Punjab

Ludhiana

CC/19/593

Rakesh Kumar - Complainant(s)

Versus

Axis Bank Ltd - Opp.Party(s)

A.K.Kalsi Adv.

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:593 dated 23.12.2019.                                                         Date of decision: 01.02.2024.

 

Rakesh Kumar, aged about 49 years, son of late Sh. Ramesh Kumar, resident of Killa Mohalla, Near Kumharan Wali Gali, Near S.D.P. College, Ludhiana (Mobile No.99883-23219).                                                                                                                                                            ..…Complainant

                                                Versus

1. The Chairman, AXIS Bank Ltd., Trishul, Opp. Samartheswar Temple, New Law Garden, Ellisbridge, Ahmedabad, Gujarat.
2. M/s. AXIS Bank Ltd., Branch Feroze Gandhi Market, Ludhiana through its Branch Manager.                                                                                                                                                     …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

SH. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. A.K. Kalsy, Advocate.

For OPs                          :         Sh. Ashwani Sharma, Advocate. (Defence of                                              OPs struck of vide order dated 15.02.2023)

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that on 27.06.2019, the OPs sanctioned/granted a housing loan of Rs.11,38,000/- to the complainant for purchase of property i.e. Flat No.240/5, Floor No.5^th, Tower 15, SBS Homes, Mohali vide agreement No.PHR004204041688, out of which an amount of Rs.9,92,957/- was disbursed to the complainant and the remaining sanctioned loan amount was kept by the OPs in account of the complainant. The complainant stated that on 26.11.2019, he visited OP2 to get statement of account of his loan where he came to know that an amount of Rs.58,567/- has been invested by the OPs in the shape of fixed deposit with M/s. Max Life without his consent and permission. When the complainant raised his protest then Jagjit Singh staff of OP2 asked the complainant to sign on a blank paper/form to discontinue the said fixed deposit. However, the amount was invested in fixed deposit without getting signature and permission of the complainant. The complainant further stated that he is a Sweeper and does not know reading and writing etc. and can only sign in English. Even the loan documents were neither read over nor explained to him before obtaining his signatures on the same. Thus the OPs have played fraud with him which amounts to deficiency in service and unfair trade practice. The complainant claimed to have suffered mental agony and harassment etc. In the end, the complainant has prayed for issuing directions to the OPs to pay Rs.1,58,567/- along with litigation expenses of Rs.33,000/-.

2.                Upon notice, Sh. Raju Chopra, Advocate appeared and filed memo of appearance on behalf of OPs on 24.12.2020 and the case was adjourned for filing regular power of attorney and written statement by the OPs but the OPs failed to file written statement within stipulated period despite grant of last and final chance. Thereafter, Sh. Ashwani Sharma, Advocate filed power of attorney and written statement on behalf of OPs on 17.03.2021.  However, on 17.03.2021 itself, the complainant also filed application for striking of defence of the OPs and not to accept the written reply. The said application was disposed of on 15.02.2023 with an order that the written statement filled by the OPs on 17.03.2021 being beyond of period of limitation cannot be taken on record and the complaint shall be proceeded further to settle the consumer dispute exparte on the basis of evidence to be brought by the complainant only.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. P1 account statement from 26.11.2010 to 26.11.2019 and closed the evidence.

4.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents produced on record by the complainant.   

5.                Undisputed facts that emerges from the record are that the complainant availed housing loan facilities of Rs.11,38,000/- from the OPs for the purchase of flat situated at Mohali and an amount of Rs.9,92,957/- was disbursed to him. The OPs being master policy holder enrolled the complainant vide enrolment form No.10281336 and got issued an insurance policy effective from 27.06.2019. A single premium of Rs.58,566.95 was charged and a sum of Rs.11,58,567/- was assured being equivalent to the loan amount. The period for coverage policy was 120 months and which was due to expire on 26.06.2029. These facts are also evident from the policy documents i.e. certificate of insurance, important conditions of the policy and enrolment form which were presented and referred to by the counsel for the OPs during course of oral arguments.

6.                The only grievance which has been raised by the complainant is that his signatures were obtained on blank papers and an amount of Rs.58,567/- has been deducted arbitrarily by the OPs from the sanctioned loan amount and therefore, practiced unfair trade practice.

7.                Close scrutiny of policy documents reveals that the complainant nominated Ms. Reena, his wife as nominee and provided particulars of her date of birth etc. The complainant had paid one time premium through cheque as reflected from the statement of account Ex. P1. There is no document on record to show that the complainant immediately contacted the OPs as and when he came to know about the alleged discrepancy. He also did not report the matter to any civil or police authorities by moving written representations that a fraud has been played upon him and his signatures were obtained by the officials of the OPs on blank papers. He has leveled specific allegations on one official of the OPs namely Jagjit Singh but the same has not been arrayed as party to the complaint. The blank paper theory propounded by the complainant seems to be an afterthought. Perusal of the policy documents reveals that the policy issued to the complainant serves dual purpose. It not only provides coverage to the complainant but also secures the loan amount in case of happening of contingency enumerated in the policy itself. The initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.   

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                   (Sanjeev Batra)                Member                     Member                                  President   

 

Announced in Open Commission.

Dated:01.02.2024.

Gobind Ram.