Haryana

Panchkula

CC/39/2015

ANKUSH SHARMA. - Complainant(s)

Versus

HDFC BANK CREDIT CARD DIVISION. - Opp.Party(s)

COMPLAINANT IN PERSON.

14 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                   

Consumer Complaint No.	:	39 of 2015
Date of Institution	:	24.02.2015
Date of Decision	:	14.09.2015

Ankush Sharma, currently working at RMS, Plot No. 196, Industrial Area, Phase-1, Panchkula, Haryana.

                                                                                       ….Complainant

Versus

 

1. Manager, HDFC Bank, SCO-282, Sector 20, Panchkula-134112, Haryana.
2. Manager, HDFC Bank Credit Cards Division, SCF 50-51, 1^st Floor, Phase 3B-2, Mohali-160059.
3. Manager, HDFC Bank, Jankidas building, Mall Road, Shimla, H.P. 171001.

                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

             

For the Parties:     Complainant in person.

Mr.Puneet Tuli, Advocate for the Ops.

ORDER

(Anita Kapoor, Member)

1. The complainant has filed the complaint against the Ops with the averments that the complainant has a HDFC credit card user of card No.4365200000134905 since Feb, 2012 and has no problem in the service provided till Nov., 2013.  In November, 2013 an Egro Insurance Policy of Rs. 5070/- was activated through credit card without any consent of the complainant and from then an EMI (equated monthly installment) of Rs. 422.50/- was added to monthly bills.  Complainant requested many times the Ops to stop the EMI but they took 10 months to get the policy stopped but the amount was not refunded till then. After that policy was stopped and the amount which was deducted and refunded in the bill. Another charge of Rs.5070/- was added to the bill as loan cancellation charges but the complainant never requested for such loan. The complainant had to pay a sum of Rs. 4102.50/- for a policy that he never opted for.  Ops wanted that the complainant paid Rs. 5070/- as the cancellation charges for loan that he never asked to provide.  During the tenure of 10 months, the complainant requested many times to customer care and he was told that his policy would be cancelled in 15 days but after making 30 complaints and 10 months time period, the complainant get this stopped.  Further the complainant was forced to pay the sum of Rs.422.50/- every month to avoid credit interest. The complainant had also sent an application to stop the auto-pay facility on his card which was linked to his savings account and he was not using the account since June, 2013. After that auto-pay service was stopped initially for few months but was again activated by the OPs and Rs.450/- was added in bill every month as auto-pay return fee. The complainant then submitted another application for the same purpose but the complaint was still kept unheard and on further complaints to the Credit Cards (opposite party) through email, the complainant was told that his signature on the application does not match, if the signature of complainant did not match then how would have they stopped the service once and then started again.  After making repeated complaints, the complainant was not provided the corrected bill statements. Due to which he stopped using the credit card and asked the Ops to stop the credit card service and send the bills. Thereafter, the Ops threatened the parents of the complainant and asked them to pay the amount of bill that was not correct. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared and filed their written statement by taking some preliminary objections & submitted that the present complaint is infractious as the complainant had accrued to the card on account of the HDFC ERGO Insurance Policy which has been availed of by the complainant have already been reversed “Pro rata refund of Rs. 1709 credited on 17.07.2014 reflected in card statement month of 18 August, 2014  and remaining premium amount of Rs. 3361 (Rs. 5070- Rs. 1709= 3361) in month of Jan., 2015 reflected in Card Statement dated 18.02.2015. It is submitted that complainant requested for cancellation of Insurance Policy was raised beyond the free-look in period of 45 days; as such, pro-rata refund to the tune of Rs. 1709/- was done and the same reflects in Credit Card Statement dated 18/08/2014. It is submitted that DAE cancellation was shown as a debit entry in view of the credit entry reflecting in CC statement dated 18/11/2013. It is submitted that complainant was required to make payment of the balance premium of Rs.3361/- alongwith other transactions and any connected charges, post credit card statement dated 18/08/2014 and complainant further requested for cancellation to Bank in January, 2015 resulted in balance premium refund as exception basis as noted in Credit Card Statement dated 18/02/2015.  It is submitted that complainant has continued to utilize the credit card and has been utilizing the same till the month of September, 2014 and last transaction has been done in 15 September, 2014. It is further submitted that complainant having utilized the credit card and has failed to clear the dues payable against the said credit card and even on 8 October, 2014 an amount of Rs. 10,156.65 was payable. It is submitted that the complainant had never paid the complete charges that accrued against the credit card which was being regularly used by the complainant. It is submitted that complainant has availed the auto-pay facilities in respect of the credit card and the auto pay has continued to bounce since October, 2012 that has been mentioned in the e-mail placed on record by the complainant and the same continued to bounce on account of insufficient funds in the account of the complainant. It is submitted that the bank was in receipt of a letter seeking cancellation of auto debit facility in the month of August, 2013 however, the same could not be processed on account of their being a signature mismatch and the complainant was also issued a response letter in respect of the same.  It is submitted that the bank did not receive any application as has been stated. Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of the complaint.
3. Annexure C-A, as also Annexure C-1 to C-7, were tendered into evidence on behalf of the complainant, alongwith Annexure R-3 to R-5 – the reception into evidence of the latter documentation i.e. Annexure R-3 to R-5 having been allowed by the Hon’ble State Commission vide order dated 07.08.2015. Annexure RA was tendered into evidence on behalf of the respondent.
4. We have heard the Learned Counsel for the parties and perused the record in relatability to the views canvassed during the course of hearing. The complainant deserves to be non-suited for the reasons recorded hereunder:-

                   a)    The complaint is incompetent for want of impleadment of the insurer (HDFC ERGO) as a party respondent. Inspite of there being a precise averment to that effect in the course of the written statement, the complainant neither opted to deny it by filing a rejoinder nor impleaded HDFC ERGO as a party respondent. Interestingly enough, the affidavit filed by the complainant also does not negate the plea for the impleadment of HDFC ERGO as a party respondent.

                      b)    Insofaras the transaction of business between the complainant and OPs for the duration 02/2012 to 11/2013 is concerned, there is no controversy about it. There is no denial on the part of the complainant that the disputed/avertedly incorrectly deducted amounts of Rs.5,070/- and Rs.1,709/- had been refunded. Inspite thereof, the relevant adjustment is not averred in the course of the complaint. To be fair and to be able to announce having come to the Forum with clean hands, it was incumbent upon the complainant to aver that adjustment. He opted to make an averment only about the incorrect deduction.

                      c)    The averment in the course of the written statement that the complainant continued to use the credit card upto 08.10.2014 has not been controverted on behalf of the complainant. It follows therefrom that he was satisfied with the services rendered by the OP till that duration.

                   d)    There is a precise averment in the course of written statement that the instructions by the complainant to withhold the auto pay service could not be complied with due to mis-match of signatures. The OPs had addressed a mail dated 24.01.2015 to the complainant in that context. However, there is neither averment nor prove that the complainant took any steps to rectify the error. The complainant has also not been able to disprove yet another precise averment on behalf of the OPs that the auto pay bounced due to insufficiency of funds in the account. All these factors prove that the complainant has not come to the Forum with clean hands and he has withheld consequential averments in the complaint.

                   e)    A conjunctive perusal of the pleadings made by the parties would indicate that there is, in fact, a controversy between the parties about the settlement of accounts. The entertainment of such a controversy by a Consumer Forum would appeared to be categorically barred by the view obtained by the Hon’ble National Consumer Disputes Redressal Commission in Bihar State Housing Board Vs. Chairman-cum-Managing Director and others (1(1996)CPJ228– NC) and Vishal Roadways Vs. Economic Traders (Gujarat) Ltd. (1998NCJ539). The item wise observations made by the Hon’ble National Commission are extracted hereunder: -

“The dispute in respect of the amount deposited can be settled only by reconciliation of accounts as well as by proof of such deposits by producing counter foils or deposit slips or other evidence. It will also be necessary to go into the Reserve Bank of India’s instructions from time to time laying down the rate of interest payable on such deposits or whether any Bank could deviate from the guidelines issued by the Reserve Bank of India. In our view, it is fit case to leave the parties to their remedies.

By way of a civil suit or other remedies as the disputes relates to accounting between the parties.

In an another case titled Vishal Roadways Vs. Economic Traders (Gujarat) Ltd (1998) NCJ (NC)-539 the Hon’ble National Consumer Disputes Redressal Commission had taken a similar view by holding that if the dispute between the parties relates to the settlement of the accounts and for balance due on the basis of the accounts, the same does not fall within the ambit of Section 2(1) (c) and (e) of the Act. The relevant extract of the aforesaid order is reproduced as under: -

               “As observed by the District Forum, the relation between the complainant and the opponent was of a customer and businessman. In the dealings, the complainant had paid more than the required amount to the opposite party and the complainant was entitled to recover the said amount from them. The allegations made in the complaint did not spell out a case of hiring of services and suffering from deficiency. Rather it disclosed a case relating to the settlement of accounts and for the balance due on the basis of accounts. The complainant did not fall within the ambit of section 2(1)_(c) and (e) of the Consumer Protection Act,1986. Civil Suit was the proper remedy to recover the amount paid in excess. The District Forum and the State Commission had no jurisdiction to entertain the complaint which was beyond the scope of Consumer Protection Act. We hold that the order of the District Forum as well as the State Commission suffer from legal infirmity and are unsustainable in law. In the result the revision petition is allowed, the orders passed by the State Commission and the District Forum are set aside resulting in dismissal of the complaint. However, we leave the parties to bear their own costs.”

5. In the light of forgoing discussion, the complaint shall stand dismissed. The parties shall bear their own costs of the cause in the circumstances of the case.
6. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced

14.09.2015      S.P.ATTRI          ANITA KAPOOR     DHARAM PAL

             MEMBER          MEMBER                    PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.      

                                 

 

                                                     ANITA KAPOOR

                                                              MEMBER