SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing the opposite party to pay Rs.1,00,00,000/- (one crore) to the complainant as compensation for the mental agony and harassment suffered by the complainant due to the act of opposite party together with cost of the proceedings.
Briefly stated the facts of the case are that the complainant is a business woman and is a distributor of fast moving consumer goods in Kerala for the last more than 25 years and having financial facilities in various banks in SBI and other banks. The complainant had a credit card ending with 8607 of the OP bank. She has paid the entire outstanding balance due on the credit card on 09/03/2021. The complainant in order to avail a housing loan from SBI to carry out some urgent renovation of the house of the complainant has checked the complainant’s CIBIL score was found very low. Complainant later understood that in her CIBIL score was low on account of the alleged outstanding balance reported by the HDFC Bank in the credit card loan. Even after closing the above loan the OP has issued a notice to the complainant intimating the complainant that credit card due amount was assigned to one “Phoenix ARC Pvt. Ltd”. Thereafter the above “Phoenix ARC Pvt. Ltd. has issued a notice to the complainant dated 16/09/2021 threatening that they would submit the complainant record to credit information bureau India Ltd (CIBIL) and also made phone calls to the complainant. All the above actions of the OP have caused severe mental stress to the complainant. After the complainant requested the OP to give an account statement pertaining to the credit card loan but the OP has not furnished the account details and at last lawyer notice was sent demanding the true and correct account of the loan. But even at the time of filing this complaint the OP has not furnished the account statement to the complainant. The OP had sent a letter to the complainant dated 16/10/2021 intimating the complainant that there is no outstanding amount due in the credit card loan ending with 8607 and made arrangement to update the above credit card details in the CIBIL data base within 45 days. Due to this she has not obtained any bank loans for the business of the complainant and it has affected her business badly. Hence the complaint.
After receiving notice OPs filed version stating that the complainant availed card facility solely for commercial purpose and hence the above complaint is liable to be dismissed in limine. Further the bank has rendered only a service free of charge and in fact there is no deficiency in service or negligence on the part of bank. It is further submitted that the credit card facility availed by the complainant and the outstanding balance in the card facility was sold to M/s Phoenix ARC Pvt. Ltd. on March 2021. Hence, Phoenix ARC Pvt. Ltd is also a necessary party in the above complaint. By the credit card using complainant entered into various transactions. She had also availed Jumbo loan and other loan facilities from the OP bank. In addition to these loan facilities, the complainant had also availed Auto Loan and car and cash facility from the OP bank. However, the complainant failed to make regular payments towards the outstanding on the card account despite repeated reminders. The averments of the complaint that she paid entire outstanding in the credit card account are not correct and hence denied. The complainant was not regular in repaying the loan facility availed from the OP bank and hence correct details are reported in CIBIL. The statement that the OP bank had sold the card facility to Phoenix after closing the card account with the OP bank. It is pertinent to note that this OP has no connection with Phoenix and they are not acting as per the instruction of this OP bank. Once the asset is sold to M/s Phoenix, the financial arrangement existing between Phoenix ARC and the complainant and this OP has no arrangement whatsoever in this regard. Hence, the entire allegations raised in the complaint are opposed by OP bank. It is pertinent to note that this OP has no connection with Phoenix and they are not acting as per the instruction of this OP bank. Once the asset is sold to M/s Phoenix, the financial arrangement existing between Phoenix ARC and the complainant and this OP has no arrangement whatsoever in this regard. Hence the entire allegations raised in the complainant are opposed by OP bank. The complainant has never requested monthly statement other than the lawyer notice dated 20/07/2021. As per the Fiduciary relationship existing with its customer and the existing guidelines of the bank, OP bank is not permitted to share statement of account in the lawyer notice. This OP bank has not furnished false details to CIBIL as alleged in the complaint. Due to the act of OP bank, the complainant could not avail loan from other banking institutions are not correct. There is no deficiency in service on the part of this OP. The complainant is not entitled for any reliefs from the OP bank and hence the same is liable to be rejected.
At the time of evidence the husband of complainant filed his chief affidavit and documents. He was examined as Pw1 and the documents were marked as Ext.A1 to A14. On the side of Op only documents produced and were marked as Ext.B1 to B3. After that the learned counsels of both parties made oral arguments.
We have gone through the records available before us. The dispute relates to making lower of the CIBIL score of the complainant on account of the alleged outstanding bank account reported by the HDFC bank (OP here in) in credit card loan ending with 8607.
The 1st plea and raised by OP is that the complainant does not fall within the definition of Consumer because the complainant availed card facility solely for commercial purpose. The other plea of OP is that the bank has rendered only a service free of charge and hence there is no deficiency in service or negligence on the part of bank. Besides the above said pleas, during argument time the learned counsel of OP, submitted that the person who has been examined as Pw1 from the side of complainant does not have locus standi to give evidence on behalf of the complainant, as he has not filed any power to attorney or authorization letter of the complainant. Moreover he has deposed that he had not used the credit card of the complainant for the business purpose.
The first question therefore is whether PW1 husband of complainant can himself depose on behalf of the complainant without authorization and power of attorney. This point was considered by the Hon’ble National consumer disputes Redressal commission on TT Private Ltd. Vs.Akhil Bhartiya Grahik Panchayat (1996-6-34) on 18/06/1996 and it was held. “The relationship of husband and wife, in marriage, is such that of commonality of interest and inter-dependence on each other, which entitles either party to step on the shoes of another as far as the complaint regarding deficiency, in rendering service or adoption of unfair trade practice, in respect of good, is concerned”.
Hence adopting the view of Hon’ble appellate commission, we are also of the view that examination of Husband of complainant as Pw1 on behalf of complainant can be taken into account.
Another plea of the learned counsel of OP is that since the complainant has availed card facility solely for commercial purpose, this complaint is liable to be dismissed. With regard to this contention, we can realize that OP himself admitted that complainant by using the disputed credit card, entered into various transactions. She had also availed jumbo loan and also Auto loan and car and cash facility from the OP bank. From the said contention itself means that complainant had not used the credit card solely for her business purpose. Hence we cannot consider that the complainant has availed the credit card solely for the purpose of commercial transaction.
Another point raised by OP is that bank has rendered only a service free of charge and so there is no deficiency in service or negligence on their part. Pw1 during cross-examination time stated that OP bank has levied charged for their service. Here OP has not substantiated that they have rendered free service to the credit card facility. Hence this contention of OP also cannot be taken into account.
Here complainant’s allegation is that even after remitting the entire outstanding dues OP bank had sent letters informing that her account has been declared a non-performing Asset and threatened her to make the status of the complainant’s account to submit to CIBIL. For sub standing the allegation, complainant produced Ext.A2 demand notice of OP dated 16/09/2021 and Ext.A4 dated 10/03/2021. Ext.A11 receipt clearly evident that complainant t has remitted the entire dues as claimed by OP bank Rs.5,00,372/- on 09/03/2021. But Ext.A2 and A4 dated 16/09/2021, 10/03/2021 shows that even after the remittance of the outstanding, OP bank had sent letters stating that there was outstanding balance of Rs.5,00,372/- to the complainant’s credit card in dispute. Further Ext.A6 shows the CIBIL Score of complainant on 23/04/2021 was 711. Complainant further alleged that after closing the card account with the OP bank, they had sold the card to phoenix and M/s Phoenix threatened complainant through phone calls etc. OP bank denied the said allegation of complainant, but OP bank did not prove through evidence that they entrusted M/s phoenix ARC to collect the complainant’s credit card outstanding dues before 09/03/2021 the date on which complainant had remitted entire dues. Further OP has failed to prove that they submitted the status of complainant’s credit card outstanding of CIBIL prior to 09/03/2021.
Hence considering the facts and circumstances of this case, there is deficiency in service on the part of OP by declaring the account of complainant a non –performing Asset even after closing the credit card outstanding dues. Ext. A9 dated 10/09/2021 clearly shows that OP had issued various requests and remainders to complainant. Here complainant has no direct contact with M/s Phoenix. M/s Phoenix was arranged by OP bank. So there is no privity of contract between complainant and M/s Phoenix.
In the result complaint is allowed in part. Opposite party bank is directed to pay Rs.50000/- to the complainant for the mental agony caused to her, due to the deficiency in service of Opposite party bank. Opposite party bank is further directed to pay Rs.10,000/- towards the cost of the proceedings of this case. Opposite party shall comply the order within one month from the date of receipt of the order, failing which Rs.50,000/- carries interest @ 9% per annum from the date of receipt of this order. Complainant is liberty to file execute the order as per provision of Consumer Protection Act 2019.
Exts.
A1- Copy of the notice send by OP to complainant dated 29/04/2021
A2- Copy of the notice send by Phoenix to complainant dated 16/09/2021
A3- Copy of the notice send by OP to complainant dated 16/10/2021
A4- Copy of the notice send by OP to complainant dated 17/03/2021
A5- Income tax return acknowledgment dated 23/03/2021
A6- CIBIL transunion score dated 23/04/2021
A7- CIBIL score dated 16/06/2021
A8- Letter issued by HDFC Bank in favour of complainant
A9- Demand note issued by HDFC Bank in favour of complainant dated 16/09/2021
A10- Letter issued by HDFC Bank in favour of complainant dated 16/10/2021
A11- Counterfoil of HDFC Bank for Rs.5,00,372/- dated 09/03/2021
A12- CD
Pw1- K V Sreedharan-complainant’s husband
B1(series)- Credit card statement
B2- Reply notice
B3-Terms and conditions-credit card
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
