IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 23rd day of May, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 132/2020 (filed on 16-09-2020)
Petitioner : Mathew Abraham,
Thakkiyel House,
Pallom P.O.
Kottayam – 686007.
Vs.
Opposite Parties : 1) The Manager,
Bajaj Finance Company,
T.B. Road, Kottayam.
Opp. Kalyan Silks,
Kottayam.
(ADv. Jaison Paliyil)
2) The Manager,
ICICI Bank,
Collectorate Branch,
Kottayam P.O.
(Adv. D. Zaibo)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under section 35 of the consumer protection Act 2019.
Case of the complainant is that during October 2019 he had availed a personal loan of Rs. One Lakh from the first opposite party. The mode of repayment was monthly equated premium of Rs.4365. The first opposite party deducted the EMI from the account of the complainant which is maintained with the second opposite party. During the lockdown period while the office of the opposite parties was closed the EMI was collected by an agent of the first opposite party without any default. But when the lock down was lifted in the month of July and August an amount of Rs.1202 and Rs.1770 was deducted from the account of the complainant. On enquiry it is informed to the complainant by the second opposite party that the said amount was deducted at the request of the first opposite party. But the first opposite party denied the same. According to the complainant the deduction of the amount from his account when the moratorium was in force is illegal and amounts to deficiency in service. Hence this complaint.
Upon notice opposite parties appeared before the commission and filed separate version.
Version of the first opposite party is as follows:
The relationship between the complainant and the first opposite party is that of debtor and creditor and not that of a consumer and service provider. Hence the complaint is not maintainable. The complainant had himself foreclosed the loan account by paying Rs.84,260 on 29-9-2020 and availed another loan for an amount of Rs.86,148. The complainant only after agreeing the terms and conditions, offers and benefits converted the old loan account to new loan.
It is submitted in the version that complainant had issued NACH/Auto Debit Mandate for the repayment of the installments. Out of the total amount of Rs.1,00,00/- only an amount of Rs.91,628 was credited on the account of the complainant and the balance amount of Rs.8,372 was deducted towards the incidental/processing fees. The complainant has paid all the EMI of Rs.4356 from EMI no 1 to 9 on the due date. EMI no. 10 to12 were got dishonored due to the reason of insufficient funds and the same was paid in cash at a later date. Opposite party in good faith granted suo-moto moratorium to the complainant at the end of respective months in view of the master circular laid down by the RBI on Covid -19 Regulatory Package. As a result EMI’s for the month of August 2020 have been rescheduled and the existing tenure of the loan has been increased to 38 months. Due to suo-moto moratorium granted to the complainant, additional interest of Rs.2040 for the said month of September 2020 has been levied to the account of the complainant. On September 2020 complainant after understanding the terms and conditions foreclosed the loan on 29-9-2020 by paying Rs. 84,260. The alleged amount of Rs.1,532/- and Rs.1,770/- have not been deducted by this opposite party and the same should be taken up with the second opposite party. Government of India on 23-10-2020 announced the scheme which mandates ex-gratia payment to Borrowers by crediting the difference between compound interest and simple interest for the period between 1-3-2020 and 31-8-2020 in respect to the their loan accounts by respective lending institutions. Pursuant to the said scheme the first opposite party has duly refunded he complainant an amount of Rs.964/- towards the loan. There is no deficiency in service from the part of the first opposite party.
Second opposite party filed version contenting as follows:
The complainant holding a savings bank account with the second opposite party with no. 626701516709. The complainant had opted ECs for repayment of his loan EMI due to the first opposite party. He had submitted the required mandate through the first opposite party to clear the ECs cheques triggered by the financing company by auto debiting from his account. During the period from 01-06-2020 to 11-8-2020 6 ECs cheques triggered by the first opposite party were dishnourned. The bounce charges applicable to the said account as per RBI regulations were levied from his account. The allegation that the first opposite party had collected the installment amounts in cash and had simultaneously triggered ECS for collection is not known to the second opposite party. One ECS cheque was honoured on 17-6-2020 for Rs.1202 and the said amount was credited to the first opposite party. Other six ECs cheques triggered on 5-5-20,6-5-20, 8-5-20, 11-5-20,5-6-20 and 6-6-20 were bounced for want of sufficient funds . Bounce charges that the prevailing rates were applicable and Rs.1532 was debited on 5-8-20 and Rs.1770 on 11-8-2020 from the account towards the above 6 bounced charges. These debits were made as part of automated process and not done manually. The first opposite party triggered ECS cheques several times but the same were bounced for want of sufficient funds in the account. The second opposite party has not committed any fault and has not received any amount illegally or unjust.
Complainant filed proof affidavit in lieu of chief examination and exhibits A1 to A3 were marked. No oral or documentary evidence is adduced by the opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points?
- Whether there is any deficiency in service on the part of the opposite parties?
- If what are the rliefs and cost?
Pont number 1 and 2
There is no dispute on the fact that the complainant had availed a loan of Rs.1,00,000 from the first opposite party wide loan account no. 451GPLET888333 on 30-6-2019. Admittedly the said loan was foreclosed on 24-9-2020. The first opposite party contended that relationship between the complainant and the first opposite party is that of debtor and creditor and not that of a consumer and service provider. Section 2(7) (ii) of Consumer Protection Act 2019 defines consumer as “ hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.
Section 2 (42) service defines “service means service of any description which is made available to potential users and includes, but not limited to the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
Bank transactions have specifically been brought within the ambit of Consumer Protection Act. One of the important services rendered by the bank is advancing of loan of various kinds. In the instant case the bank itself has evolved a scheme for grant of loan. Our view in the matter is that whenever one purchase goods with the financial assistance of the bank or for that matter, any other financial institution, and one essentially hires the services of the bank/financial institution for which one pays service charge to the financier in the form of interest. Let us appreciate that, had there been no rendering of service, there would hardly be any question of payment of service charge (interest). Differently put, the opposite parties, which belongs to the service sector, rendered services of financial assistance to the compliant by receiving interest in lieu of stipulated service charges in the form of interest. The present dispute, accordingly, is very much maintainable under the Act.
The specific case of the complainant is that though he had paid the amount without default including the lock down period in the month of July and August an amount of Rs. 1202/- and Rs.1770/- was deducted from his account. It is admitted by the first opposite party that the complainant had paid all the EMI’s and foreclosed the loan on 24-9-2020. Exhibit A1 is the summary of account of the complainant as on 31-7-2020. On perusal of exhibit A1 we can see that there was a deduction of an amount of Rs.1202/- on 17-6-2020 and another deduction of Rs.237.36/- on 1-7-2020. It is further proved by exhibit A2 that there was deduction of Rs. 590,590, and 362.64 on 5-8-2020 towards the NACH return charges. Further Rs.590, 590, and 589 was deducted on 11-8-2020 towards NACH return charges. Exhibit A1 proves that the ESC mandate was triggered on 18-8-2020 and there was a deduction Rs. 123.27 from the account of the complainant. It is further proved by Exhibit A2 that on 20-8-2020 there was a deduction Rs.590/- twice towards the NACH return charges. Lastly on 28-8-2020 there was deduction of Rs.325.99 towards the NACH return charges. Exhibit A3 which is the summary of account of the complainant as on 31-1-2021 proves that on 24-11-2020 there was deduction Rs.590/- each in four times and Rs.589/- and 466/- towards NACH return charges on the same day. Though the first opposite party has stated in the version that they have informed the complainant about the dishonour of the ESC cheques on 5-5-2020, 5-6-2020 and 5-7-2020 they have not adduced any evidence to prove that they have duly informed the complainant regarding the dishonour of the ECS cheques on 5-8-2020, 11-8-2020 and 24-11-2020. Admittedly, the dishonored amount was received by the first opposite party later in cash during the month of 5-5-2020, 5-6-2020 and 5-7-2020. Second opposite party admits that the ECS cheque has been submitted several times by the first opposite party. It can be seen from the reproduction of the messages in the version of the first opposite party, which were sent by them regarding the dishonor of ECS on 5-5-2020, 5-6-2020 and 5-7-2020 that on every dishonor the first opposite party had received Rs. 606/- from the account of the complainant. From this we can understand that, the repeated submission of the ECs on the same day of dishonor would give much monetary benefit to the first opposite party. If the dishonor of the ECS is duly intimated, no prudent man will anticipate that the dishonored instrument would have been presented repeatedly on the same day for encashment.
Section 2 (11) of the consumer protection act 2019 defines the deficiency is as follows.
“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes –
- any act of negligence or omission or commission by such person which causes loss or injury to the consumer ; and
- deliberate withholding of relevant information by such person to the consumer.
Thus any act of negligence or omission or commission by the service provider , which causes loss or injury to the consumer amounts to deficiency. As discussed above by repeated submission of ECs on the same day itself caused loss to the complainant and illegal gain to the first opposite party. The said act of the first opposite party bank is a classic example of looting money from their customers by misusing the advanced mode of repayment such as NACH credit and ECS which are approved by the regulator bank for the convenience of the customers. According to the complainant he had lost a total amount of Rs.4504/- due to the deficient act of the first opposite party. More over the negligent act of the first opposite party put the complainant to much hardship and mental agony for which the first opposite party is liable.
In the circumstances we allow the complaint and pass the following order:
- We hereby direct the first opposite party to refund Rs.4504/- to the complainant with 9% interest from 16-9-2020 ie. the date on which the complaint is filed till realization.
We hereby direct the first opposite party to pay Rs.5,000/- as compensation to the complainant for the negligent act done by the first opposite party.
The Order shall be complied within a period of 30 days from the date of receipt of Order. If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 23rd day of May, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of summary of account as on 31-07-2020 issued by 2nd opposite party
A2 - Copy of summary of account as on 31-10-2020 issued by 2nd opposite party
A3 - Copy of summary of account as on 31-01-2021 issued by 2nd opposite party
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
