DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 99 of 27.3.2008 Decided on : 11.8.2008 <br /> <br /> Pawan Kumar Kansal S/o Sh. J.R Kansal, R/o House No. 20347-A, Street No. 30/2, Ajit Road, Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.ICICI Bank Ltd., through its ECO and MD, ICICI Bank Ltd., ICICI Bank Towers, North Towers, Bandra-Kurla Complex, Bandra (East), Mumbai-400 051.<br /> 2.Branch Manager, ICICI Bank Ltd., Barnala Road, Near DAV College, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. S.K Singla, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal,Advocate <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to reverse the entry of Rs. 71,137.66 dated 31.1.2008;pay Rs. 1,00,000/- as compensation/damages, besides costs of the complaint.<br /> 2. Succinctly put, the version of the complainant is that he is working as Additional Superintending Engineer with Punjab State Electricity Board and is presently posted in Hargobind Thermal Plant, Lehra Mohabbat. He is enjoying very good reputation among relations, friends and colleagues. He has a Saving Bank A/c No. 016301007447 with opposite party No. 2 which is being maintained by him since long. He is maintaining good credit balance in it. As per the statement issued by the opposite parties, there was credit balance of Rs.64,725.39 in his account as on 31.12.2007. From January, 2008 upto 11.2.2008, some amounts were deposited and some were withdrawn. As per the accounts maintained by him from 1.1.2008 to 11.2.2008 a sum of Rs. 40,815.88 was got credited by him in the account with opposite party No.2. As per the accounts presently maintained by him, there should have been a credit balance of Rs. 1,05,540.67 in his account with opposite party No.2. Depending upon this presumption, cheque bearing No. 331964 for Rs.75,000/- was issued by him favouring Mr. Manoj Kumar who is his good friend with an idea that it would be cleared as there was sufficient credit balance in his account. Manoj Kumar is doing business and the amount was required by him to cater his business needs for a short period. On 10.3.2008, Mr. Manoj Kumar had come to him and had thrown cheque No. 331964 on his office table telling that it has been dishonoured by the Bank for want of sufficient funds in his account. He (Manoj Kumar) was in anger and told him (complainant) in loud tone saying that when sufficient funds were not there, he should not have issued the cheque. An effort was made by the complainant to pacify him saying that there was sufficient credit balance in his account but he failed to understand why cheque has been dishonoured by opposite party No. 2 for insufficient funds. Mr. Manoj Kumar narrated the whole story to his colleagues and left the office in a huff. Thereafter, he never called upon him although he was a frequent visitor to him. Request was made by him (complainant) to opposite party No. 2 to supply copy of the statement of account from 1.1.2008 to upto date which was supplied. On going through it, it came to his notice that on 31.1.2008 opposite party No. 2 has debited Rs.71,137.66 to his account of its own and that is why cheque issued in favour of Manoj Kumar for Rs. 75,000/- was dishonoured for insufficient funds. He further avers that he had neither authorised nor instructed opposite party No. 2 to debit Rs.71,137.66 to his account. He tried his best to know the reasons for which this amount was debited to his account but he could not get any satisfactory reply from the officials of opposite party no.2. Further request was made to reverse the entry of Rs. 71,137.66 dated 31.1.2008 as the amount was debited without any instructions and authorisation but opposite party No. 2 flately refused to do so. He alleges that opposite parties have adopted unfair trade practice. They are deficient in providing services. Arbitrary act of the opposite parties has hampered his reputation and has caused him harassment, mental tension, agony and loss to his reputation.<br /> 3. On being put to notice, opposite parties filed their version taking legal objections that complaint is bad for non-joinder of ICICI Bank Credit Card Unit; complainant is not their consumer; complaint has been filed on false facts and by concealing material facts; it requires elaborate evidence and as such, it is liable to be dismissed for want of jurisdiction and there is serious dispute with regard to the amounts deposited and amount withdrawn and as such, only remedy available to the complainant is to file suit for rendition of accounts. Complainant is having Credit Card No. 5176533530942009. A sum of Rs. 71,137.66 was used by him through credit card due to which this amount was due against him as per the terms of that card. Accordingly, this amount was withdrawn by ICICI Credit Card Unit. They admit that complainant is having Saving Bank Account and there was credit balance of Rs. 64,725.39 as on 31.12.2007. He was not having balance of Rs.1,05,540/-. He has also concealed that instalment of loan was also paid by him out of Saving Bank Account to the tune of Rs. 10,350/-. On 31.1.2008, he was having credit balance of Rs.44,772.01 in his account. He was well aware about the available balance in his account. So far as Manoj Kumar is concerned, he is the person of the complainant. They deny the remaining averments in the complaint. <br /> 4. In support of his allegations and averments in the complaint, Pawan Kumar complainant tendered into evidence his own affidavit (Ex.C.1), photocopies of statement of accounts (Ex.C.2,Ex.C.3 & Ex.C.9), photocopy of cheque dated 15.2.2008 (Ex.C.4), photocopy of cheque returning memo dated 18.2.2008 (Ex.C.5), photocopies of payment receipts (Ex.C.6 & Ex.C.7), photocopy of credit card statement of account (Ex.C.8) and photocopy of proforma of Credit Card Application Form(Ex.C.10).<br /> 5. On behalf of the opposite parties, reliance is placed on affidavit (Ex.R.1) of Sh. Amit Ahuja Branch Manager, Compact Disc (C.D)(Ex.R.2), photocopy of account statement (Ex.R.3), photocopy of application credit evaluation Sheet (Ex.R.4), photocopy of Credit Card Application Form (Ex.R.5), photocopy of application form for credit card (Ex.R.6),Version of C.D (Ex.R.7 & Ex.R.8).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted on behalf of the opposite parties. <br /> 7. Mr. Goyal learned counsel for the opposite parties argued that this complaint is not maintainable before this Forum as it pertains to rendition of accounts. Moreover, detailed oral as well as documentary evidence is required which can be taken only in the civil court and that too by way of adding ICICI Credit Card unit as party.<br /> 8. Mr. Singla learned counsel for the complainant countered these arguments by submitting that this Forum is well within its right to entertain and try the complaint as opposite parties have already produced evidence which is sufficient for adjudicating the matter in controversy.<br /> 9. We have given our thoughtful consideration to the rival arguments. In para No. 4 of the complaint, there is specific averment of the complainant that during the month of January,2008 upto 11.2.2008 as per accounts maintained by him, he had deposited some amount in his saving account (016301007447) and some amount was withdrawn by him from his this account. From 1.1.2008 to 11.2.2008 overall an amount of Rs. 40,815.88 was got credited by him in his account with opposite party No.2. As per account personally maintained by him, there should have been a credit balance of Rs.1,05,540.67 in his account with opposite party No.2. Opposite parties in the reply of the complaint have denied the averment in this para stating that he was not having balance of Rs.1,05,540.67. Their plea is that he has concealed that instalment of loan was paid by him out of the saving bank account and instalment is of Rs. 10,350/- per month. He is having credit card No. 5176533530942009 and he had used amount of Rs. 71,137.66 through credit card. This amount was due against him and was withdrawn by ICICI Credit Card Unit. On 31.1.2008, he was having balance of Rs.44,772.01 in his account. In our view, detailed oral and documentary evidence is required as to how much amount was deposited and on which date during the month of January, 2008 upto 11.2.2008. Evidence to this effect is lacking. In view of the averments, this case relates to rendition of accounts as complainant asserts that upto 11.2.2008, a sum of Rs. 40,815.88 was got credited by him in his saving bank account and there should have been credit balance of Rs. 1,05,540.67 in his account. Opposite parties are denying this fact. They allege that complainant is having credit card No.5176533530942009 and he has used the amount of Rs.71,137.66 through it and it was due towards him. This amount was withdrawn by ICICI Credit Card Unit and as on 31.1.2008, there was credit balance of Rs.44,772.01. In the written arguments, stance of the opposite parties is that infact he has purchased insurance policies from ICICI Lombard General Insurance Co on phone and this fact has been recorded on voice recording system and the amount which has been withdrawn is regarding the instalments of the insurance policies. They allege that complainant has concealed the factum of purchase of the insurance policies. Compact Disc (C.D) in which consent regarding the purchase of the insurance policies has been given by the complainant is already on the file and through voice recording system, voice of the complainant has been recorded in which he has authorised the withdrawal of the amount of Rs. 71,137.66. Opposite parties have also placed on record copy of the C.D (Ex.R.2) and the written version of the C.D as Ex.R.7 & Ex.R.8. A perusal of Ex.R.7 and Ex.R.8 reveals that C.D was prepared by Sahil and Shibu officials of ICICI Bank. No time and date of making the C.D has been given in them. Affidavits of Sahil and Shibu are not on the record. ICICI Lombard General Insurance Co. and ICICI Credit Unit of ICICI Bank are not parties to this complaint. No expert has been examined by either of the parties to confirm that the voice recorded in the C.D pertains to the complainant or not. Copies of the insurance policies allegedly purchased by the complainant for his issues though credit card are not on the record. They have not been produced. Evidence concerning the existence/non existence of the policies is essential for arriving at a conclusion as to whether the amount of Rs.71,137.66 has been used by the complainant through credit card nor not. Even if they are existing, premium schedule of each policy is required to know the amount of instalments of each of the policies. In our view, there is necessity for comparison of the voice of the complainant with the voice recorded in the C.D. For that expert can be examined whose examination and cross-examination would be required. We are further of the view that it is such a case where examination and cross examination of Sahil, Shibu and complainant may be required to arrive at a correct conclusion. Whole case hinges on the alleged use of Rs.71,137.66 by the complainant through credit card and the withdrawal of the same by the ICICI Credit Card Unit. Complainant in his affidavit Ex.C.1 asserts that he has used the credit card twice only i.e. on 2.8.2006 and 3.8.2008. Used amount is of Rs. 6,474/- and Rs.6,474/- respectively. He has made payment of this amount vide cheque No.413557 dated 19.8.2006. There is serious dispute with regard to the genuineness of the voice recorded in the C.D. The affidavits of Shibu and Sahil who allegedly recorded the voice are not on the file.<br /> 10. Proceedings under the Consumer Protection Act are summary in nature. Adjudication of the issues which involve disputed factual questions which have been referred to above regarding this case is not warranted by this Forum. In this view of the matter, we get support from the observations of their Lordships of the Hon'ble Apex Court in the case of Oriental Insurance Co. Ltd. VS. Munimahesh Patel-2006(3)Apex Court Judgments-365 (S.C). As discussed above, there is version and counter version relating to accounts due to which complaint is not maintainable. For this, we are fortified by the observations of Hon'ble National Commission in the case of Aggarwal Dyeing Industries Vs. Rajasthan Financial Corporation and others-1991 CPJ-341. Hon'ble State Commission of Punjab has also expressed the same view in the case of K.K. Foams Industries & Another Vs. Punjab Financial Corporation & Another-2004(2)JRC-30. Reference can also be made to the authorities Ashok Leyland Finance Ltd. Vs. Himanshu S. Thumar-2005-CTJ-791 (CP)(SCDRC), Vishal Roadways Vs. Economic Traders (Gujarat)Ltd.-III(1998)CPJ-9(NC), M/s. House of Dubary Vs. New Bank of India-1991-CPC-391(NC) and Kehar Singh Vs. M/s. Satish Kumar Surinder Kumar -1997(1)CPC-589.<br /> 11. In view of what has been discussed above, complaint before this Forum is not maintainable. Accordingly, merits of the case are not being touched. Complaint is, therefore, dismissed with no order as to costs.<br /> 12. Before parting with this order, it is made clear that complainant is at liberty to approach Civil Court for getting his grievances redressed, if so advised and permitted by law.<br /> 13. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced <br /> 11.8.2008 (Lakhbir Singh)<br /> President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> 'bsg' <br /> <br />