. The complainant pleaded that he purchased the vehicle with one Geetha Kishna T V S show room at Jaggannapeta, to that extent he has not filed any proof of document before this Forum. He also stated that the above said show room people handed over C book for his vehicle, which was issued by the 2nd opposite party. The said C book was also not filed before this Forum. As per the documents filed by the 2nd opposite party it is clearly showing that the complainant purchased his vehicle from Gokul Motors, Aryapuram, Rajahmundry and the said vehicle was Hypothecated with Ashok Leyland Finance Ltd under Exs.B.5 to B.7. Even in Exs.B.1, B.2 and B.4 also reveals that the complainant availed loan from the Ashok Leyland Finance Ltd, but not from the 1st opposite party. As per the 2nd opposite party the complainant availed loan from the M/s Ashok Leyland Finance Ltd Rajahmundry and they rightly advised the complainant to submit the Hire purchase termination letter issued by M/s Ashok Leyland Finance.
    Therefore, as per the discussion held supra; we opine that there is no deficiency in service on the part of the opposite parties and the complainant filed this vexatious case for a wrongful gain.



    8. POINT NO.2: In the result, the complaint of the complainant is dismissed. In the circumstances of the case we direct to pay Rs.500/- (Rupees five hundred only) exemplary costs by the complainant to the 2nd opposite party since he filed frivolous and baseless complaint against the opposite parties.
  • SidhantSidhant Moderator
    edited September 2009
    Complainant is a customer of credit card under opposite parties bearing credit card No.4346771005757456. Complainant has so far made transactions to the tune of Rs.10,000/- using the above card. Opposite parties used to send regular statements showing exorbitant amount as due. Complainant approached the 1st opposite party bank on 28/05/2007 in order to cancel the credit card facility. 1st opposite party directed the complainant to contact its Coimbatore Branch on 01/06/2007 who inturn directed the complainant to come after 05/06/07 for one time settlement and the amount payable was fixed as Rs.12,800/-. However the concerned officer on 05/06/2007 agreed for the closure of the account only for

    an amount of Rs.13,000/- as one time settlement. Complainant was prepared to issue

    cheque for the said amount. But the officer did not accept the cheque or cash. Finally complainant remitted the amount of Rs.12,000/- as directed by the 1st opposite party as one time settlement in the bank on 13/08/2007. According to the complainant, despite demand for closure of credit card facility by the complainant, opposite parties have not done the same and instead claimed huge amount as dues. A lawyer notice dt.22/10/07 was issued on behalf of the complainant to the opposite parties for which opposite parties issued no reply. The acts of opposite parties amount to clear deficiency of service on their part and hence the complaint.



    2. Opposite parties filed version contending the following. Opposite parties admit the fact that the complainant is the customer of opposite parties. Opposite parties were sending statements showing correct amounts due from the complainant in respect of the above credit card issued to him. The averment that the complainant finally approached the first opposite party bank on 28/05/2007 in order to cancel the credit card facility and the first opposite party directed the complainant to contact the Coimbatore Branch is incorrect. The complainant is not at all entitled for an order to the effect that the credit card A/c No.4346771005757456 with the opposite parties is fully and finally settled and the Account stands closed. The complainant has been regularly using his credit card for cash withdrawals and purchases. The complainant has withdrawn Rs.9,800/- till date and made purchases of Rs.7,948/- till date.

    The complainant is liable to pay Rs.1,671.36 towards cash advance fees, Rs.551/- towards Membership fees, Rs.3,759.30 towards financial charges on case withdrawal, Rs.9,269.01 towards financial charges on retail purchases, Rs.11,254.49 towards late fees, Rs.4,806.67 towards over limit fees, Rs.1,322.40 towards auto pay return charges, Rs.478.59 towards service tax and Rs.14.33 towards education cess. Every time the complainant withdraws amounts/makes purchases he has the option to pay entire amount within a specified date or pay 5% of the amount due as installment. In the later case when installment is chosen the complainant is liable to pay interest/finance charges. Since the present complainant did not pay the amounts in time the dues accumulated resulting in the present balance of Rs.15,136/- instead of paying the balance due and closing the account suppressing material facts the complainant has filed the present complaint.



    3. There is no deficiency of service on the part of the opposite parties and the demand notice to the complainant are issued only as per the terms and conditions agreed to by the complainant at the time of issuing the Credit Card to him. The complainant is not eligible for any amount towards compensation and damages as claimed, since there is no

    deficiency of service on the part of the opposite parties. The complaint is filed in order to delay and deny the payments due to the opposite parties. Further the complainant is not a consumer as defined in the Act as there is only a debtor creditor relationship between the complainant and these opposite parties.


    4. Complainant and opposite parties filed affidavits and documents. Exts.A1 to A4 series marked on the side of complainant. Ext.B1 series marked on the side of opposite parties.


    5. Heard both sides.


    6. Now the issues for consideration are;

    1.

    Whether there is any deficiency of service on the part of opposite parties?
    2.

    If so, what is the reliefs and costs?


    7. Issues 1 & 2: Complainant has stated that opposite parties has not closed the credit card facility even though complainant requested for the same. Letters requesting closure of the credit card facility is marked as Ext.A1 and A3. Ext.A2 evidences the fact that the complainant has taken a demand draft for Rs.12,000/- towards settlement of the credit card dues. Examining Ext.A1 and A3, it does not reveal the fact that the said letters have been received by the opposite parties. No acknowledgment card or postal receipt attached.

    Further even though complainant has produced copy of demand draft showing an amount of Rs.12,000/- as one time settlement, there is no evidence to show that opposite parties have agreed for one time settlement for Rs.12,000/-. It is true that opposite parties have not replied for the lawyer notice issued by the complainant dt.22/10/07. But Ext.B1 series evidences the fact that complainant has been using the credit card facility even after the date of issuance of the lawyer notice also. If the complainant really intended for closure of the said facility, he would not have used it beyond the request for closure. Opposite parties have informed the complainant the terms and conditions of the use of the credit card facility and therefore they are entitled to levy charges if the amount is not settled on due dates.


    8. In view of the above discussions, we are of the view that complainant has miserably

    failed to prove the case in his favour.
  • SidhantSidhant Moderator
    edited September 2009
    The facts leading to the filing of the complaint are as follows: The complainant is a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955 and the complainant's society was registered in the year 1977 with Reg.No.S 178 of 1977.

    The complainant organisation is a Charitable Society and the objectives of the Society are made for the purpose of Development and Socio-Economic and Cultural Development of weaker sections of Society, especially the fishermen community and other allied activities, which are specifically mentioned in the bye-law of the organisation. The Bye-law No.6 of the complainant society says that the supreme authority of the Society will be the General Body which will consist of all those who are given membership to the Society. As usual the annual meeting of the Society for the year 2000 was held on 31st July 2000. Due notices were given to the members including the Agenda. One of the resolution is signed by 12 members to remove the full membership of Dr. John Kurian, Smt. Nalini Nayak, Sri.A.J.Vijayan and Smt.Aliamma Vijayan for acting against the interest of the complainant society and organizing the parallel association and for other grave indiscipline, Annual Meeting.

    The resolution removing 4 members mentioned above from full membership was passed by the 2/3rd majority of the members present. It is also decided in the General Body to co-opt, Sri. S.Rymond in the place of Sri.A.J.Vijayan, that the resolution so passed was given effect to and subsequently in August 2000 these four members filed a suit O.S.No.1513/2000 before the Principal Munsiff Court, Trivandrum for an injunction restraining the complainant herein from preventing them from exercising their rights duties and applications as the members of the complainant orgnisation and also restraining Sri.Rymond from acting as the Managing Committee member in the place of Sri.A.J. Vijayan. After 7 months the matter was heard and the court passed an order of interim injunction on 7th March, 2001 restraining the complainant society from giving further effect to the impugned resolution dated 31/7/2000 to the extent it removes the above four persons from their primary membership of the organization.

    At the same time the court refused injunction from restraining Sri.Rymond to act as the Managing Committee member in the place of Sri. A.J. Vijayan. The injunction order passed by the Court after 7 months has no effect since the resolution dated 31/7/2000 was given effect immediately. At the most the above four persons will have to await till the final disposal of the Original suit filed by them. When the complainant organisation is functioning peacefully and actively, Sri.A.J. Vijayan exerted undue political pressure through his direct brother, Sri.Antony Raju who was an MLA of the Ruling parties in power at the time. The Minister concerned was the leader of his party. So he obtained an order from the District Registrar of Societies (General), Thiruvananthapuram against the complainant from operating the bank account of the complainant society, with Canara Bank, Cantonment Branch, Trivandrum.

    2. Based on this order the Canara Bank passed an order on 9/11/2000 stating that in the light of the instructions of District Registrar, they will not allow the operation of the Accounts. Ext.P3 order was challenged by the complainant before the Hon'ble High Court of Kerala in O.P.No.31979 of 2000 – F and the Hon'ble High Court ordered notice and granted interim stay of the order passed by the District Registrar preventing the complainant from operating the bank account on 15/11/2000, for one month, and thereafter it was extended from time to time.

    The last order was passed by the Hon'ble High Court on 6/8/2001 making the stay order until further orders. The stay order granted is still in force and the Original petition is pending. The District Registrar who is the first respondent in the Original petition to the Hon'ble High Court filed a counter-affidavit before the Hon'ble Court on 6/8/2001 stating that "The first respondent (District Registrar) has not directed the Manager to freeze the Bank Account. The first respondent, director has not directed the 2nd respondent (Canara Bank) to freeze the Bank Account". Having failed in all their futile exercise, Sri. A.J.Vijayan and other persons became desperate and tried to capture the management of the complainant society by the man power unauthorisedly and illegally. Therefore the complaint has been filed before the Police authorities by the complainant, for police protection and peaceful functioning of the complainant society. Since the very effective police protection was not given by the police, the complainant moved an O.P.No.20139 of 2001-V before the Hon'ble High Court of Kerala and that the court passed an interim direction to the Sub Inspector, Contonment Police Station, Statue, Trivandrum to afford effective police protection to the complainant and their property and the peaceful functioning of the complainant society.


    It is also made clear in the order that respondents 4 to 7 (Sri. A.J.Vijayan and his associates) who are membes of the society are free to come to the society for lawful purpose. However if they cause any obstruction to the peaceful functioning of the society, certainly the police will grant protection against their illegal acts also. In the light of the orders passed by the Hon'ble High Court the police authorities granted very effective police protection and thereafter there is no obstruction or trouble from Sri. A.J.Vijayan and his associates.



    3. The complainant deposited a sum of Rs.5,00,000/- for 24 months on 21/7/1999 with the opposite party, the rate of interest payable is 10 ½ % per annum (payable quarterly). The maturity date of the deposit of Rs.5,00,000/- by the complainant was 21/7/2001. The complainant informed the opposite party on 3rd December, 2001 that the fixed deposit made by Annexure-H has been matured on 21st July 2001 and that the complainant wish to withdraw the full amount. Accordingly the complainant requested the opposite party to pay the amount forthwith.

    To the surprise of the complainant and against all the norms and principles, the opposite party informed the complainant on 12th December 2001 that to enable them to pay the Fixed Deposit Receipt give them a court order to know the authorised signatories of the Programme for Community Organisation. Who are the authorised signatories of the complainant was disclosed to the opposite party at the time of deposit and the opposite party is fully aware, of the authorised signatories of the complainant and thereafter they received the fixed deposit. The opposite party has no jurisdiction or power to refuse the withdrawal of the fixed deposit amount on maturity. It is only a willful authorised intention to refuse to pay and a false excuse. The unauthorised refusal to disburse the maturity amount of the Fixed Deposit constitute a deficiency in service. Hence this complaint for a direction to the opposite party to disburse the full Fixed Deposit amount with interest along with compenstion and costs.


    4. The opposite party has filed their detailed version contending as follows: The complaint is not maintainable. The complainant Mrs. Leelamma Jose is not the Co-ordinator of "Programme for Community Organization" No.S 178/77 registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, 1955. One Leenamma Jose had applied to the opposite party for release of the maturity value of fixed deposit receipt TV 1103/CD claiming that she was the co-ordinator vide letter dated 3/12/2001. On 8/11/2000, the District Registrar (General) had passed an order that the existing members of Programme for Community Organization have got no legal sanctity for operating the accounts in the Canara Bank, Contonment Branch, Thiruvananthapuram as there are some mal-practices in the working of the organisation.

    It was informed by the organisation vide its circular letter dated 30/7/1999 that the General Body had elected one J.B. Rajan as its Co-ordinator and E.Tajan as its Treasurer. Prior to the letter dated 21/10/2001 sent by Mrs. Leelamma Jose, one N.Wilfred, Secretary had sent a letter dated 18/10/2001 together with the original fixed deposit receipt requesting the amount due as per the fixed deposit of the organisation with the opposite party. Immediately another letter was also sent by P.C. Gomez and Seeta Dasan claiming that they are the co-ordinator and Secretary respectively, requesting to withhold the fixed deposits with the opposite party, until the dispute is settled in the Court of Law. A copy of the plaint filed in the Munsiff's Court, Thiruvananthapuram dated 24/8/2001 was also sent. The suit was one for declaring one P.C. Gomez, Sita Dasan, E.Tajan, Maglin Peter & A.J.Vijayan as the Managing Committee Members of the organisation. Whether the suit is finally disposed off is not yet known to the opposite party.

    So it is to be presumed that the suit is still pending. Another suit was also filed by certain other persons/members of the organisation viz. P. Robert and 5 others against Leelamma Jose, P.C.Gomez and District Registrar in which it was prayed to allow the complainants to file suit as per the draft plaint submitted in the case. All these legal steps/proceedings initiated by the members and the so called office bearers led the opposite party not to disburse the amount until and unless, the above said disputes, suits, O.Ps etc are finally disposed off. There is no dispute with regard to the deposit of Rs.5,00,000/-, by the organisation, with this opposite party. This opposite party is not liable to pay any amount to the complainant, inspite of several requests, unless and until the dispute between the members and the office bearers is settled. This opposite party has no objection in releasing the amount on submission of proper and legal proof by the competent office bearers of the organisation and this opposite party has every right to retain the deposited amount till the production of the same. Moreover, suits and proceedings are pending before the competent courts of law with respect to the title to the amounts deposited with the opposite party.

    Ignoring the said legal proceedings, if this opposite party releases the amount, the opposite party has to pay the amount again to the proper party. In these circumstances the opposite party prays for dismissal of the complaint with costs as the complainant has no subsisting right or title to get disbursement of the amount due as per the deposit receipt No.TV/1103/CD issued by this opposite party.


    5. The complainant has filed affidavit and marked Exts. P1 to P10 and the opposite party has filed their counter affidavit. Exts. D1 to D9 were marked on the part of the opposite party.


    6. From the contentions raised the following issues arise for consideration:

    1.

    Whether the act of the opposite party in not disbursing the maturity amount covered by the Fixed Deposit amount justifiable?
    2.

    Whether there is deficiency in service on the part of the opposite party?
    3.

    Whether the complainant is entitled for the reliefs claimed for in the complaint?


    7. Points (i) to (iii) : Admittedly, the complainant organisation has deposited an amount of Rs. 5,00,000/- as FD No.TV/1103/CD with the opposite party which is evident from Ext.P8. As per Ext.P8, the amount is seen received from Programme for Community Organisation PCO Centre, Spencer Junction, Palayam and the date of maturity is 21/7/2001. The complainant has requested for refund of the maturity value of the deposit amount on 3/12/2003 as per Ext.P9. As per Ext.P10, the opposite party has requested the complainant to produce a court order to know the authorized signatories of Programme for Community Organisation, so as to enable the opposite party to repay the FDR. At this juncture, the aspect for consideration is whether this act of the opposite party is proper and justifiable.


    8. The complainant has pleaded in their complaint itself that the peaceful functioning of the organisation has been affected by the act of political pressure by Sri. A.J. Vijayan and he had obtained an order from the District Registrar of Societies against the complainant from operating the bank account of the complainant society, with Canara Bank, Thiruvananthapuram. The complainant had obtained a stay order as per Ext.P4 wherein interim stay has been extended until further orders. The complainant has further pleaded that Sri. A.J. Vijayan and other persons tried to capture the management of the complainant society by man power unauthorisedly and illegally, and as per the request of the complainant since effective police protection was not given the complainant moved an O.P before the Hon'ble High Court and as per the order of the Hon'ble High Court the police authorities granted very effective police protection and thereafter there is no obstruction or trouble from Sri. A.J.

    Vijayan and his associates. From the above it is evident that there are rival groups and internal clashes within the organisation. The opposite party as per Ext.P10 has requested a court order to know the authorised signatory. As per Ext.P9, the complainant has stated that, the fixed deposit receipt will be surrendered on payment of the amount. Without receiving back the fixed deposit receipt whether the opposite party will disburse the amount is yet another aspect. But at this point of time, we are not going into that aspect. It is apparently clear that the complainant has not shown the fixed deposit receipt to the opposite party regarding the said amount or produced before the opposite party any legal proof by the competent office bearers regarding the authorized signatories of the complainant. Moreover, as per Ext.D3, the complainant organisation has issued a letter to the opposite party stating that the account of the complainant organisation will be in the joint names of the co-ordinator, the Secretary and the Treasurer, but withdrawals will be made with the signature of any two of the three office bearers. The complainant do not have a case that they had requested for withdrawal of the fixed deposit amount accordingly. The complainant has no case that inspite of production of proper proof, the amount has not been refunded. Hence the request of the opposite party as per Ext.P10, at this circumstance as there are controversies within the complainant organisation, can only be considered as part of their duty in disbursement of the loan amount and hence genuine and proper. The opposite party has never stated that the amount will not be refunded. The only demand is for the production of a court order for proof of authorised signatory. Considering the sequence of events, we do not think, the opposite party was wrong in claiming proof. In the above circumstance we do not find any deficiency in service on the part of the opposite party. Hence the complaint is dismissed accordingly as the complainant has failed to establish any negligence or deficiency in service on the part of the opposite party.
  • SidhantSidhant Moderator
    edited September 2009
    Balwinder Kaur wife of Sh. Arvinder Singh, resident of 1548/1, Beant pura, Chandigarh Road, Ludhiana.
    Vs.

    HDFC Bank Ltd. having its office at Retail Estate Division, 5th Floor, First Mall, The Mall, Ludhiana through its Manager/authorised representative.

    1. Complainant purchased a second hand car, for purchase of which entered into a loan agreement vide account no.72357 with the opposite party. At that time, opposite party obtained various cheques from the complainant qua repayment of the loan which were duly honoured, except two cheques of Rs.5330/- each. Amount of dishonoured cheques was paid by the complainant in cash to the opposite party. Thereafter, after clearing the loan instalments, demanded cheques from the opposite party, but representative of the opposite party conveyed that the cheques had been destroyed as cash payment has been received against those cheques. Complainant by making the payment had cleared the loan and nothing was due towards her. Despite it, opposite party issued letter dated 4.9.2007 demanding Rs.14,371/- as outstanding due against the loan . This letter is wrong, illegal and opposite party failed to issue NOC despite receipt of loan amount of her account. Such act on the part of opposite party, in the present complaint under section 12 of the Consumer Protection Act, 1986 is claimed amounting to deficiency in service. Therefore, sought direction against opposite party to issue NOC and also compensation of Rs.1,00,000/- for harassment and deficiency in service.

    2. Opposite party in reply has controverted the allegations of the complainant on the ground that they are baseless and frivolous. Obtaining loan for purchase of the car is admitted. But claimed that the complainant is defaulter of clearing loan, as 11 cheques qua repayment of the loan given by her got bounced w.e.f. 2.9.2002. She paid instalment amount of loan, late from the scheduled time mentioned in the agreement. The loan agreement was signed by the complainant of her own. Letter dated 4.9.2007 demanding Rs.14,371/- was rightly issued as she had not paid instalments as per agreed schedule and her cheques got bounced. Therefore, there is no deficiency in service on their part.

    3. Parties adduced their evidence by way of affidavits and documents in support f their respective contentions.

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

    5. Grouse of the complainant is against letter Ex.C.1 of the opposite party under which an amount of Rs.14,371/- has been claimed from her under the loan agreement. Ex.R2 is copy of the loan agreement entered between the parties. Loan amount of Rs.1,40,000/- was taken by the complainant, repayable with 18.5% interest per annum, in 33 instalments commencing from 2.4.2002 to 2.11.2004.

    5. It is in these circumstances plea of the complainant that she had adhered to repayment schedule of instalments and only two cheques got bounced but amount of those bounced instalments was paid in cash. Whereas opposite party has taken plea of bouncing of not 2 but 11 cheques. This version of opposite party is supported by account statement for the period from 3.9.2002 to 3.9.2004, copy of which is Ex.C.9. Vide this statement on 5.9.02, 8.10.2002, 12.11.2002, 8.1.2003, 6.2.2003, 7.3.2003, 5.4.2003, 11.10.2003 and 5.12.2003 cheques issued by the complainant qua repayment of the loan got bounced. Hence, charges of Rs.250/- each were debited to the account. In addition, overdue charges were also added to her account. This falsifies her claim that only two cheques got bounced and payment of the same was made in cash. Rather 9 cheques, as referred above, got bounced. Under the agreement, she was required to pay charges for delayed payment and opposite party would also be justified to claim the bouncing charges from her. It was in these circumstances that opposite party had rightly issued notice ex.C.1 claiming from her an amount of Rs. 14,371/. By issuing the same, opposite party in our view would not be guilty of resorting to unfair trade practice and they consequently rightly replied the notice ex.C.6 of the complainant vide their reply Ex.C.7.

    6. In these circumstances, we find no merit in the complaint and the same is dismissed.
  • SidhantSidhant Moderator
    edited September 2009
    Ajaib Singh (aged about 66 years) son of Amar Singh, resident of House No.1084, Inder Singh Gill Nagar, Moga.

    Versus

    1. HDFC Bank Limited, Retail Asset Collections, 4th Floor, Old Building 26-A, Narayan Properties Chandivali, Andheri West, Mumbai.

    2. HDFC Bank Limited, Branch at G.T.Road, Moga through its Branch Manager.


    Sh.Ajaib Singh complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against HDFC Bank Limited, Retail Asset Collections, 4th Floor, Old Building 26-A, Narayan Properties Chandivali, Andheri West, Mumbai and another (herein-after referred to as ‘HDFC Bank’)-opposite parties directing them to issue ‘clearance certificate’, ‘no due certificate’ and ‘form no.35’ in respect of truck no.PB-29D/9172 and also to pay Rs.20000/- on account of damages/ compensation for causing mental tension and harassment or any other relief to which this Forum may deem fit be granted.

    2. Briefly stated, Ajaib Singh complainant had availed loan from OP2-HDFC Bank for purchasing truck no.PB-29D/9172. He has deposited the entire outstanding loan alongwith interest against him as per the statement issued by OP2-HDFC Bank. Thereafter, the complainant visited the office of OP2-HDFC Bank for issuing ‘clearance certificate’, ‘no due certificate’ and ‘form no.35’ in respect of truck no.PB-29D/9172, but the same have not been issued without any rhyme or reason and no satisfactory reply has been furnished by them. That the aforesaid act and conduct of the OPs-HDFC Bank has caused him great mental tension and harassment. Hence, the present complaint.

    3. Notice of the complaint was given to the OPs-HDFC Bank, who appeared through Sh.R.S.Gill Advocate and filed the written reply contesting the same. They took up preliminary objections that the complaint is pre-mature and the same is false and frivolous to the knowledge of the complainant. That on asking about the ‘no due certificate or ‘clearance certificate’ by the complainant, he was told to first deposit a sum of Rs.142809/- due from him in the tractor loan account upto February 2009 and a sum of Rs.36453/- in his another commercial vehicle loan account.

    That the complainant was further told that till he adjusts or repays the outstanding loan amounts of his other loan accounts which were NPA, his truck loan account will also be treated as NPA/NPI as per the Master Circular on prudential norms on income recognity asset classification and provisioning pertaining to advances as circulated by Reserve Bank of India in July, 2005. On merits, the OPs-HDFC Bank took up the same and similar plea as taken up by them in the preliminary objections. Thus, there was no deficiency in service on the part of OPs-HDFC Bank. All other allegations contained in the complaint were specifically denied being wrong and incorrect. Hence, it was prayed that the complaint being false and frivolous may please be dismissed.

    4. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, copy of repayment schedule Ex.A2, copy of repayment receipt Ex.A3 to Ex.A23, copy of RC Ex.A24 and closed his evidence.

    5. To rebut the evidence of the complainant, the OPs-HDFC Bank tendered affidavit Ex.R1 of Sh.Aditya Puri, copies of statements Ex.R2 to Ex.R4, copy of power of attorney Ex.R5, copy of circular Ex.R6 and closed their evidence.

    6. We have heard the arguments of Sh.K.K.Tiwari ld.counsel for the complainant and Sh.R.S.Gill ld.counsel for OPs-HDFC Bank and have very carefully perused the evidence on the file.

    7. Sh.K.K.Tiwari ld.counsel for the complainant has mainly argued that the OPs-HDFC Bank has committed deficiency in service by not issuing ‘clearance certificate’, ‘no due certificate’ and “form no. 35’ to the complainant in respect of loan of truck no.PB-29D/9172, although he has paid the entire outstanding amount i.e. principle loan amount alongwith interest. This contention of the ld.counsel for the complainant has full force. It is admitted case of the parties that Ajaib Singh complainant took loan from the Ops-HDFC Bank for the purchase of truck no.PB-29D/9172 and he repaid the entire loan amount alongwith interest vide statement of account Ex.A2 (Ex.R2 same document). The statement of account Ex.A2 (Ex.R2 same document) shows that nothing is due against the complainant on account of loan taken by him for the purchase of truck no.PB-29D/9172.

    8. The contention of the ld.counsel for the OPs-HDFC Bank that some amounts are outstanding against the complainant on account of two other loans taken by him for the purchase of tractor/ truck is concerned, the same has no merit. The issuance of ‘clearance certificate’, ‘no due certificate’ and “form no. 35’ with regard to the loan of truck no.PB-29D/ 9172 can not be withheld by OP2-HDFC Bank simply on the ground that some amounts are due against the complainant with regard to two other loans taken by him. The complainant had been repaying the installments of two other loans taken by him from OP2-HDFC Bank and in case he has violated or breached any term and condition of said loan accounts, the only remedy available to the Ops-HDFC Bank is to initiate recovery proceedings against him. In the instant case, the Ops-HDFC has failed to produce any evidence to prove if they have sent any legal notice or initiated recovery proceedings against him on account of default, if any, committed by him in two other loans.

    Thus, mere because some amounts are due against the complainant in two other loans is not sufficient to hold that the Ops-HDFC Bank is entitled to withheld ‘clearance certificate’, ‘no due certificate’ and “form no. 35’ with regard to the loan of truck no.PB-29D/ 9172 regarding which the complainant had already paid the entire loan alongwith interest. Hence, it is a clear cut case of deficiency in service on the part of the OPs-HDFC Bank by not issuing the aforesaid documents. In view of our above discussions, we, therefore hold that the Ops-HDFC Bank has committed deficiency in service and caused mental tension, harassment and agony to the complainant by not issuing the aforesaid requisite documents to which the complainant is legally entitled.

    9. To prove the aforesaid contentions, the complainant has produced his affidavit Ex.A1, copy of repayment schedule Ex.A2, copy of repayment receipt Ex.A3 to Ex.A23, copy of RC Ex.A24 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit of Ex.R1 of Sh.Aditya Puri and documents Ex.R2 to Ex.R6 and we discard the same.

    10. The ld. counsel for the parties did not urge or argue any other point before us.

    11. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. OPs-HDFC Bank is directed to issue the ‘clearance certificate’, ‘no due certificate’ and ‘form no.35’ in respect of truck no.PB-29D/9172 and also to pay Rs.10000/- as compensation for mental tension, harassment and agony to the complainant within one month from the date of receipt of copy of this order.
  • SidhantSidhant Moderator
    edited September 2009
    Unnikannan. PV,

    Parambath Veedu, Pollappoil, } Complainant

    Kodakkad.Po. Kasaragod. 671357.


    1. Poineer Motors, Kasaragod.

    (Adv. Madhavan Malangad, Kasaragod) } Opposite parties

    2. Centurian Bank of Punjab

    Now HDFC Bank, Calicut.
    O R D E R

    The complainant Unnikanan. P.V, purchased a Yamaha Libero Motorcycle from Opposite party No.1 M/s Pioneer Motors, Kasaragod with the loan arranged by them from opposite party No.2 Centurian Bank (Now HDFC Bank). Eventhough he cleared the entire loan much before the due date original RC and duplicate key of the bike were not returned. Though he approached the office of the HDFC bank situated at Kasaragod and Kozhikode his request for the return of the original RC and the key was not materialized. Therefore now he cannot ply the bike for want of original RC. Hence the complaint alleging deficiency in service on the part of opposite parties.

    2. According to opposite party No.1 they are only the dealers of the motorcycle. They have nothing to do with the finance agreement with the HDFC Bank. The original RC, Insurance certificate, Tax token and the key of the vehicle is not in their custody and they are unnecessary parties to the proceedings.

    3. Opposite party No.2 in their version contended that they have not received the RC and key of the said vehicle from opposite party No.1 dealer who has undertaken the work of repairing the vehicle. Therefore the remedy left to the complainant is to approach the opposite party No.1 dealer for the original RC and key and opposite party No.2 is unnecessary party to the proceedings.

    4. Complainant adduced evidence as PW1 and Exts A1 to A3 marked. For opposite party No.1 no oral or documentary evidences were adduced. For opposite party No.2 the Assistant Manager, Legal examined as DW1 and no documents were produced.

    5 As per the version of opposite party No.2 they have not received the RC & Key of the vehicle of the complainant from opposite party No.1. This would goes to show that all the arrangements for the finance is done by opposite party No.1 the dealer of the motor cycle as deposed by PW1 and it was the duty of opposite party No.2 to collect the RC and key from opposite party No.1. The failure to collect the said documents from opposite party No.1 and to return back them to the complainant after the closure of the loan is definitely a deficiency in service.

    6. We have come across a number of complaints alleging deficiency in service on the part of banks and financial institutions who failed to return the vehicle documents and cheques collected as security at the time of executing loan agreement though the entire dues are paid by the customer. No doubt it will cause much mental agony and sufferings to the customers. Therefore this is a fit case to order payment of punitive compensation. As held by the Hon’ble Apex court punitive compensation has to be awarded not only to recompense the aggrieved but also to make a qualitative charge in the minds of the wrong doers.

    Therefore the complaint is allowed and the opposite party No.2 the HDFC Bank is directed to return the original RC of the vehicle bearing Reg.No.KL-14 F 1480 with the key to the complainant along with a compensation of Rs.10,000/- for the loss hardships and mental agony suffered by the complainant and a cost of Rs.2000/-. In the event of failure to return the original RC and the key then opposite party No.2 shall pay an additional compensation of Rs.5,000/-. Had the opposite party No.2 got a case that the opposite party No.1 is liable to return the documents with key then opposite party No.2 can recover the said amount of compensation through appropriate legal proceedings from opposite party No.1 after paying the same to the complainant. However opposite party No.1 is exonerated from liabilities in this proceedings.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    The complainant was an account holder of the respondent Bank and availed their credit facility with Credit Card No.4346771008146434. While he was using the credit card he made purchase for bill amount of nearly Rs.6000/- to 7000/-. The complainant realized that the respondent bank was debiting exorbitant amount by way of service charges and as interest amounting to 100% to 150%. So the complainant wanted a statement of account to clear the debit. But the respondent informed him that the statement would be supplied on payment of Rs.150/- per month and if the complainant wanted the statement for the entire period of 18/20 months the total charges would amount Rs.2000/-. The complainant wanted to cancel the arrangement and sent the card to the respondent bank duly destroyed and advised them to inform the balance to be paid by him. The respondent informed over phone that the amount would be Rs.8500/-. Hence the complainant demanded a statement and the respondent did not furnish the statement. On December 2007 the respondent furnished a statement demanding amount of Rs.11,494.57 as against Rs.8500/- demanded in September 2007 and the amount increased to Rs.12,544.62 in January 2008. The complainant asked for the reasons for such increase. But the respondent threatened him to black list him in the RBI Website CIBIL if the complainant did not pay the exorbitant amount. Hence the complaint is filed praying to direct the respondent to furnish him the actual details of debits , made to him for the purchases.

    2. The respondent called absent and declared exparte.

    3. The complainant has filed affidavit and produced documents and marked as Exhibits P1 to P3.

    4. The complainant’s case is that he had used the Credit Card facility for 18 to 20 months. When he realized that the respondent bank was debiting exorbitant amount by way of service charges and interest the complainant decided to stop using credit card. The complainant requested to inform him the balance to be paid by him The respondent informed him the balance amount as Rs.8500/-. Later on December 2007 the balance amount to be paid increased as Rs.11,494.57 and further increased to 12,544.62 on January 2008. The complainant requested the reason for such an increase. But he was threatened to black list him in the RBI Website. The complainant has right to know the details of his account and also the reason and rules regarding the calculation. Being a scheduled bank functioning under the rules and regulations governed by the RBI, the respondents cannot deny this right. So the complainant is entitled by all means to know the details of debits.

    5.There is no evidence to the contrary.

    6. In the result the complaint is allowed and the respondent is directed to furnish actual details of debits made to the complainant for purchase and the details of calculating interest there on. They are further directed to pay Rs.2000/- (Rupees Two thousand only) as compensation and Rs.500/- (Rupees Five hundred only) as costs to the litigation. Comply the order within one month.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    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.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    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.
  • SidhantSidhant Moderator
    edited September 2009
    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.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited 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






    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited 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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    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.
Sign In or Register to comment.