1. The complaint in short is as follows:-
The case of the complainant is that, he purchased a mobile phone from Gulfcollections, Kottappadi, Malappuram on 03/03/2021 availing financial assistance from Bajaj FinServ through EMI. The complainant remitted Rs. 2997/- as down payment. Since subsequent months 2021 April 5 and May 5, the company withdrew the EMI amount from the bank account of complainant. During the June 5, the third month, the balance amount in the account of the complainant was in sufficient to pay the EMI and so he remitted the amount on June 9, Rs. 1565/- inclusive of the fine to the Bajaj Finserv Office, before the Executive Mr.Navas at Malappuram. But the Bajaj company, the opposite party withdrew Rs. 999/- from the account of the complainant on the following day. Then the complainant filed a complaint before the Bajaj Finserv Office at Malappuram and on receipt of the same they forwarded the same to the higher authorities. They had assured that the withdrawn amount will be refunded or it will be adjusted with next EMI. But the opposite party ignored the assurance and thereafter also the opposite party has withdrawn bounce charge twice. Hence, the complainant again approached the opposite party office. Even though they acknowledge the grievance of the complainant there is no positive response from the opposite party to redress the grievance of the complainant and so he prays compensation of Rs. 20,00,000/- for the loss.
2. On admission of the complaint, notice was issued to the opposite party and on receipt of notice, the opposite party entered appearance and filed version and denied the enter averments and allegations in the complaint. According to opposite party the complaint is false, frivolous and filed with Malafide intention and based on wrong information, not maintainable and is liable to be dismissed with cost. The complainant has not approached the Commission with clean hands, but with suppressed materials facts, and there is no cause of action against the opposite party. The complainant had taken loan from the opposite party and so the relation between the complainant and opposite party is that of debtor and creditor and not that of consumer and service provider and so the Commission have no jurisdiction to entertain the present complaint. The opposite party further specifically denied the averments in the complaint and submitted the case of opposite party as follows according to them.
3. The opposite party submitted that the complainant had purchased one OPPO mobile phone from the dealer and subsequently had availed a loan from the opposite party vide loan account No. 5S9DPFGU017406 for Rs. 9,990/- dated 03/03/2021 with a monthly EMI of Rs. 999/- deducted for 10 months, out of which the complainant has paid 3 EMI’s in advance and the balance to be paid by 7 equal instalments commencing from 05/04/2021 and ending on 05/10/2021. The complainant also had availed insurance from the Insurance Company who has not been impleaded as party to the complaint, vide loan account No. 5S9DFSGU018588 for Rs. 999/- dated 05/04/2021 with a monthly EMI of Rs. 143/- to be deducted for 7 months commencing from 05/04/2021 and ending on 05/10/2021. Hence total EMI’s which have got deducted from the account of the complainant is Rs. 1142/- per month that is Rs. 999/- towards the mobile phone and Rs. 143/- towards the insurance loan account.
4. The complainant had issued NACH mandate / auto debit for the repayment of the
instalments and the complainant had issued banking details of his bank for the repayment of the instalments. But the records of the complainant show that, he is a defaulter and has not paid the EMI’s of few instalments on time which are also reflecting from the statement of account, the complainant has not maintained the sufficient balance in his bank account and so auto debit/NACH mandate presented by the opposite party for collecting EMI’s were returned unpaid by the complainant’s banker and bouncing charges have been levied by the opposite party. But it is submitted by the opposite party that to avoid paying the bouncing charges the complainant has paid the EMI’s in advance, pre-months. It is further submitted that the complainant failed to implead the banker to clarify the exact transactions. The specific contention of the opposite party is that the complainant has defaulted the EMI No. 5 and 6 due to the insufficient funds interalia and the bouncing charges of Rs. 454/- each has been levied in the account. The opposite party further submitted that instead of collecting the alleged charges on respective due dates, the bank of the complainant has collected these charges on subsequent days as per its convenience. Therefore, the submission of the opposite party is that they should not be held responsible and liable to pay any compensation as it is not a fault or deficiency in-services on the part of the opposite party. It is also submitted that opposite party has not collected excess amount but only deducted those charges which the opposite party is entitled to receive. If the complainant has got any case of excess deduction, the complainant should take up the matter with his banker who has not been impleaded as party to the complainant. Hence the prayer of the opposite party is to dismiss the complaint finding that there is no deficiency in service on the part of the opposite party along with adequate cost of litigation.
5. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A3. Ext. A1 is account statement from 01/03/2021 to 10/10/2021 issued by State Bank of India. Ext. A2 is statement of account issued by Bajaj FinServ. Ext.A3 is copy of letter issued by Bajaj FinServ to the complainant dated 27/08/2021. The document on the side of opposite party marked as Ext. B1 to B3. Ext. B1 is copy of special power of attorney. Ext. B2 is Statement of account issued by Baja FinServ in respect of customer loan account No. 5S9DFSGU018588. Ext. B3 is statement of account Bajaj FinServ in respect of loan account No. 5S9DPFGU017406.
6. Heard both sides, perused affidavit and documents. The following points arise for consideration.
- Whether there is deficiency in service on the part of the opposite party.
- Relief and cost.
7. Point No.1 and 2:-
The complainant and opposite party admit the availing loan from the opposite party. The complainant has stated that, he availed loan from the opposite party and paid Rs. 2997/- as down payment in advance. He further submits that his bank balance was insufficient to pay the EMI on third month i.e., in June 5th. But he remitted that amount on 09/06/2021 itself, Rs. 1565/- inclusive of the fine to the opposite party.
8. The grievance of the complainant is that the opposite party collected bouncing charges twice which is improper and not legally bound to pay to the opposite party. On the other hand, the opposite party contented that there were two loan accounts in favour of the complainant i.e., one for the mobile phone and another for insurance purpose. The submission of the opposite party is that twice the complainant defaulted the payment by not maintaining sufficient balance in his bank account to honour NACH mandate / auto debit which had issued by the complainant in favour of the opposite party. There is no document to show that the opposite party has realised more than twice the bouncing charges. If that be the fact, it is more reliable the contention made by the opposite party. The complaint is silent on availing two loans from the opposite party. He further admitted that he failed to maintain sufficient balance amount in his account. The complainant submitted that he paid the amount to the executive Mr. Navas of the opposite party on 09/06/2021 instead of 05/06/2021. That means the complainant defaulted the payment and thereby the bouncing charge was deducted from the account of the complainant. As per document produced by the opposite party the bouncing charge has been debited from the account on 07/06/2021 and on 06/07/2021. Hence it is right to hold that the opposite party has not deducted any amount which is not due to the opposite party. So, what can be inferred from the affidavit and documents of the parties that the complainant defaulted the payment as contented by the opposite party and the opposite party debited bouncing charge which the opposite party is legally entitled. So we find that there is no any sort of deficiency in service on the part of the opposite party and so the complainant is not entitled any relief as prayed, so this complaint stands dismissed.
Dated this 12thday of January, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A3
Ext.A1 :Account statement from 01/03/2021 to 10/10/2021 issued by State Bank of
India.
Ext.A2 : Statement of account issued by Bajaj Finserv .
Ext A3 : Copy of letter issued by Bajaj Finserv to the complainant dated 27/08/2021.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B3
Ext.B1 :Copy of special power of attorney.
Ext.B2 :Statement of account issued by Baja Finserv in respect of customer loan
account No. 5S9DFSGU018588.
Ext.B3 :Statement of account Bajaj Finserv in respect of loan account No.
5S9DPFGU017406.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
