BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/06/2010

Date of Order : 29/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 353/2010

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are as follows :

The complainant is a lawyer by profession. Lured by the advertisements of the opposite parties in 2004, while the complainant was in Calicut availed himself of a personal loan of Rs. 30,000/- from the opposite parties. The loan was payable in 24 instalments of Rs. 2,038/- each. The 1^st opposite party deducted an advance EMI from the loan amount. As instructed the complainant handed over 23 post dated cheques drawn on ICICI bank each for Rs. 2,038/-. In March 2006, the loan account was closed by clearing all the cheques. The facts while so in February 2010, the complainant approached SBI Ernakulam to avail a vehicle loan. After perusing the application, the SBI refused the same stating the reason that as per the report of Credit Information Bureau of India Ltd. (CIBIL) the complainant is a defaulter for Rs. 828/- to the opposite parties SBI informed the complainant that they are not ready to grant the loan even if the debt is cleared. Though the complainant approached M/s. Mahindra Finance and ICICI Bank, they as well refused to grant the same since his name in the CIBIL. At the request of the complainant, the 2^nd opposite party issued a letter with a heading 'early pay off letter' dated 16-03-2010 by charging Rs. 350/-. He has noticed various discrepancies in the account statement issued by the opposite parties still as per the instruction of the opposite parties the name of the complainant is in the defaulters list of CIBIL. The above conduct of the opposite parties amounts to deficiency in service. The complainant is entitled to get a total compensation of Rs. 5,06,448/- and costs of the proceedings from the opposite parties. The complainant is also entitled to get his name removed from the defaulters list of CIBIL. This complaint hence.

2. Version of th opposite parties :

The complainant is not a consumer as defined in Section 2 (1)(d) of the Consumer Protection Act. The loan amount of Rs. 27,475/- was disbursed to the complainant on 24-03-2004 after deducting the advance EMI and Rs. 487/- towards processing fee. The complainant duly issued 23 post dated cheques for the payment of the remaining 23 instalments. But cheques issued for the month of October 2004 and January 2006 were dishonoured on presentation. So, the name of the complainant was intimated to CIBIL. The opposite parties waived off the payment of the last instalment and had foreclosed the loan account on 15-03-2010. Thereafter, the opposite parties had informed the matter to CIBIL. The opposite parties had not levied any excess amount from the complainant. There is no deficiency in service on the part of the opposite parties.

3. The complainant was examined as PW1 and Exts. A1 to A12 were marked on his side. Witness for the opposite parties was examined as DW1 and Exts. B1 to B3 were marked on their part. Heard the counsel for the parties.

4. The points that emanated for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complainant is entitled to get a compensation of Rs. 5,06,448/- from the opposite parties?

3. Whether the complainant is entitled to get his name removed from the list of defaulters of CIBIL?

4. Cost of the proceedings?

5. Point No. i. :- Admittedly, the complainant had availed a loan from the opposite parties bank. The dispute arises between a consumer and the service provider with regard to banking or financing transaction is a service as per Section 2 (1)(o) of the Consumer Protection Act. Apart from the averments in the version, nothing is on record to prove that the complainant is not a consumer.

6. Point No. ii. :- The parties are in consensus on the following issues :

1. The complainant availed himself of a loan of Rs. 30,000/- from the opposite parties in March 2004.

2. A loan agreement was executed between the complainant and the opposite parties.

3. The loan was to be repaid in 24 monthly instalments of Rs. 2,038/- each.

4. An amount of Rs. 27,475/- was disbursed to the complainant on 24-03-2004 after deducting the 1^st instalment and a sum of Rs. 487/- towards the processing fee and service charges.

5. The complainant had issued 23 post dated cheques towards the payment of remaining 23 instalments.

6. The loan account of the complainant was foreclosed on 15-03-2010.

7. The crux of the case of the complainant is that his loan account was closed on 07-03-2006, the date on which the last cheque was cleared from his account in spite of that at the instance of the opposite parties his name has been published by CIBIL in the list of defaulters. It is stated that due to the circulation of his name in the defaulters list, he had to suffer untold difficulties and inconveniences. The learned counsel for the complainant relied on the following decisions :

1. Dunk Vs. George Waller & Son Ltd. 1970, Court of Appeal.

2. Wilson & Another Vs. United Countries Bank Limited and Another 1920, House of Lords.

8. On the contrary, the opposite parties maintain that the complainant closed his loan account only on 15-03-2010 and they waived the outstanding amount as on date as a goodwill gesture and accordingly intimated the matter to CIBIL. According to them, there is no deficiency in service on their part.

9. Neither the complainant nor the opposite parties disagree the execution of the loan agreement. However, either parties have not produced the same for our verification and perusal, which contains the terms and conditions of the loan transaction. DW1, the witness for the opposite parties deposed that he had not known the details of the statement of account of the loan transaction which is an averment which goes in favour of the complainant. DW1 further stated that 2 cheques of the complainant had been dishonoured by the bank. But they failed to produce any evidence to substantiate the same at least they ought to have produced the dishonoured cheques in this Forum which again goes to sustain the plea of the complainant. It is pertinent to note that the opposite parties failed to mention the outstanding amount as on the date of payment of last instalment in 2006.

10. Admittedly, the opposite parties did not demand the outstanding amount due from the complainant nor did they issue a notice intimating the same. Instead of that for no reasons stated before this Forum as a reason thereof simply, the opposite parties forwarded the name of the complainant to CIBIL to publish his name in the list of defaulters. It is worthwhile to note that even when the name of the complainant was published in the list of CIBIL, the opposite parties issued Ext. A6 early pay off letter dated 16^th March 2010 without levying any amount from the complainant, according to them as a goodwill gesture. By the time, much water has flown under the bridge. The complainant approached various financial institutions to avail loan to purchase a car, but they turned down the request due to the inclusion of his name in the defaulters list of CIBIL only, evident from Ext. A1 CIBIL consumer credit information report.

11. Naturally, the complainant has had to suffer lot of inconveniences as claimed by him. Prior to the inception of this complaint, the complainant caused Ext. A7 notice to get his grievances redressed, but the opposite parties issued a half baked reply in Ext. A9 which compelled the complainant to knock at the doors of this Forum rightly so as we observed.

12. On account of the above considered observations on the above, we are of the firm view that there is a definite deficiency of service on the part of the opposite parties for which they are answerable. In the above referred cases, the Hon'ble Higher Courts have stated that loss of status is to be considered while granting damages, though the above decisions have been rendered prior to the coming into force of Consumer Protection Act wisdom reigns and also rules. So, we have no hesitation to rely on the decisions. The complainant has gone to the extend of claiming compensation to the extend of Rs. 5,06,448/- for his reasons unquantified. By no stretch of imagination can such an amount be granted for unsustainable reasons. However, he has been put to some mental agony which is not unabatable, for reasons so we fix the compensation at Rs. 30,000/- which we feel would squarely sufficient. Matters having been squared out, we are of no doubt that the complainant can further proceed with his original aspiration.

13. Point No. iii. :- The complainant having been reprieved the opposite parties shall take immediate steps to remove his name from the list of defaulters in CIBIL.

14. Point No. iv. :- Though the primary grievances have been squarely met. we feel that an exemplary costs of Rs. 1,000/- is called for.

15. In the result, we partly allow the complaint and direct as follows :

1. The opposite parties shall jointly and severally pay a compensation of Rs. 30,000/- (Rupees Thirty thousand only) to the complainant for the reasons stated above.

2. The opposite parties shall jointly and severally forthwith take steps to expunge the name of the complainant from the list of defaulters maintained by CIBIL.

3. The opposite parties shall jointly and severally pay Rs. 1,000/- by way of costs of the proceedings to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.

Pronounced in open Forum on this the 29^th day of October 2011.

Forwarded/By Order, Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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