| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 387 of 26-06-2014 Decided on : 01-08-2016 Saroj Rani aged about 42 years W/o Sh. Bal Krishan Garg, R/o H. No. 17424, Street No. 2, Minocha Colony, Bathinda. ….....Complainant Versus HDFC Bank Limited, Registered Office, L.B. Road, Thiruvanmiyur Chennai – 600041, through its Managing Director Incharge, HDFC Bank Limited, HDFC Bank Credit Card Division, SCF 50/51, Ist Floor, Phase 3B-2, Mohali 160 059. Branch Manager, HDFC Bank Limited, 3027-B, Guru Kashi Marg, Near Bus Stand, Bathinda. HDFC Ergo General Insurance Company Limited, Regd. and Corporate Office : Ist Floor, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate Mumbai 400 020, through its Managing Director
........Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986.
Quorum : Sh. M.P.Singh Pahwa President Sh. Jarnail Singh Member Present : For the Complainant : Sh. Sanjay Goyal, Advocate For the opposite parties : Sh. Sanjay Goyal, Advocate, for OPs No.1 to 3. Sh. Varun Gupta, Advocate for OP No. 4. O R D E R M. P. Singh Pahwa Saroj Rani complainant has filed this complaint against HDFC Bank Limited and others ( opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). Briefly stated, the case of the complainant is that the opposite parties carries on business of banking and provides various services such as facility of debit card etc., on payment of charges/commission fixed for the same by the opposite parties. The opposite parties further claims that they are the best service providers in their field. The opposite party No. 3 is the branch office of opposite party No. 1 at Bathinda. The complainant is a teacher in Govt School at Viillage Kot Fatta, District Bathinda. It is averred that the agent of the opposite parties visited school where the complainant is serving. He contacted complainant and other school staff and disclosed that they provide various lucrative services. One of the scheme launched by them is of debit card facility which enable a person to withdraw money at any time during validity period of card. New Card can be got issued on written request of holder alongwith requisite fee for the same. Although the complainant was not in need of the credit card, however on insisting by the agent of the opposite parties, she alongwith some other staff members applied for credit card and she was issued card No. 4617862002052207. It expired without any transaction and even the credit card was not activated by the complainant. It is further pleaded that in the month of June, 2012, complainant received legal notice dated 13-6-2012 got issued by the opposite parties and they demanded amount of Rs. 7,956.69 allegedly due and payable in the aforesaid credit card account. The complainant immediately replied to the notice through her counsel on 2-7-2012 that the credit card in question was never used by her. It was not even activated and no transaction ever took place through credit card in question. The complainant requested the opposite parties to inquire into the matter and bring the culprit to books and withdraw the impugned demand as it was not due and recoverable from the complainant. Thereafter complainant started receiving threatening calls to pay the said amount allegedly due from her. The complainant contacted opposite parties to know about the transaction as she never withdrawn the said amount. The opposite parties failed to respond to the query of the complainant. They are issuing letters/notices time and again demanding the said amount from the complainant illegally under threat. The complainant requested the opposite parties that she never withdrawn the alleged amount. The illegal withdrawal of amount from the account of complainant amounts to breach of trust on the part of the opposite parties. The credit card issued has already expired without even single transaction. It was not even activated, so the question of withdrawing the amount through credit card does not arise at all. The opposite parties have communicated the alleged due amount from the complainant and has shared with other banks, institutions, credit information companies and statutory bodies. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. She has claimed compensation to the tune of Rs. 50,000/- on account of mental tension, harassment, botheration etc., and direction to the opposite parties to withdraw the alleged demand. Hence, this complaint. It is relevant to mention that originally the complaint was filed against opposite parties No. 1 to 3 only. The opposite party No. 4 was impleaded subsequently. Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing written reply. The opposite parties No. 1 to 3 in their joint written reply raised legal objections that complaint is bad for non-joinder of necessary party namely HDFC Ergo Insurance from whom the complainant through credit card purchased policy and concealed this fact. As such, complaint is liable to be dismissed. That the complaint is not maintainable against the opposite parties as there is no deficiency on the part of the opposite parties. That the complainant has no locus standi or cause of action to file the present complaint. That the complainant is not consumer qua opposite parties. That the complainant requires elaborate oral evidence as well as cross examination which can be adjudicated only by civil court and that the complainant has concealed the material facts, as such complaint is liable to be dismissed. On merits, it is admitted that opposite parties are carrying on business of banking and they offer services but it is denied that the agent of the opposite parties visited school of complainant. It is pleaded that complainant with her free will had taken credit card. It is reiterated that complainant has concealed material facts regarding purchasing of HDFC Ergo Insurance policy through credit card. As such, she herself has disclosed the details of credit card on the basis of which she authorized HDFC Ergo to receive payment. As such, the complainant made payment of premium to HDFC Ergo and later on, got the policy cancelled but since HDFC Ergo deducted the charges as per their agreement, the charges were rightly made in the credit of the complainant. Since the complainant did not repay the amount to credit card division in time, as such she is further charged with late fee payment and other amount shown in statement of account. Issuance of legal notice is not disputed but it is stated that complainant had replied the notice on wrong facts. All the other averments are categorically denied. In the end, the opposite parties No. 1 to 3 prayed for dismissal of complaint. The opposite party No. 4 in its separate written reply also pleaded that it is the company registered under Companies Act, 1956 and it carries general insurance business. The opposite party No. 4 also raised legal objections that complaint is not maintainable. The complainant has attempted to misguide and mislead this Forum. She has suppressed material facts from this Forum. That the complainant has failed to disclose any legal and valid cause of action against the opposite parties . Hence, the complaint is liable to be dismissed. That the complaint does not qualify the ingredients of a valid complaint as envisaged in Section 2(1)(c) of the 'Act'. There is not a single allegation which leads the opposite party either to deficiency of service or that of any unfair trade practice. That the complainant has created a false story in his complaint to mislead this Forum by false and frivolous facts and circumstances of the case. That she has no cause of action. That the complainant has not come with clean hands and has suppressed the material facts. That intricate questions of law and facts are involved. Parties have to lead their evidence by examining witnesses which are to be cross examined. The procedure under the 'Act' is summary in nature. The complainant if so advised may file civil suit seeking alleged relief. That there is neither deficiency in service nor unfair trade practice on the part of the opposite parties. As such complainant is not consumer and complaint is liable to be dismissed. That complainant is stopped from filing the complaint by her own acts, conduct, omissions and acquiescence. That the opposite parties float the insurance scheme for the public in general after prior approval of the Insurance Regulatory & Development Authority ('IRDA) and all the terms and conditions of the respective insurance policies are set by the I.R.D.A. Constituted under the I.R.D.A. Act, 1999 and Insurance Act, 1938. That the complaint is false, frivolous and vexatious in nature and it has been filed to cause undue harassment to the opposite parties. On merits, the opposite party No. 4 has also denied all the averments mainly for want of knowledge. In the end, the opposite party No. 4 also prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 25-6-2014 (Ex. C-1), photocopy of letters (Ex. C-2 & Ex. C-3), photocopy of reply of legal notice (Ex. C-4), photocopy of letters (Ex. C-5 to Ex. C-8) and photocopy of account statements (Ex. C-9 to Ex. C-15). In order to rebut this evidence, opposite parties No. 1 to 3 have tendered into evidence affidavit dated 8-10-2015 of Rashi, Asst. Manager (Ex. OP-1/1). The opposite party No. 4 failed to tender evidence despite repeated adjournments, as such evidence of opposite party No. 4 was closed by order dated 30-10-2015. We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that of course complainant got issued credit card in the year 2011 but the categorical stand of the complainant is that the credit card has expired without any transaction and even the credit card was not activated by the complainant. The opposite parties were to prove that complainant got activated and entered into any transaction. In reply, the opposite parties No. 1 to 3 have simply pleaded that complainant purchased HDFC Ergo Insurance Policy through credit card. On disclosure of this fact, the complainant got impleaded HDFC Ergo General Insurance Company Limited and HDFC Ergo General Insurance Company Limited also contested the complaint by filing written reply but in reply HDFC Ergo General Insurance Company Limited (opposite party No. 4) has nowhere alleged any transaction or purchase of policy by the complainant. The complainant has produced on record statement of accounts after getting produced the same from the opposite parties. These are Ex. C-9 to Ex. C-15. These statements will also prove that opposite parties have fabricated the record and there is no conclusive evidence of the use of credit card. In Ex. C-9, the opposite parties have recorded issuance of Ergo Insurance Policy and at the same time, the premium amount is credited to the account of the complainant. It is unbelievable that complainant will get issued insurance policy and get it cancelled on the same day. The opposite parties have also shown Rs. 989.92 due in Ex. C-9 to Ex. C-12 but all these amounts relate to same transaction. It is unbelievable that there will be various amounts under the same transaction. In the Ex. C-13 the opposite parties No. 1 to 3 have reflected due amount of Rs. 14,546.33 and in the next statement i.e. Ex. C-14, due amount is shown as Rs. 7141.72. These facts also show that opposite parties fabricated/manipulated the accounts. Therefore, all these facts shows deficiency in service and unfair trade practice on the part of the opposite parties. On the other hand, learned counsel for opposite party No. 4 i.e. HDFC Ergo General Insurance Company Limited submitted that of course the complainant has amended the head note of the complaint to implead HDFC Ergo General Insurance Company Limited, as party but no averments against HDFC Ergo General Insurance Company Limited, is made by the complainant. Therefore, opposite party No. 4 was having no occasion to rebut the averments of the complainant. When the complainant was in the knowledge that opposite parties No. 1 to 3 have reflected purchase of one insurance policy by complainant from opposite party No. 4, the complainant was to detail these facts in the complaint, only then the opposite party No. 4 was able to plead true facts before this Forum. As such, the complainant has not alleged any cause of action against opposite party No. 4. It has been unnecessarily dragged into litigation. The complaint is liable to be dismissed against it. The counsel for opposite parties No. 1 to 3 has submitted that this Forum has to decide the dispute specifically raised by the complainant. The only dispute raised by the complainant is that the opposite parties persuaded her to get issued credit card and she has never entered into transaction. Therefore, the scope of this complaint is limited to the fact that as to whether the complainant has used credit card or not. The complainant has not alleged any deficiency in service and excessive charges against the opposite parties. Therefore,whether the opposite parties have claimed due charges or excess charges is beyond the scope of this complaint. Had the complainant alleged these facts, the opposite parties would have explained the position in a better way. Therefore, only it is to be seen whether the complainant used credit card or not. The opposite parties have pleaded in reply that complainant has purchased HDFC Ergo Insurance policy through credit card and she has herself disclosed the details of the credit card on the basis of which she authorized HDFC Ergo General Insurance Company Limited to receive the payment. Of course, the complainant has impleaded HDFC Ergo General Insurance Company Limited, as party to the complaint, but she has not amended the complaint to impugne HDFC Ergo Insurance policy. When the categorical stand of opposite parties No. 1 to 3 is that the complainant used credit card for purchase of policy, this fact could have been decided only if the complainant in the complaint has denied this fact and afforded opportunity to opposite parties to explain true facts. The statements got produced by the complainant from the opposite parties are tendered into evidence by the complainant herself. These documents sufficiently prove that complainant used credit for purchase of HDFC Ergo Insurance policy. Therefore, it stands proved that complainant has used credit card. There cannot be any deficiency in service or unfair trade practices on the part of the opposite parties. We have carefully gone through the record and have considered the rival contentions. It is well settled that the points raised by the complainant is to be decided and the points which are not specifically raised in the complaint are beyond the scope of examination. In this complaint, the only stand of the complainant is that on the insisting of opposite parties she purchased credit card. It is further asserted by complainant that she has not availed any transaction through credit card and credit card was not activated by her. The complainant has not alleged any excess/unauthorized charges by the opposite parties. Therefore, the scope of this complaint is limited to the fact that whether the complainant used the credit card got issued from opposite parties No. 1 to 3 or not. It is not disputed that complainant got issued credit card. The categorical stand of opposite parties No. 1 to 3 is that complainant purchased HDFC Ergo Insurance policy through credit card. Of course after reply of opposite parties No. 1 to 3, complainant got impleaded HDFC Ergo General Insurance Company Limited as opposite party No. 4 but in the complaint no averments was levelled against opposite party No. 4. The complainant has also not alleged that she has not purchased any insurance policy of opposite party No. 4. In these circumstances, the opposite party No. 4 was not in a position to rebut the averments of the complaint and to detail the entire facts. The complainant herself has relied upon statements of account got produced from opposite parties No. 1 to 3 (Ex. C-9 to Ex. C-15). All these statements reveal that complainant used credit card for availing HDFC Ergo Premium Insurance policy for Rs. 11,879/- and complainant has not paid any part of this amount. Of course the counsel for the complainant has argued that opposite parties are claiming unnecessary charges but as the complainant has not disputed in the complaint the charges claimed by the opposite parties, therefore this aspect cannot be examined from the documents relied upon by the complainant. It is proved that complainant has used credit card got issued from opposite parties No. 1 & 2. Therefore, in such circumstances, no deficiency in service can be attributed on the part of the opposite parties. In view of what has been discussed, this complaint fails and is hereby dismissed with no order as to costs. However, it is made clear that this order will not effect the right of the complainant, if any, to challenge the amounts/charges claimed by the opposite parties, if she feels aggrieved by the same. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 01-08-2016 (M.P.Singh Pahwa ) President (Jarnail Singh ) Member
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