Sri. G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The complainant is a retired Telephone Supervisor. While in service with the O.P. he had availed a HBA loan on the security of her house. The loan was cleared by deductions in her salary, the last such deduction being in the month of November 2003. The O.P. should have redelivered the title deeds of the house soon after the loan was cleared. But the O.P. failed to do so despite several requests and demands.<br /> 2. The complainant has come here on the ground that the act of the O.P. amounts to deficiency in service. The legal notice issued by the complainant did not fetch a proper reply, and he is anguished that the O.P. has not treated him, a former employee, properly.<br /> 3. The O.P. in his version has contended that the complainant being a former employee there is no element of service in their relationship and as such the complaint is not maintainable. <br /> 4. The O.P. further says that the complainant violated clause (vi) of the loan agreement due to which penalty of Rs.8,209/- was imposed on her.<br /> 5. From the above contentions the following points arise for our contention:-<br /> (a) Whether the complaint is maintainable?<br /> (b) Whether the complainant proves that the O.P. has rendered deficient service by not returning the documents of the house?<br /> (c) Whether the O.P. proves that the documents have been rightly withheld for non payment of penal interest of Rs.8,209?<br /> (d) What relief or order?<br /> 6. Our finding on the above points are as under:-<br /> Point no.5(a) : In the affirmative.<br /> Point no.5(b) : In the negative.<br /> Point no.5(c) : In the affirmative.<br /> Point no.6(d) : As per final order.<br /> REASONS<br /> <br /> 7. Point no.5(a):- It is strongly contended by the O.P. that the complainant is a former employee and there is no element of service involved in the employer – employee relationship. Reliance has been placed by the learned counsel for the O.P. on (1) Kedar Nath Misra Vs. U.O.I. & Others (1994(3) CPJ 119 (NCDRC)); (2) Mahendra Kumar Dalabehera Vs. State of Orissa & others (1992(3) CPJ 205 (Ori.SCDRC)); (3) Yogesh Kumar Vs. Silverline Holdings Pvt. Ltd. (1993(1) CPR 555 (Del.SCDRC)), etc. These decisions relate to the period prior to the amendment of the definition of “Service” under section 2(o). Now the definition of the word ‘Service” includes, but not, limited to, facilities in connection with banking, financing, insurance, transport ……. Where interest is collected for such financing, it takes the form of consideration and regardless of the fact that the transaction is between an employer and employee, it comes under the ambit of the Consumer Protection Act. Therefore, without going into the details of the decisions relied upon by the O.P., we conclude that the complaint is maintainable and answer the point in the affirmative.<br /> 8. Point no.5(b):- The complainant applied for a House Building Advance (HBA) of Rs.37,000/- from the O.P. in 1984 and the same was sanctioned on 4-8-1984. One of the terms and conditions mentioned in the sanction letter is that the loanee should insure the house at her own cost immediately after the construction and keep it insured until the loan is cleared.<br /> 9. Both the parties have submitted documents in support of their contentions. The O.P. has produced 3 letters to show how the complainant had to be reminded to renew the insurance of the house. The complainant has produced 8 insurance receipts. The loan was cleared in November 2003. Hence, there should have been 19-20 insurance receipts. From a letter dated 8-4-05 written by the office of the Chief General Manager, Bangalore it becomes clear that the complainant was informed that she was still got to pay Rs.8,209/- towards interest. After this letter, the O.P. wrote 2 more letters on 26-4-05 and 8-9-05 marking the copies to the complainant, asking her to produce the records pertaining to insurance. She did not produce the records to them. Nor has she produced them here. Unless she is able to independently prove that she has fulfilled all the terms and conditions of the loan, she can not allege any deficiency in service on the part of the O.P. The complainant appears to be taking advantage of her own wrong. Hence, we answer the point in the negative.<br /> 10. Point no.5(c):- The O.P. has been demanding Rs.8,209/- almost ever since the complainant sought return of documents. There is, no doubt, no detailed statement filed by the O.P. to show how they arrived at the arrears of Rs.8,209/-. But the complainant can not derive benefit from such non production. She has to prove her case independently.<br /> 11. Question may, also, arise whether the O.P. erred in not renewing the insurance or issuing a notice whenever the complainant failed to do so. However, it is not the dispute between the parties. When a party fails to discharge his obligation under an agreement, she can not point her finger at another to say that they did not do something, because there was no obligation on them either to renew insurance or issue notice.<br /> 12. The pay slip of the complainant for the month of November 2003 does not show any balance of loan. But that does not mean that the O.P. is not entitled to claim short recovery while excess recovery can be deficiency in service, unless the complainant proves by production of insurance receipts that their claim of Rs.8,209/- amounts to excess recovery, no deficiency can be attributed to the O.P. Hence, we answer the point in the affirmative, and proceed to pass the following order:-<br /> <br /> <br /> <br /> <br /> ORDER<br /> <br /> 1. Complaint is dismissed.<br /> 2. Parties to bear costs.<br /> 3. Give a copy of this order to both parties according to Rules.<br />