By Sri. MOHANDASAN.K, PRESIDENT
The complaint U/s 35 of the Consumer Protection Act 2019.
1.The complaint in short is as follows: -
The complainant has got a bank account with the opposite party and his account No. is 67018574898. The opposite party debited Rs. 20,800/- in two instalments of Rs. 10,400/- each on 3rd March 2020 by creating a mysterious standing instruction without consent and knowledge of complainant. The fact came to the notice of the complainant on 09/03/2020 while he attempted to withdraw Rs. 21,000/- from his account for the treatment of his aged father. The complainant approached the bank over phone on 09/03/2020 itself and through the consumer redressal website on 12/03/2020 and requested them to see the matter and credit the entire amount of Rs. 20,800/- to his SB account. The opposite party realising the grave mistake credited Rs.12,944/- instead of Rs.20,800/- on 12/03/2020 in to his account. Thereafter the complainant lodged a complaint with the Banking Ombudsman on 13/04/2020 demanding direction to the bank to reverse the entire amount of Rs.20,800/- to his account and compensate the complainant for mental agony, harassment suffered and financial loss incurred by the complainant.
2. On 02/06/2020, the Banking Ombudsman as per order, the bank has compensated the complainant with an amount of Rs.12,000/-, but omitted to consider the balance amount of Rs.7,856/- which was due to the complainant. He was also directed to acknowledge the same and give feedback on the transaction on the same date itself. The complainant had given his dissenting note on the decision of Banking Ombudsman vide email dated 02/06/2020. Thereafter the banking Ombudsman closed the complaint without contemplating on disagreement of the complainant and permitting complainant to approach any other forum for redressal of his grievance if any.
3. The complainant caused personal notice to the bank vide email on 01/07/2020 with a copy to the Chairman of the Bank requesting them to credit the balance amount of Rs.7856/- to his account and also to compensate him for the mental agony and financial loss but it was turned futile.
4. The submission of the complaint is that as per guidelines of Reserve Bank of India “Standing Instructions” is a debit instruction set to be executed on future dates during a period specified by the customer (Not by the bank) at a time interval specified by the customer. It is an instruction of a bank account holder gives to his/her bank to pay a set amount at regular intervals it to another’s account. The opposite party bank has blatantly violated this banking norm by creating a “Standing instructions” on its own without concurrence and any sort of intimation to the complainant .
5. The prayer of the complainant is to direct the opposite party to credit the balance amount of Rs.7856/- with interest to the account of complainant and to pay Rs.50,000/-for the mental agony, for maligning the reputation of the complainant by accusing him as a borrower who has breached commitment and also pray for Rs.50,000/- towards financial loss incurred by him for running from pillar to post to set right the issue.
6. On admission of the complaint notice was issued to the opposite parties and on receipt of notice, the opposite parties entered appearance and filed version denying the entire averments and allegations in the complaint.
7. It is submitted that the complainant along with his wife Mrs. Mini Jayakrishnan had availed a housing loan of Rs. 11 lakh from the opposite party bank and as per the agreement the interest rate opted by them was flexible. The loan was availed in the month of October 2006. The rate of interest was 8.75.% per annum compounded monthly calculated on the basis of daily balance of the amount with the right to change the rate of interest by the bank from time to time. The EMI to be paid by the customer were also be varied as per the change effected in the interest rate. The opposite party stated the table of the interest rate applicable during the period 10/10/2006 to 16/02/2020 as follows: -
10/10/2006 - 8.75
01/01/2007 - 9.25
15/02/2007 – 9.75
08/03/2007 – 9.25
09/04/2007 – 9.75
01/07/2008 – 10.25
04/08/2008 – 10.75
10/11/2008 – 10.00
01/01/2009 – 9.50
01/07/2009 – 9.00
05/08/2009 – 9.25
03/09/2010 – 9.50
11/10/2010 – 9.75
01/12/2010 – 10.00
03/01/2011 – 10.25
16/02/2011 – 10.50
09/05/2011 – 11.00
05/07/2011 – 11.25
08/08/2011 – 11.75
26/09/2011 – 12.25
05/07/2012 – 10.25
10/07/2012 – 11.25
08/10/2012 – 11.00
16/03/2015 – 10.90
05/10/2015 – 10.70
20/12/2016 – 10.20
16/02/2017 – 8.55
16/02/2018 – 8.20
16/02/2019 – 8.80
16/02/2020 – 8.10
8. The complainant was no regular in making the re payment in accordance with the changes in the rate of interest, the dues accumulated. The opposite party submitted that in such contingencies the bank is having all the right and lean on his account therein the bank. The dues on the basis of the standing instructions the recovery was affected by the bank/system on 03/03/2020. It cannot be considered as an unauthorised transaction or an unfair trade practice coming under the purview of the Consumer Protection Act. The bank had opted its lean on the said account to transfer the amount from his SB account to his loan account.
9. The complainant approached the bank and on his request bank had cancelled the standing instructions and Rs. 12,944/- was reversed to the saving account of the complainant. Even after the reversal the loan account shown arrears of Rs.7856/- and the said amount was not reversed in order to adjust the same towards the dues therein the loan account and towards the expenditure met by the bank being different charges.
10. The computer/system recovery of Rs. 20,400/- was effected on 03/03/2020 and the customer raised the complaint for the said recovery on 09/03/2020 and within a period of 3 days an amount of Rs. 12,944/- was reversed by the bank. So the submission of the opposite parties is that the bank has given much importance to the complainant and also provided best service to the customer. Hence the submission is that the bank had acted promptly and there is no deficiency of service on the part of the bank/ bank officers.
11. The customer even then approached the Banking Ombudsman with the said complaint alleging mental agony etc. The banking ombudsman in its award directed the bank to pay an amount of Rs.12,000/- towards the mental agony to the complainant. Even though the bank is having lean on the amounts therein the bank account of the complainant for the dues due to the bank, the bank as a gentleman approach, to close the said complaint of the customer transferred the amount of Rs. 12,000/- to the complainant’s account and the said fact was informed to the complainant also. The complainant has withdrawn the amount on 19/07/2020 and the same will prove that the complainant accepted the award of Ombudsman. The complainant filed this complaint on 11/08/2020 which is double Jeopardy. The complaint is devoid of merits, bonafides and liable to be dismissed in limine. The opposite party also submitted that the transferring some amount which is overdue from a customer to the bank from his account in operation to his loan account where in the dues are mounted up due to the non-payment of the EMI dues in the loan account by the party cannot be considered as an unfair trade practice or deficiency in service. It is the duty cast upon the diligent officers to recover the dues due to the bank which is public money. So, the prayer of the opposite parties is that complaint is not maintainable before the Consumer Commission.
12. The complainant and opposite parties filed affidavits and documents. The documents on the side of complainant marked as Ext. A1 to A21. The documents on the side of opposite parties marked as Ext. B1 & B2. Ext. A1 is copy of Accounts statements of Account No. 00000067018574898 from 01/03/2020 to 30/04/2020, Ext.A2 is copy of letter of request by complainant to opposite parties, Ext. A3 is copy of complaint before Ombudsman dated 13/04/2020, Ext.A4 is copy of order of Banking Ombudsman to pay Rs. 12,000/-, Ext.A5 is a copy of dissent notice to Ombudsman by complainant, Ext. A6 is copy of letter given by Ombudsman to complainant permitting to approach for proper forum, Ext. A7 copy of email to bank by complainant dated 1/07/2020, Ext. A8 is a Copy of letter by bank dated 22/07/2020, Ext. A9 is a copy of statement submitted by bank before Ombudsman , Ext. A10 is a copy of agreement dated 10/10/2006, Ext. A11 is a revised payment schedule – Rs.10,397/-, Ext.A12 is a copy of relevant page revealing revised EMI, Ext.A13 is a Provisional Home loan interest certificate dated 31/12/2013, Ext.A14 is a Provisional Home loan interest certificate dated 31/12/2015, Ext.A15 is a Provisional Home loan interest certificate dated 06/01/2015, Ext.A16 is a Provisional Home loan interest certificate dated 14/01/2020, Ext. A17 is a provisional Home loan interest certificate dated 31/12/2020, Ext.18 is a Copy of Proceedings of the Managing Director of Mathrubhumi Printing & Publishing Company Limited dated 27/02/2012, Ext. A19 Employment certificate issued by Mathrubhumi Printing & Publishing Limited dated 25/08/2021, Ext.A20 is Rent Agreement, Ext.A21 is a Receipt for House rent dated 11/01/2020. Ext.B1 is Accounts Statements from 01/04/2020 to 31/03/2021 related to account No.00000067018574898, Ext.B2 is Sanction letter of housing loan dated 09/10/2006.
13. Heard both sides perused affidavits and documents and notes of arguments. The following points arise for consideration:-
- Whether there is jurisdiction to entertain the complaint by this Commission?
- Whether there is unfair trade practice on the part of opposite parties?
- Whether there is deficiency in service on the part of opposite parties?
- Relief and cost?
14.Point No:1
Though the opposite parties not challenged the jurisdiction of this Commission to entertain the complaint in the version, but in the affidavit the opposite parties have contended that no cause of action arose within the jurisdiction of this Consumer Disputes Redressal Commission. The contention is that the address of the complainant shows that he is a resident of Thrissur District and the bank is also functioning at Thrissur district. The transaction also effected from the bank at Thrissur district. But it can be seen that the present complaint is filed by the complainant on 17/8/2020 which is after the commencement of new Act Consumer Protection Act 2019. Section 34(d) of the Consumer Protection Act 2019 provides jurisdiction to file a complaint where the complainant resides or personally works for gain. Documents Ext.A18,19,20 and 21 shows that complainant working as Regional Manager of Mathrubhumi Publication at Kottakkal unit and he was permanently residing at Kottakkal. So the question of jurisdiction does not arise and the first point answered accordingly.
15. Points No.2 & 3
There is no disputes that the complainant has got an account with the opposite parties and also there is no disputes that he availed housing loan from the opposite parties. There is also no disputes that the opposite party Bank debited an amount of Rs.20,800/- in two instalments of Rs.10,400/- each on 03/03/2020 from the account of complainant. The complainant contented that action of the opposite party was without his consent and knowledge. There was no standing instruction from his side to do so. He alleges it was an unfair trade practice and which came to his notice on 09/03/2020 while he attempted to withdraw Rs. 21,000/- from his account for the treatment purpose of his father.
16. The opposite parties contented that the complainant and his wife had availed a housing loan of Rs. 11,00,000/- and the interest rate opted by complainant was flexible. During the time of availing loan, rate of interest was 8.75% per annum compounded monthly calculated on the basis of daily balance of the amount with the right to change the rate of interest by the bank from time to time. The complainant and his wife were not regular in making the repayment in accordance with the changes effected in the rate of interest from time to time. Hence the dues accumulated, in such contingencies the bank is having all the right and lean on the account of the customer maintaining with the bank. According to opposite parties, towards the dues on the basis of standing instructions the recovery was affected by the bank/system on 03/03/2020. On 03/03/2020 the instalments dues and interest including other expenditure up to 29/02/2020 which was due in the said account was transferred by the system. Bank is having lean in any of his account therein the bank towards the dues in any of his loan account. So, the contention is, it cannot be considered an unauthorised transaction or an unfair trade practice coming under the purview of the Consumer Protection Act.
17. So it can be seen that the opposite parties are admitted that the bank had effected recovery of the amount on 03/03/2020 from the account of the complainant. The complainant contented that there is no standing instructions from his side as stated by the opposite parties. The right of lean of the opposite parties over the account of the complainant is not disputed by the complainant. But the question of extend of lean arises in this complaint. The opposite party had contented the complainant and his wife was not regular in making the repayment in accordance with the changes effected in the rate of interest from time to time. But the opposite parties have not produced any document to show that the complainant and his wife were irregular in making the repayment as alleged. It is an admitted fact the loan was availed to the complainant and his wife in the year 2006 October. The present issue arises only after 14 years of the housing loan. If the allegation of the opposite parties was right the bank could have taken steps to right set the account of the complainant. So, we cannot find any merit in the contention of the opposite parties that the complainant was irregular in making the repayment.
18. The contention of the opposite parties was that there was standing instruction by the complainant to recover the amount as did by the opposite parties. It is also can be seen that there is no documents to establish the said contention by the opposite parties.
19. The bank has got a contention that they have got lean in any his account therein the bank towards the dues in any of his loan account. The question of lean over the account arises when there are dues as established. Even without establishing that there was due from the side of complainant, the opposite parties are not entitled to exercise right of lean over the account of the complainant. The lean of the opposite parties is limited up to the liability and which is the discretionary power of account holder. So, the transaction without establishing arrears or due by the opposite parties, the exercise of lean and there by recovery is not less than unauthorised transaction or an unfair trade practice coming under the purview of Consumer Protection Act.
20. In this complaint, the complainant immediately brought the issue to the notice of the bank, the opposite parties did not correct the mistake. The total amount recovered from the account of the complainant was Rs.20,800/- but the bank realising the mistakes credited only Rs.12,944/-deducting Rs.7,856/-. Even at that time the opposite parties did not try to convince the complainant that there were dues from the side of complainant. In the absence of such a clarification from the side of opposite parties it was not proper to credit the amount of Rs.12,944/- after deducting Rs.7,856/-. So, we find that act of the opposite parties as deficient one and there is deficiency in service on the part of the opposite parties.
21. The opposite parties has got a contention the complainant gracefully accepted the award of banking Ombudsman and so the claim before the Commission is a double Jeopardy. But it can be seen that the complainant has categorically disagreed with the award and he was given permission to approach before any authority for the redressal. So, there is no merit in the contention of the opposite parties that the complainant gracefully accepted the award of ombudsman and the complaint here in is double jeopardy.
22. It can be seen as stated by the opposite parties, the diligent officers of the Bank were exercising their duties towards the Bank by transferring the money which is overdue from a customer to the bank since it is a public money. But it can be seen that the complainant is also part of public and the opposite parties was dealing the money belongs to the public including complainant. The exercise of power and duty to be done in an abundant caution and care. The callous act of the opposite parties in this complaint caused for litigation which could have avoided by the opposite parties. The opposite party was duty bound to inform by the complainant about the arrears. It can be seen that there was no document to establish standing instructions from the complainant as claimed by the opposite parties and so the act of the opposite parties was arbitrary in nature and exceeding the limits. So we find that the act of the opposite parties as unfair and there is deficiency in service, we answer points No.2 and 3 are accordingly.
23. Point No.4
The complainant came to know the unfair transaction of opposite parties only on 09/03/2020 while he was attempting to withdraw Rs.21,000/- from his account for the treatment of his aged father. In effect the complainant was deprived of spending money from his own account towards the treatment of his father on account of the unfair and deficient service of the opposite parties. It is to be noted that a customer can have an account with savings and also loan transaction with the same bank. The loan transactions are strictly on specific conditions of loan agreement. In such a situation an account holder should not be deprived his financial movement without sufficient and satisfactory reasons. Any improper, unfair practice cause much hardships and inconvenience to the customer public. In this case the complainant was prompt in payment of his loan transactions. But without informing the complainant, consumer certain amount has been debited from his account which he was meant to avail during the treatment of his aged father. No doubt the act of the opposite parties caused much hardship and inconvenience and also financial loss to the complainant. The complainant reasonably approached the opposite parties to settle the disputes honestly but the opposite parties did not opt for the same. So, we find the complainant is entitled to credit the amount which is balance in the transaction. The complainant also entitled for the compensation for the hardship, inconvenience and mental agony which he suffered. He is also claimed compensation on account of financial loss incurred by him from March 2020 onwards to set right the issue during the covid pandemic, which was at its peak.
24. In the light of the above facts and circumstances we allow the complaint as follows: -
- The opposite parties are directed to credit the balance amount of Rs. 7856/-(Rupees Seven thousand eight hundred and fifty six only) with reasonable interest of 9% from 03/03/2020 till crediting the amount.
- The opposite parties are directed to pay Rs.1,00,000/-(Rupees One lakh only) to the complainant on account deficiency in service and unfair trade practice on the part of opposite parties and thereby caused inconvenience, hardships, mental agony and financial loss caused to the complainant.
- The opposite parties are also directed to pay Rs.20,000/-(Rupees Twenty thousand only) as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled for interest at the rate of 12% per annumfor the above said entire amount till realisation from the date of this order.
