IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 16th day of November 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 28/2020 (Filed on 05-02-2020)
Petitioner : Udayasankar K.K.
Maliyekkal House,
Manikandapuram,
Vakathanam P.O.
Kottayam - 686538
Vs.
Respondents : 1) Bajaj Finance Ltd.
1st Floor, T.B. Road,
Varathrapallathu Building,
T.B. Road, Kottayam.
(Adv. Jaison Paliyil)
2) Oxygen Digital Shop,
107 A, 107B Kinattummootil Building,
M.C. Road, Nagampadom.
Kottayam - 686006
(Adv. Arathi Karjet, Adv. Saji Mathew,
Adv. Denu Joseph and Adv. Bibin Babu)
O R D E R
Smt. Bindhu R. Member
The complainant purchased a mobile phone from the 2nd opposite party with the finance of the 1st opposite party for an amount of Rs.11,605/- . On the next day of purchase of the same the complainant received an sms from the 1st opposite party that around 1000 would be debited from his account towards the price of the phone. On the same day itself the complainant approached the 2nd opposite party and the person authorized of the 1st opposite party and enquired about this. The said person assured him that he would have to pay only Rs.7,238/- towards the EMI and no extra amount would be debited. The said person informed him that the extra amount was of some policy or other product of the 1st opposite party and the complainant informed him that he did not want any such policy or product. The staff of the 1st opposite party agreed to cancel that requirement but even after 2 years, it was not cancelled. The complainant paid Rs.1701,1671. 1671,1671 towards 4 EMIs. The company person said the balance was only Rs.524/-. The complainant kept Rs.700/- in his account for honoring the amount but he again received a message of Rs.1671/- as EMI. He called the agent of the 1st opposite party but he did not answer his call. When the complainant contacted the 2nd opposite party, they informed him that there was no such person working with them. Thereafter he approached the 1st opposite party office with the help of the Manager of the 2nd opposite party when he was asked to give a request in their format. The complainant submitted a request. But later on enquiry he was informed that no such cancellation could be done. Thus the complainant understood that the 1st opposite party might have collected the excess Rs.2818/- from him for some undue gain and hence the complaint is filed for the compensation for the damages suffered by the complainant due to the deficiency in service on the part of the 1st opposite party.
Notice was duly served to the opposite parties and both the opposite parties appeared and filed version.
The opposite party 1 contended that the complaint is false, frivolous and filed with malafide intention and hence not maintainable. The 1st opposite party admits that due to some inadvertent technical error on the part of the opposite party, the loan towards insurance of the mobile phone was booked in the books of account of this opposite party vide loan account no 451DFSEZ717710. After receiving request from the complainant the 1st opposite party initiated the insurance cancellation process with insurance company and after cancellation of said insurance policy an amount of Rs.936/- was refunded which was collected extra towards EMI to the account of the complainant on 06.04.2020.The complainant has not approached the Commission with clean hands.
The 1st opposite party contended that the complainant has paid only 2 EMIs in advance amounting to Rs.2,874/- and agreed to pay the balance 8 EMIs
w.e.f.05.10.19. The complainant has provided auto debit mandate for direct deduction of EMIs from his bank account. But EMIs 5,6 and 7 were not cleared with reason “insufficient funds” as this complainant has not maintained sufficient balance in his bank account. The 6th EMI has later been paid by the complainant on 7.03.2020. The above said loan account of the complainant is still active with overdue amount of Rs.4,640/- which includes 2bounced EMIs 2,874 plus bouncing charges of Rs.1,362/- (Rs.454 per EMI x 3)plus late payment penalty of Rs.404/-. The opposite party has admitted that prior to the cancellation of the insurance loan account, the total EMIs which has been collected from the complainant is Rs.1,671/- (ie Rs.1,437 + Rs.234 towards the insurance loan account). Further upon receipt of communication from the complainant regarding
the cancellation of the said loan, the OP has initiated the insurance cancellation process with insurance company and after cancellation of the said insurance policy an amount of Rs.936/- which was collected through EMIs was refunded back in the bank account of the complainant on 06.04.2020 vide UTR no CMS1455792348.
There is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed as the complainant has not approached the commission with clean hands. The complainant has to pay the over dues and the 1st opposite party prays for a direction to the complainant to pay the overdue amount.
The 2nd opposite party also filed version separately contending that the complainant has no allegation against the 2nd opposite party as it only sold a mobile phone according to the requirements of the complainant. The 2nd opposite party has never been into the business of financing. For the convenience of the customers the financing companies depute their agents with all dealers. It was on complainant’s request the 2nd opposite party connected the representative of the finance company and thereafter the product was purchased by the complainant based on the understanding arrived between them. The alleged deficiency of service against the other opposite party is in no way connected with the 2nd opposite party and there is no allegations against the 2nd opposite party. The 2nd opposite party acted as a prudent dealer and there is no deficiency of service on the part of the 2nd opposite party.
The complainant filed proof affidavit along with 4 documents which are
marked as exhibit A1 to A4. The complainant was examined as Pw1.
The 1st opposite party filed Exhibit B1 to B3 vide proof affidavit.
On the basis of the facts and evidence we frame the following points;
1. Whether there is any deficiency in service on the part of either of the opposite
party?
2. If so what are the reliefs?
Point No.1 and 2
1. The complainant’s case is that the 1st opposite party had charged extra amount for the mobile he purchased from the 2nd opposite party by way of EMIs which is unlawful and liable to be compensated whereas the 1st opposite party contended that they had already admitted that they had realized Rs.936/- towards the EMI of insurance which the complainant did not opt. The 1st opposite party had already remitted the amount back to the complainant and hence there is no deficiency in
service on the part of the 1st opposite party.
2. The complainant purchased the mobile phone of Rs.11,437/- to be paid in 10 equal installments of Rs.1437/- each out of which he had paid two EMIs in advance. For the subsequent 4 EMIs, instead of Rs.1,437, the opposite party collected Rs.1,671/- for 4 months. Upon challenge by the complainant, the mistake been noted and the 1st opposite party rescheduled the loan amount avoiding the insurance coverage. The 1st opposite party had returned the Rs.936/- which was collected extra on 06.04.2020.
3. But as per Exhibit B2, it is seen that the opposite party had refunded the amount of Rs.936/- they had already collected along Rs.202/- for the dishonor of cheque on two times. The said amount was collected towards the bouncing charge of the cheques for the amounts which was not supposed to have been paid by the complainant as he had not applied for an insurance.
4. The act of the 1st opposite party to collect Rs.936/- extra from the complainant and charge Rs.404/- as penal charge though by mistake is a deficiency in service and unfair trade practice. The layman consumers if not aware of these things, may not challenge. Thus the 1st opposite party is getting a chance to make undue gain. This is an unfair trade practice also.
5. Moreover, the complainant has got a bad mark in his banking transactions due to the unwanted bouncing of cheques etc. We find that such activities of a financial institution like the 1st opposite party would cause immense mental agony and hardship to the consumers like the complainant herein. The 1st opposite party should be keen in serving its customers by protecting them from indulging in unwanted payments. The 1st opposite party has issued an insurance policy without the knowledge of the complainant and charged extra amount towards the insurance policy. This act of the 1st opposite party is an unfair trade practice, which should be penalized.
6. The complainant is bound to repay the loan amount in the agreed EMIs and for each bouncing the bouncing charge also would be levied as per the contract. But the 1st opposite party is not entitled to realize more amount than agreed.
7. As from the documents itself it is found that the 1st opposite party has committed unfair trade practice and been deficient in the service given to the complainant, points no 1 and 2 are found against the opposite party no.1. As the 2nd opposite party has not been involved in the financing activity, it is found that the 1st opposite party is liable to compensate the complainant for the loss and mental agony suffered by him. Hence we allow the complaint and pass the following order.
(1) The 1st opposite party is directed to give Rs.5,000/- as compensation and Rs.1000/- towards litigation cost.
The Order shall be complied within 30 days from the date of receipt of copy of this Order. If not complied as directed, the amounts will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 16th day of November, 2022
Smt. Bindhu R. Member
Sri. Manulal V.S. President
Sri. K.M. Anto, Member
Appendix
Sworn statement from the side of complainant
Pw1 – Udayasankar K.K.
Exhibits marked from the side of complainant
A1 – Copy of ECS mandate
A1(a)- Copy of ECS mandate
A2 – Copy of bank statement
A3 – Application – cum-declaration at to the physical witness (Form No.1)
A4 – Copy of SBI message
Exhibits marked from the side of opposite party
B1 – Copy of loan account statement by 1st opposite party
B2 - Copy of loan account statement by 1st opposite party
B3 – Copy of service request
By Order
Sd/-
Assistant Registrar
