D.O.F:21/08/13
D.O.O:18/8/16
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.193/13
Dated this, the18th day of August 2016
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.SHIBA.M.SAMUEL : MEMBER
Kalandar Shanibu, S/o CMA Khader,
R/at Kudroli White house, 5th Mile, : Complainant
Chengala, Po. Cherkala,Kasaragod -671541.
(Adv.Shajid Kammadam)
1.HDFC Banks Ltd, Door No. IX/31a, 1st floor,
Bendichal Shopping Arcade, MG Road, Kasaragod
Rep by its branch Manager. : Opposite parties
2. Mr.Gokul Das, Manager as on 29/05/12,
Door No. . IX/31a, 1st floor,
Bendichal Shopping Arcade, MG Road, Kasaragod
(Adv.M.Narayana Bhat)
ORDER
SMT.P.RAMADEVI : PRESIDENT
The facts of the complaint in brief are as follows:
That the complainant was having current account with south Indian Bank Cherkala Branch and satisfied with the banking service of it and in the month of May 2012, the deposit mobilization wing of 1st opposite party headed by 2nd opposite party had approached the complainant and after mutual discussion and negotiation, the opposite party have agreed to provide banking service without cash handling charges as of shifting his banking transaction from SIB Cherkala to HDFC, Kasaragod branch and in pursuance of the foregoing and in consideration of the mutual obligation undertaken by the complainant and opposite party and the complainant has opened a current account in HDFC bank and get the account in motion and in the ensuing period the service was satisfactory and however the opposite party has illegally deducted Rs.36,736.66 without any prior notice on 13/8/2012 and when the same brought to the notice of 1st opposite party immediately refunded the same with apology on 23/8/2012 by communicating their commitment to the undertaking and accordingly on 15/9/2012 and 21/9/2012 opposite party has illegally again deducted considerable amount in gross violation of undertaking and commitment and when the complainant approached the 2nd opposite party he has represented that deduction was attributed to technical error and assured of refunding the same with immediate effect. But in vein the illegal deduction continued to Rs.1,27,138.90 and as per the request of complainant opposite party agreed to refund Rs.1,24,458.63 vide letter dtd 22/1/2013 and endorsed the existence of understanding regarding free handling charges but opposite party has refunded only 36,737.91 on 18th May and on 14/7/13 the complainant approached opposite party for clarification regarding the letter dated 3/7/12 but the manager of opposite party abused the complainant in the presence of others . Hence this complaint is filed alleging deficiency in service against opposite party.
Opposite parties 1&2 entered in appearance through counsel and Ist opposite party filed version . 2nd Opposite party filed memo adopting the version of Ist opposite party. In the version opposite parties denied all the allegations made against them by the complainant. The complainant grid for cash deposits as per the terms and conditions of account and the same has been duly informed to the customer while opening the account and the schedule of charges with complete details has also been shared with the customer along with the welcome kit containing cheque book etc and a copy of the schedule of charges has been endorsed as cash deposit home branch location free upto 10 times. It is further submitted that the complainant’s account breached the specified limits, appropriate charge totaling to an amount of Rs.1,63,875.56 was levied during the period Aug-12 to Jan 13 and out of this an amount of Rs.36736.66 was reversed on 23 August 2012 and after the complainant gave complaint in January 2013 the matter was reviewed of charges amounting Rs.36,737.91 as a one time service gesture and however the response dt 21/1/2013 given by Ist opposite party stating that entire charges of Rs.1,24,458.63 would be reversed by month end was an in advertent mistake and it is further submitted that the amount of Rs.36.737.91 was reversed to complainant’s account and a response confirming this fact was send vide response dt.30/4/13 clearly informing about partial reversal and also that the reversal of remaining charges have been taken up for appropriate review and the customer head of the ist opposite party had to the complainant in this regard and the complainant had approached Banking Ombudsman with the complaint and after receipt of said complaint the opposite parties have once again conducted a detailed review in consultation with the senior management and it has been decided that no further reversals are warranted since they have already reversed an amount totaling Rs. 73.474.57 and moreover the charges are legitimate and an amount of Rs.24746 is pending to be recovered for want of sufficient balance in the account. Hence there is no merit in the complaint and the same is liable to be dismissed.
On going through the entire facts of the case the following issues raised for consideration.
1. Is there any deficiency in service on the side of opposite party
2. If so what is the relief?
The evidence in this case consists of the evidence of PW1 , the complainant and Exts.A1 to A3 and on the side of opposite party evidence of DW1 and Ext.B1 document.
The specific case of the complainant is that only on the undertaking given by the opposite party that the opposite party will not charge cash handling charges the complainant shifted his banking business from South Indian Bank to opposite party’s bank. But the opposite party levied cash handling charges from complainant illegally and thereby the opposite [parties have breached the undertaking . Opposite party’s case is that opposite parties have levied the cash handling charges as per the terms and conditions of account and the same has been shared with the customer and when the complainant’s account breached the specified limits, appropriate charges totaling an amount of Rs.1,63,875.56 was levied and out of this Rs.36736 was reversed to complainant’s account on 23/8/2012 . Here the question to be answered is whether the opposite parties agreed to do the banking service without charging cash handling charges?. Here according to the complainant he was the account holder of South Indian Bank Cherkala Branch he is satisfied with the service of that bank. In order to mobilize the deposits the mobilization wing of Ist opposite party headed by 2nd opposite party approached the complainant and after mutual discussion the opposite parties agreed to provide banking service without cash handling charges and on that undertaking by opposite party the complainant shifted his banking business from South Indian Bank to opposite parties bank. Here the complainant specifically stated that he was satisfied with the service provided by the South Indian Bank. Opposite parties have no case that the complainant shifted the banking transactions from South Indian Bank to the opposite parties bank since the complainant is not satisfied with the service provided by the south Indian Bank. That means in order to change the bank transaction from one bank to another bank there must be same reason . The later bank will provide some benefits to the customer otherwise he can continue with the first bank. Hence eventhough there is no agreement in written form the opposite parties might agreed to provide benefits to the complainant. Other wise what is the purpose to change the bank. Moreover when the complainant questioned the levying of handling charges the opposite party renewed the Rs.36736.66 to the account of the complainant. If there is no obligation why should the opposite party refunded that amount. Considering all these facts we are of the opinion that there was some oral agreement between the complainant and opposite parties regarding the cash handling charges. Apart from that opposite parties have agreed to refund Rs.1,24,458.63 which was subsequently levied by opposite parties. Ext.A1 is the letter dtd.22/1/13 issued by HDFC Bank Ltd, Mumbai . Ext.A1 shows that the opposite party agreed to renew Rs.1,24,458.63 within one week. In this regard opposite parties have taken a two contentions. Ist is in their version it is stated that entire charges of Rs.1,24,458.63 would be reversed by month end was an inadvertent mistake. That means opposite party admitted Ext.A1 letter. But opposite party had taken this contention first time in the version filed before this forum. If the recitals in Ext.A1 was mistakenly or in advertently written what is prevented the opposite parties to sent another letter rectifying the mistakes? The 2nd contention is that while cross examining PW1 the counsel for opposite party put a suggestion that the Ext.A1 is not send by the opposite parties and it was signed by the grievance Redressal officer and also put that why the signatory of Ext.A1 is not made as party? If the opposite party is not admitting Ext.A1 why the opposite party stated in the version that it was inadvertently or mistakenly written. Eventhough the complainant filed complaint before the Banking Ombudsman the same was closed without any order, the subsequent complaint filed before this Forum is maintainable in the light of the decision rendered by the Hon’ble National Commission in Devdatt Dhivan vs. State Bank of India that the relief envisaged under the Consumer Protection Act is not a substitute for other remedies available to the complainants . it is an additional remedy at the choice is with the complainant to seek this remedy or the other ie, civil suit. As far as the decision by the Banking Ombudsman is concerned, it has not been pointed out that such a decision can be got implemented it if the parties refused to comply . in other words, there is no legal sanction for such a decision and it is only recommendatory in nature and thus cannot be a bar for approaching the authorities under the Consumer Protection Act for the relief.
Upon going through all the facts and circumstances of the case we are of the view that the complainant was shifted his banking transaction with South Indian Bank to the opposite parties bank only because of the offer made by opposite party that the opposite party will not levy the cash handling charges and at the initial stage opposite party provided such benefits to complainant and subsequently opposite parties denied such benefits to complainant. Denial of agreed beneficial services amounts to deficiency in service on the side of opposite parties and thereby the complainant suffered mentally and economically. Hence the opposite parties are liable to compensate the complainant.
Therefore the complaint is allowed . Opposite parties are jointly and severally directed to refund Rs.90,000/- being the cash handling charges collected from the complainant and further directed to pay Rs.10,000/- towards compensation for mental agony and Rs.3000/- towards cost of the proceedings. Time for compliance is 30 days from the date of receipt of copy of this order.
Exts.
A1-copy of letter from Ops
A2- Banking guide lines
A3-copy of Grievance Redressal Policy
B1- copy of letter issued by Banking Ombudsman to Ops
PW1- Kalandar Shanibu-complainant
DW1-Gokuldas.k-2nd OP
Sd/ Sd/
MEMBER PRESIDENT
eva /Forwarded by Order/
SENIOR SUPERINTENDE
