(Passed this on 25^th April,  2017)

Shri. S.P. Muley, President –

1.   This is a complaint of unfair trade practise against Opposite Party, HDFC Bank.

2.   The complainant is a house wife and The O.P.1 is Head Office and O.P.2 is branch office of HDFC Bank. In the year 2006 the complainant opened a saving account (family account) bearing No. 05021000021917 with the O.P.2. In the year 2008 on the insistence of the O.P.2 an over draft (OD) account facility was opened on assigning a life insurance policy by way of security, which was linked with her existing saving account. She was specifically apprised that  the OD facility would come into play only in the event of her saving account balance became nil or withdrawals would be above the funds available in the saving account. Accordingly after completing all the formalities an O.D. account bearing No. 05022490000110 was allotted to her and linked with her existing saving account. But no documents or terms and conditions were provided. The complainant thereafter made sone transactions from her saving account. The O.P. on its own accord and without consent or permission of the complainant unilaterally linked her existing ATM card with O.D. account. During the period from 30/12/2008 to 15/1/2010 she withdrew total amount Rs.31,574/- from her saving account having sufficient balance as under,

3.   But the O.P. portrayed the said withdrawals as overdrafts in the OD account, despite sufficient balance available in her saving account on each date of withdrawal, and levied interest on each of the withdrawal. When she came to know, she requested the O.P.2 to correct the accounts by revising the interest levied on OD account. However, the O.P. failed to act upon her request despite assurances and continue to debit interest in the OD account which has now come to more than Rs.17,000/- and is demanding her to pay it or it would be recovered from her saving account. This is unfair trade practise of the OPs. Hence, she has prayed to direct the OPs to correct and reverse the wrong entries in her OD account, issue ATM card against saving account and to pay her compensation of Rs. 50,000/- and Rs.15,000/- as cost of litigation.

4.   The O.P. filed written version to the complaint and denied it being false and made with suppression of material facts. It is not denied that the complainant has a saving bank account No. 05021000021917 with O.P.2. But it is denied that in the year 2008 personnel of the O.P.2 approached her to open an OD account in linkage with existing saving bank account. On the contrary she herself approached to the O.P.2 to open an OD account. She was given separate ATM/ Debit cards against SB and OD accounts. It is also denied that she was told that on assignment of some surety she could enjoy OD facility and that the OD facility would come into play only in the event of SB account became nil or withdrawals were above the available funds in SB account. It is admitted that she assigned her LIC policy for OD account. No documents were asked by her. It is denied that the OD account was linked with SB account unilaterally. The transactions shown to have been done were from her OD account and not from SB account. Therefore the O.P. 2 rightly levied interest on above withdrawals. She never visited the office of O.P.2 for reversal of interest. After withdrawal from OD account she never made a single payment towards OD account. Thus denying the allegations as false it is submitted to dismiss the complaint.

     Heard.

5.   There is no dispute that the complainant has two accounts, one SB and other OD a/c with the O.P.2. The dispute is whether the OD a/c was linked with the SB a/c and whether two separate ATM cards were issued against two accounts to her. The withdrawals mentioned in the complaint on different dates are also not in dispute, but the question is whether the said withdrawals were from SB or OD a/c. But it is a fact that those withdrawals were debited to her OD a/c, though the complainant has alleged she withdrew the amount from SB a/c.

6.   We shall first peruse the copies of a/c opening forms filed by the complainant. The SB a/c was a joint account in her name alog with her husband. The OD a/c was a single a/c in her name. It further reveals, ATM card facility was opted for both SB and OD a/c. Though the complainant has denied in her complaint having taken ATM card on OD a/c, she has later in her affidavit admitted having separate ATM card on OD a/c issued by the O.P. So it is a confirmed fact she has two separate ATM cards, one on SB and other on OD a/c.

7.   The foremost question to be considered is whether the OD a/c was linked with SB a/c. In this respect except bare statement of the complainant and denial of the O.P.; nothing is placed on record in support of rival claim. No direct documentary evidence is available. Nevertheless, Ld counsels have tried to gain support from available documents. Ld counsel for the complainant invited our attention to a letter dated 13/9/2011 written by the complainant to the O.P. By this letter she made protest that she has a SB a/c to which OD a/c has been linked, but she has not used the OD a/c since it was opened. She made some transactions but all those were from SB a/c, but the amount was debited to OD a/c. The O.P. was therefore requested to set her a/c correctly. It is  contended that by this letter the complainant had conveyed her grievance to which the O.P. did not even bother to respond, which itself is sufficient to support her case.

8.   On the other hand, Ld counsel for the O.P. referred to the a/c opening forms and contended since the OD a/c was exclusively single a/c of the complainant, it could not have been linked with joint a/c of her and her husband. Besides, if the two accounts were linked, there was no need to opt for two separate ATM cards against two accounts. He further argued, the first disputed withdrawal of Rs.10,000/- was made on 30/12/2008 and last one of Rs.4,558/- was made on 15/1/2010. During that two years period the complainant never made complaint that the withdrawals were wrongly debited to OD a/c instead of SB a/c. The letter dt/ 13/9/2011 was also given almost one and half year later. Thus it is submitted the complainant was well aware that the withdrawals were made from OD a/c and therefore she did not complain. Otherwise she would not have waited  so long to lodge protest, and therefore it proves the withdrawals were from OD a/c and not from SB a/c.

9.   The arguments advanced by both the Ld counsels is based on inferences. In our opinion the issue could have been easily resolved had the ATM card number been provided by either party. Because the withdrawals are alleged to have been made through ATM card and both her accounts have separate ATM cards. Be that as it may, we may consider some other circumstances in this respect. It is an undisputed fact she had sufficient balance in her SB a/c when she withdrew the amount. The OD a/c is special facility where the bank allows customers to borrow a set amount of money when an account reaches zero. Usually this situation occurs when a person withdraws an amount which is more than the balance in his account. Now, if a person has sufficient balance in his a/c to honour the withdrawal cheque, he would not go for withdrawal from OD a/c and unnecessarily incur high rate of interest. It appears that the complainant must have withdrawn the amount from her SB a/c, but it was wrongly debited to her OD a/c to gain interest. This is unfair trade practise of the OP. We are also conscious of the fact that when she lodged protest for debiting her OD a/c, the O.P. did not respond. Non response by the O.P. gives an adverse inference against the O.P.  We are, therefore, of the opinion that the said withdrawals were from the SB a/c but were debited to OD a/c and levied interest. The complainant is not liable to pay the interest or penalty imposed by the O.P. The complaint is thus allowed. Hence the following order.

ORDER

1. The complaint is partly allowed.
2. The OPs are directed, jointly and severally, to correct and reverse the entries wrongly made in the OD a/c of the complainant in respect of withdrawals mentioned in the complaint.
3. The OPs shall jointly and severally pay compensation of Rs. 10,000/- and litigation cost Rs. 5000/- to the complainant.
4. The order shall be complied within 30 days from receipt of copy of the order.
5. Copy of the judgment and order shall be supplied to both the parties, free of cost.