BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.491 of 2018

      Date of Instt. 27.11.2018

      Date of Decision: 09.12.2019

Er. Gopal Sharma, Chief Engineer-Enforcement, Punjab State Power Corporation Limited, The Mall, Patiala, R/o Greater Kailash, Near C. T. School, Jalandhar. 

..........Complainant

Versus

1.       Bajaj Finserv, Viman Nagar, Pune, through its Managing Director/Authorized Representative

2.       State Bank of India, Branch Shastri Market, Jalandhar, through its Branch Head

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. Chandandeep Singh, Adv. & Sh. Subodh Kumar, Adv., Counsels for the Complainant.

Sh. H. S. Kohli, Adv. Counsel for the OP No.1.

Sh. SKS Chhabra, Adv. Counsel for the OP No.2.

Order

Karnail Singh (President)

1.                This complaint has been filed by the complainant Er. Gopal Sharma, wherein alleged that the complainant was maintaining saving bank account No.5539357073 with OP No.2. Complainant is also consumer of OP No.1, vide account No.49806397. That on 05.05.2018, OP No.2 made a wrong debit of Rs.10,999/- from the account of the complainant in favour of OP No.1. The statement of account of the complainant depicting the entry of Rs.10,999/- crediting in favour of the OP No.1 by OP No.2 and on enquiry from OP No.2, it transpired that loan of Rs.32,997/- has been sanctioned in the name of the complainant, vide account No.438ECF69076805 by OP No.1. Complainant neither availed any loan of Rs.32,997/- nor purchased any item or gadget through OP No.1 nor signed any ECS mandate form, authorizing OP No.2 to debit the amount from account of the complainant in favour of OP No.1. No communication was made with complainant prior to sanctioning above loan or purchase by OP No.1 nor any SMS was sent on the registered mobile phone of the complainant apprising about the alleged loan or purchase as per settled procedure. The complainant never filled any loan form nor executed any loan documents nor provided OPs with documents or photo. The aforesaid transaction (part payment of Rs.10,999/- against the alleged loan/purchase of Rs.32,997/-) is totally illegal, without any authority, right or title. Despite protracted follow-ups, enquiries, letters, emails, legal notice, police complaint and protestations, OPs failed to redress the grievances of complainant and reverse the unauthorized transaction of Rs.10,999/- by crediting in the account of the complainant. Since, there was no positive outcome to the problem of the complainant by the OPs and apprehending further loss of money, the complainant was constrained to close the saving bank account No.55039357073 with OP No.2. Then complainant made complaints dated 07.05.2018 and 10.05.2018 through email and further, complaints were also made by the complainant through email dated 07.05.2018, 08.05.2015, 09.05.2018, 10.05.2018, but no reply of the email given by OP No.1 nor any reply given by OP No.2. The whole act and conduct of the OP is apparently deficiency in service as well as unfair trade practice, which gave cause of action to the complainant to file the instant complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.10,999/- to the complainant which has been wrongly debited from the account of the complainant without any right or authority and further, OPs be directed to award compensation for causing mental tension, agony and harassment to the complainant to the tune of Rs.50,000/- and litigation expenses of Rs.20,000/- as well as also directed to pay expenses of typing of Rs.1000/-.

2.                Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed reply, whereby contested the complaint by taking preliminary objections that the complainant is its existing customer and has initially in the month of July 2017 availed a Consumer Durable Loan Rs.76,000/-. The said loan was agreed to be repayable, vide 26 Equated Monthly Installments (EMI) of Rs.2924/-, out of which the complainant had paid 4 EMIs in advance and the balance amount was to be paid in 22 EMIs and out of that loan account, some amount as bouncing charges/late payment penalty charges of the said loan account is Rs.4950/- and the same is also getting reflected from the statement of account has been shown in the said statement of account. It is further pertinent to mention that as per records, in the month of March 2018, the complainant done one online transaction of Rs.32,997/- through EMI Card issued by the OP No.1. Before approving and releasing the loan amount, the OP No.1 for confirmation of the contract has send a caution message to the complainant on his mobile number, which is registered with the OP No.1, requiring the complainant not to share the OTP with anyone. However, the complainant, at his own risk and peril, had compromised the OTP and other details of his EMI Card with third party and due to negligent act of the complainant, the purchase transaction is done online on 31.03.2018 and on real time basis considering the credentials of the complainant, the loan stood booked vide LAN:438ECF69076805 in the name of the complainant. It is evident that OTP/s was only sent to the registered mobile number of the complainant and which was only known to the complainant. Unless and until the complainant compromised OTP with any other third party, no transactions could be effected and in such cases, complainant is solely liable for effecting the online transaction. It is submitted that, OTP SMS is being sent to every customer with an alert message that it is not supposed to be shared with anyone. The complaint is bound to maintain the confidentiality of the authentication details and cannot juxtapose the liability arising out of her negligence upon OP No.1 and further submitted that the complainant has himself shared the OTP to unknown caller and as such, the complainant has absolute liable for the consequences of her own acts and therefore, the complaint of the complainant is liable to be dismissed. It is further averred that the amount of Rs.10,999/- has been deducted from the account of the complainant on 05.06.2018 and 05.07.2018 is towards the EMI of the loan account No.438ECF69076805. Hence, there is no deficiency in service on the part of the OP No.1. On merits, the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

3.                OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that at the outset, the OPs denied each and every averments and allegations made in the complaint, save and extent to what is specifically admitted hereinafter. The complainant has suppressed material facts from this Forum and complaint is liable to be dismissed on this short ground and further alleged that the complainant is stopped by his own act, conduct, admission and omissions from filing the present complaint. Hence, the complaint is liable to be dismissed a further submitted that no cause of action has accrued to the complainant against the OP No.2 and even in the complaint, the true facts has not been mentioned. Hence the complaint is liable to be dismissed. On merits, it is admitted that the complainant was maintained his saving account in the bank of the answering OP and further admitted that a debit of Rs.10,999/- was made as per the instructions/mandate received from OP No.1. No overt act has been done by the answering OP. The answering OP was under obligation to honour the mandate received from OP No.1, with regard to debit of Rs.10,999/- from the account of the complainant. The answering OP has unnecessarily been dragged into litigation. The dispute with regard to the alleged transaction is between the complainant and OP No.1. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4.                The complainant filed rejoinder of both the written statements and categorically reasserted the entire facts as detailed in the complaint and denied those of the written statements.  

5.                In order to prove their respective case, both the parties brought on the file their respective documents alongwith their pleadings.

6.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

7.                From the sequel of facts as narrated in the complaint as well as written replies of both the OPs, it reveals that the instant complaint is not in regard to any dispute of previous loan of Rs.76,000/- was obtained by the complainant from OP No.1 for purchase LG refrigerator. The present controversy is only qua the second alleged loan of Rs.32,997/-, as alleged by OP No.1 in its reply that the same was again obtained by the complainant for purchase of some product and its EMI of Rs.10,999/- was deducted from the saving account of the complainant. It is further allegation of the OP No.1 that the complainant has himself shared the OTP with any third party and due to that fault on the part of the complainant, the said second loan of Rs.32,997/- was introduced in the name of the complainant and on the basis of alleged second loan, the complainant No.1 asked the OP No.2 to pay EMI of the loan account 438ECF69076805 of Rs.10,999/-  from the account of the complainant and also issued mandate and thereafter, the amount was debited from the account of the complainant to the account of the OP No.1.

8.                We find that the complainant sent numerous emails to OP No.1 as well as OP No.2, which are available on the file Ex.C-2 to Ex.C-10, but the OPs never bother to give reply of any of the above said emails, which shows that there is some negligence, hanky-panky on the part of the OPs, if virtually any ECS form was signed by the complainant or given mandate or instructions to OP No.1 and OP No.2 to deduct the such amount, then the reply of the emails of the complainant Ex.C-2 to Ex.C-10 is required to be given by the OPs. There is chances that any ECS form or mandate was obtained by the OP No.1 in a previous loan case of Rs.76,000/-and the same is manipulatedly used the same by issuing a fake loan amount in the name of the complainant of Rs.32,997/-, if this amount is not fake one, then what was the hitch to the OP No.1 and OP No.2 to give reply of the said emails by explaining to the complainant that you have already submitted ECS Form and also given mandate, even the same documents are at the liberty of the OPs to produce in the Forum, but same has not been produced. So, it means the complainant has never gave any instructions or never issued ECS form or mandate to the OPs for deducting the amount of Rs.10,999/- from the account of the complainant and as such, we find that it is collective negligence of OP No.1 and OP No.2 for withdrawing the amount from the account of the complainant and accordingly, we find that there is apparently unfair trade practice on the part of the OPs and therefore, OPs are liable to compensate the complainant as well as OP No.1 is liable to return the amount of Rs.10,999/- to the complainant with interest.

9.                In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to reimburse the said EMI amount of Rs.10,999/- to the complainant with interest @ 12% per annum from the date of wrong withdrawal i.e. 05.05.2018, till realization. Further, both the OPs are directed to pay compensation to the complainant, to the tune of Rs.50,000/- for causing mental tension and harassment to the complainant and further, both the OPs are directed to pay litigation expenses of Rs.10,000/-. We like to make it clear that the compensation amount and litigation expenses amount, which comes to Rs.60,000/-, this amount will be paid by OP No.1 and OP No.2 i.e. half by each i.e. Rs.30,000/- each. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

09.12.2019                                        Member                          President