Delhi

StateCommission

FA/12/999

PRADEEP BHATIA - Complainant(s)

Versus

ICICI BANK - Opp.Party(s)

08 Jan 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:08.01.2016

First Appeal- 999/2012

(Arising out of the order dated 20.10.2012 passed in Complainant Case No. 269/2010 by the District Consumer Disputes Redressal Forum (North), Tis Hazari, Delhi)

Pradeep Bhatia,

141/3, New Qutub Road,

Teliwara, Sadar Bazar,

Delhi-6.

                                                        ….Appellant

Versus

ICICI Bank,

Rui Mandi,

Sadar Bazar,

Delhi-6.

….Respondent

CORAM

Justice Veena Birbal, President

OP Gupta, Member(Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge is made to order dated 20.10.12 whereby the Consumer Disputes Redressal Forum (North), Tis Hazari, Delhi (in short, “the District Forum”) has dismissed the Complaint Case No. 269/2010.
2. Briefly the facts are that the appellant herein i.e. complainant before the District Forum had filed a complaint under Section 12 of the Act alleging therein that he had been maintaining Current Account No.033105003263 with respondent/OP.  It was alleged that he had been provided with the facility of EDC (Credit/Debit Card Swipe Terminal) bearing MID No.50095805 and TID No.43111906.  It was alleged that due to change of branch, his account number was changed to 629505039854, as such he  requested the respondent/OP to change the account number for the facility of EDC bearing MID No.50095805 and TID No.43111906 but the OP did not change the account number.  On the aforesaid facts, the appellant/complainant had made prayer that respondent/OP be directed to change the account number to 629505039854 and to pay him Rs.50,000/-compensation towards mental agony and harassment and Rs.10,000/- towards cost.
3. The respondent/OP had filed a written statement before the Ld. District Forum wherein it was alleged that the appellant/complainant had been maintaining current account with respondent/OP. It was alleged that the appellant/complainant was carrying on business in the name of “Arya Cane Industry” and was availing the services of the respondent/OP for commercial purpose, as such he was not a ‘consumer’ as defined under the Act.  It was further alleged that he was a habitual litigant.  On merits it was not denied that the account of the appellant was shifted from Ashok Vihar Branch to Rui Mandi Branch and old account of the respondent/complainant was closed and new account bearing No.629505039854 was opened at Rui Mandi Branch.  It was denied that complainant had made any request to transfer EDC bearing MID No.50095805 and TID No.43111906 from earlier account to new account as was alleged.  It was also denied that any amount swapped in the EDC machine was transferred to suspense account as was alleged.
4. Both the parties filed evidence by way of affidavits before the District Forum.  After hearing the appellant/complainant and the Counsel for the respondent/OP, the Ld. District Forum dismissed the complaint on the ground that the appellant/complainant is not a ‘consumer’ as defined under Section 2(1)(d) of the Act.  It was held that for the purpose of running business, the appellant/complainant was availing the services of respondent/OP.  Ld. District Forum in arriving at said finding had relied upon statement of account supplied to the appellant/complainant by respondent/OP.  The Ld. District Forum also relied upon judgement of National Commission in Sushma Goel vs Punjab National Bank, II (2011) CPJ 270 (NC).
5. Aggrieved with the aforesaid order, present appeal is filed.
6. The appellant/complainant did not appear at the time of arguments.  A request letter was sent by him through his employee requesting for disposal of the appeal.
7. The main ground of challenge of Ld. District Forum’s order is that respondent/OP is rendering services against payment as such the appellant/complainant is a ‘consumer’ within the meaning of the Act.
8. The contention of respondent/OP is that the Ld. District Forum has examined the record and thereafter has given its finding that appellant/complainant is not a ‘consumer’.  It is contended that the impugned order is legal and valid in all respect.
9. It is appellant’s/complainant’s own case that current account is being maintained with the respondent/OP.  Earlier the account number was 033105003263 and after the change of branch, the account number is changed to 629505039854.  His further case is that whenever he sells goods and swipes the card of a customer, the money gets credited to old account and is being kept by respondent/OP in suspense account meaning thereby that the services of bank are availed for commercial purpose.  Even the respondent/OP has filed an affidavit stating therein that the appellant/complainant is availing services for the commercial purposes and as such is not a ‘consumer’ under Section 2(1)(d) of the Act. Reading the complaint itself, the appellant/complainant cannot be said to be a ‘consumer’.  It is also not his case that he is running the business for earning livelihood.  In this regard, observation of Ld. District Forum in the impugned order is relevant.  The same is reproduced as under:

“6. During the course of argument the complainant was specifically asked that in his complaint, there is no averment that he has been running business by way of self-employment to earn livelihood, yet he did not take any step to explain his status.  The position is that the complainant has only alleged that he has been running business and availing current account facility provided by the O.P. Bank.”

 

10. In Economic Transport Organization vs Charan Spinning Mills (P) Ltd. & Anr., I (2010) CPJ 4 (SC), the Hon’ble Supreme Court has laid down that when services were availed for commercial purpose, then the person availing the service will not be a ‘consumer’.  The relevant portion of the judgement is reproduced as under:

“25. We may also notice that Section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’.  After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases.  But the said amendment will not apply to complaints filed before the amendment.”

11. In Sushma Goel vs Punjab National Bank, II (2011) CPJ 270 (NC), the National Commission has held that if complaint relates to operation of Bank account maintained by commercial organization for commercial purpose, in that case the complainant will not be a ‘consumer’.
12. In Subhash Motilal Shah (HUF) and Ors. v. Malegaon Merchants Co-op. Bank Ltd., 1 (2013) CPJ 34A (NC) (CN), the petitioner, ‘HUF’, therein had opened a current account to be used for commercial purpose.  The National Commission held that it was not a ‘consumer’ vide its order dated 12.2.2013 and the SLP filed against the said order, was dismissed by the Apex Court in Civil Appeal No. 39200/2013, dated 13.1.2014.
13. In view of above discussion, the appellant/complainant does not qualify to be a ‘consumer’ for the purposes of the Act.  Therefore, in our view, the Ld. District Forum has rightly rejected the complaint case filed by appellant/complainant.
14. We don’t find any ground to interfere with the impugned order.  The appeal stands dismissed with no order as to cost.
15. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned

District Forum.  The record of the District Forum be sent forthwith.  Thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

(OP Gupta)

Member(Judicial)

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