KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.294/2010
JUDGMENT DATED 23/11/2010
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
1. The Canara Bank,
Head Office, M.G.Road,
Bangalore, reptd. by its
Managing Director.
2. The Canara Bank, -- APPELLANTS
Thirunakkara Branch,
Kottayam, repts. By its
Branch Manager.
(By Adv.P.Balakrishnan)
Vs.
1. C.K.Gopakumar, Proprietor
Rohit Motors,
Thellakom.P.O,
Kottayam.
2. The Director, -- RESPONDENTS
Khadi & Village Industries Commission,
Gramodaya, M.G.Road,
Thiruvananthapuram.
(R1 by Adv.D.R.Rajesh & R2 by Adv.V.Suresh kumar)
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellants were the opposite parties 1 and 2 and respondents 1 and 2 were the complainant and third opposite party respectively in the complaint in CC.No.156/09 on the file of CDRF, Kottayam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in not sanctioning the subsidy of Rs.1,25,000/- to the complainant. It was further alleged that there was deficiency in service on the part of the second opposite party/Canara Bank, Thirunakkara, Kottayam in submitting the relevant documents to the third opposite party Khadi and Village Industries Commission to sanction the subsidy amount of Rs.1,25,000/- in favour of the complainant. According to the complainant he did not get the subsidy of Rs.1,25,000/- because of the deficiency in service on the part of the second opposite party. Thus, the complainant claimed the subsidy amount of Rs. 1,25,000/- with compensation of Rs.50,000/- and cost of Rs.5000/-.
2. The opposite parties entered appearance and that the first and second opposite parties did not file any version in CC.156/09. The third opposite party filed written version denying the alleged deficiency in service on the part of the third opposite party. It was contended that there occurred delay on the part of the opposite parties 1 and 2 in submitting the claim for margin money and that the time stipulated for submitting the claim application for the margin money has been lapsed. It is further contended that the claim papers received have been forwarded to the zonal committee for consideration and no decision is taken so far by the zonal committee.
Thus, the third opposite party prayed for dismissal of the complaint filed against them.
3. Before the forum below, Exts.A1 to A3 documents were produced from the side of the complainant. No evidence was adduced from the side of the opposite parties. On an appreciation of the facts, circumstance and evidence on record, the forum below passed the impugned order dated 21st April 2010 directing the second opposite party to pay compensation of Rs.5000/- with cost of Rs.2000/- to the complainant. It was also directed that the complainant need not pay the subsidy amount of Rs.1,25,000/- and that the second opposite party will be at liberty to take the subsidy amount in the event the same is granted by the third opposite party. The second opposite party was directed to pay the compensation and cost within one month from the date of receipt of copy of the order, failing which the second opposite party is made liable to pay interest at the rate of 9% per annum till realization. It is against the said order the present appeal is filed by the opposite parties 1 and 2 (Canara Bank).
4. For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the forum below in CC.No.156/09.
5. There is no dispute that the complainant approached the second opposite party Canara Bank, Thirunakkara Branch, Kottayam for availing loan of Rs.10,00,000/- with the financial assistance of the third opposite party Khadhi and Village Industries Commission. The third opposite party assured the complainant subsidy of 25% of the loan amount. The third opposite party sanctioned loan of Rs.5 lakhs for conducting a workshop for livelihood of the complainant. The aforesaid sanctioned loan of Rs.5 lakhs was granted by the second opposite party Canara Bank, Thirunakkara Branch, Kottayam. The loan amount was released to the complainant by the third opposite party through the second opposite party with an interest at the rate of 13.6 % per annum. The complainant has also executed a mortgage deed mortgaging his property. The complainant will get the subsidy of 25% from the third opposite party only through the second opposite party. Thus, the complainant was entitled to get a sum of Rs.1,25,000/- as subsidy from the third opposite party Khadhi and Village Industries Commission.
6. Ext.A1 copy of the loan application and Ext.A2 loan sanction memorandum would support the case of the complainant regarding the loan applied for and the loan sanctioned by the third opposite party through the second opposite party. There is no dispute regarding the entitlement of the complainant for subsidy of Rs.1,25,000/- being 25% of the loan amount of Rs.5 lakhs. Third opposite party categorically contended that the subsidy known as margin money will be sanctioned by the third opposite party only on getting the application through the bank which sanctioned to the loan the complainant. It is also the definite case of the third opposite party that the margin money claim application should be forwarded within 3 months from the date of release of the first instalment of the loan by the financing branch of the bank to the Nodal Branch of the concerned bank at the state/regional level and the Nodal Bank is bound to forward the same to the third opposite party within 15 days and on getting the said application from the Nodal Branch of the Financing Bank, the subsidy will be released or sanctioned. Admittedly, in this case the second opposite party, the Financing Branch namely, failed to submit the margin money claim application within the stipulated time. Ext.A3 letter dated 17.1.08 would make the position more clear. A3 letter would make it abundantly clear that there was delay on the part of the second opposite party in forwarding the margin money claim application with the necessary documents. It was only because of the said delay on the part of the second opposite party in forwarding the necessary papers resulted in non-sanctioning of the margin money (subsidy) of Rs.1,25,000/- to the complainant. So, the forum below is perfectly justified in permitting the complainant to close the loan account with the second opposite party excluding the subsidy (margin money) amount of Rs.1,25,000/-. It is to be noted that the complainant Gopakumar has been paying interest on the margin money of Rs.1,25,000/- till the date of closure of the loan account. Thus, the complainant suffered financial loss and inconvenience on account of the lapse or negligence on the part of the second opposite party. The Forum below has rightly directed the second opposite party to pay Rs.5000/- as compensation to the complainant with cost of Rs.2,000/-. So, the impugned order passed by the forum below is to be upheld.
7. The second opposite party (second appellant) has got a case that there was no deficiency in service on the part of the second opposite party as the forwarding of the margin money claim application cannot be treated as a service as defined under Section 2 (i) (o) of the Consumer Protection Act, 1986. It is to be noted that the complainant availed the service of the second opposite party/Canara Bank, Thirunakkara Branch, Kottayam by availing loan amount of Rs.5 lakhs from the second opposite party/bank. The complainant as consumer availed the said service of the second opposite party in connection with the availing of loan of Rs.5 lakhs. Section 2 (i) (0) of the Consumer Protection Act defines service. “It means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with the banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.” The aforesaid definition would make it clear that the service of any description which is made available to a consumer in connection with banking or financing can be considered as service. In the present case on hand, the complainant availed the service of the second opposite party for availing the loan of Rs.5 lakhs. The aforesaid loan was availed through the third opposite party Khadi and Village Industries Commission. The loan was availed by the complainant with the defiinite understanding that the complainant/consumer is entitled to get a subsidy of 25% of the loan amount. Thus, the loan transaction would make it clear that the complainant was entitled to 25% of the loan amount as subsidy/margin money. It was incumbent upon the financing branch namely; the second opposite party/bank to forward the margin money claim application with necessary papers to the third opposite party Khadi and Village Industries Commission through the nodal branch of the second opposite party/bank. Thus, the service availed by the complainant would include the forwarding of the margin money claim application by the second opposite party to the third opposite party Khadi and Village Industries Commission. It is to be noted that the complainant would not get the margin money or subsidy amount without the junction of the second opposite party. In other words, for getting the margin money/subsidy amount, the margin money claim application is to be forwarded to the third opposite party Khadi and Village Industries Commission through the second opposite party the financing branch of the bank. Thus, it can be concluded that the complainant availed the loan amount of Rs.5 lakhs with the understanding to get a sum of Rs.!,25,000/- as subsidy from the Khadi and Village Industries Commission and that for getting the said subsidy the application is to be forwarded by the second opposite party with their approval. It is definite and certain that the complainant availed the service of the second opposite party/bank for getting the loan amount including the subsidy/margin money. Admittedly, the second opposite party failed in forwarding the margin money scheme application with necessary papers and it resulted in not getting the subsidy/margin money to the complainant. Thus, there was deficiency in service on the part of the second opposite party in rendering service to the complainant. The forum below has rightly directed the complainant to close the loan account excluding the subsidy/margin money of Rs.1,25,000/-. The forum below has also directed the second opposite party to pay compensation of Rs.5,000/- with cost of Rs.2,000/- for the deficiency in service on the part of the second opposite party.
8. Appellants (opposite parties 1 & 2) relied on the decision rendered by the State Commission, Haryana, Chandigarh in Haryana Financial Corporation of Chandigarh Vs. M/s. Jamna Dass Cotton Mills of Hansi and Director of Industries, Haryana Vs. M/s. Jamna Dass Cotton Mills of Hansi reported in II-1994 (1) CPR 311 and argued for the position that the service for getting subsidy cannot be treated as service as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986 and that the complainant cannot be considered as a consumer who availed the service of the opposite party/bank for getting subsidy/margin money from the Khadi and Village Industries Commission. A close reading of the aforesaid decision rendered by the Haryana State Commission would make it clear that the facts and circumstances of the said case are entirely different from the facts of the present case on our hands. In the aforesaid reported case, the subsidy was to be granted by the Government and in that case the government had stopped the subsidy. So, the Financial Corporation had no role in granting the subsidy to the consumer therein. In such a situation and circumstance it was held that the consumer therein had not availed any service of the Financial Corporation for getting the subsidy. But in the present case on hand, it was the duty cast upon the opposite party/bank (Canara Bank) to submit the margin money claim application with necessary papers to the Khadi and Village Industries Commission through the nodal branch of the Canara Bank. There was an understanding between the complainant/consumer and the opposite party/Canara Bank to forward the margin money claim application to the Khadi & Village Industries Commission for getting the subsidy amount of Rs.1,25,000/- being 25% of the loan amount of Rs. 5 lakhs. Thus, the complainant availed the service of the opposite party/Canara Bank for getting the margin money of Rs.1,25,000/- also. There can be no doubt that the availing loan from a commercial bank is to be treated as availing of service as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986. If that be so, availing of the service to get subsidy on the loan amount will also form part of the service availed by the complainant/consumer. So, in the present case, the complainant in CC.156/09 can only be treated as a consumer who availed the services of the opposite party/Canara Bank for availing loan of Rs.5 lakhs including the margin money of Rs.1,25,000/-.
9. Another very important aspect to be noted at this juncture is the failure on the part of the appellants/opposite parties 1 and 2 in filing their version in CC.156/09. It is to be noted that the appellants who were the opposite parties 1 and 2 were served with notices in the complaint in CC.156/09. On getting the said notice, the opposite parties 1 and 2 entered appearance. But, they did not file any version in the matter. They had also not adduced any evidence in CC.156/09. No reason or ground is stated for the failure of the opposite parties 1 and 2 in disputing the case of the complainant in CC.156/09. Thus, the case of the complainant therein stands un-challenged or un-controverted. The Forum below has rightly passed the impugned order directing the second opposite party to pay compensation of Rs.5,000/- with cost of Rs.2000/-. The Forum below is also perfectly justified in absolving the complainant from their liability to pay the sum of Rs.1,25,000/-. At the same time, the Forum below has given the liberty to the second opposite party/Canara Bank, Thirunakkara Branch to realize the subsidy amount of Rs.1,25,000/- from the third opposite party in the event the subsidy/Margin money is disbursed by the third opposite party/Khadi & Village Industries Commission in favour of the complainant/consumer. Thus, in all respects, the present appeal deserves dismissal. Hence we do so.
In the result, the appeal is dismissed. The impugned order dated 21.4.10 passed by CDRF, Kottayam in CC.156/09 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V.VISWANATHAN -- JUDICIAL MEMBER
SMT.VALSALA SARANGADHARAN -- MEMBER
