Tamil Nadu

South Chennai

740/2009

Mr.Dakshinamoorthy Dhandapani - Complainant(s)

Versus

ICICI Bank,/Manager & others - Opp.Party(s)

S.Anil Sandeep

05 Jan 2017

ORDER

                                                                        Date of Filing :   17.07.2009

                                                                        Date of Order :   05.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            

C.C.NO.740/2009

THURSDAY THIS  5^th DAY OF JANUARY 2017

Mr. Dakshinamoorthy Dandapani,

S/o. Mr. G.Dakshinamoorthy,

Door No.138, New No.42,

Bharatha Matha Street,

Chennai 600 059.                                        .. Complainant.

 

                        ..Vs..

1.  The ICICI Bank Ltd.,
Retail Asset Product Division,

Rep. by its Manager,

Old No.683, 3^rd and 4^th Floor,

Anna Salai, Chennai 600 002.

 

2. The ICICI Bank Ltd.,

Rep. by its Branch Manager,

No.236, Velacherry Main Road,

Selaiyur, Chennai 600 059.                                   ..Opposite parties.

 

Counsel for the Complainant           : M/s. S. Anil Sandeep and other

Counsel for the opposite parties      : M/s. S.Namasivayam & others

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.52,911.56 with interest and also to pay a sum of Rs.10,00,000/- as compensation for mental agony and to pay Rs.25,000/- as cost of the complaint.

1. The averments of the complaint are brief as follows:

         The complainant holds a savings bank account with the 2^nd opposite party, bearing the No.603 401 503 159 and the also the credit card account bearing No.5177 1942 2386 5004  is in the address of the complainant at Door No.138, New No.42, Bharatha Matha Street, Chennai 600 059.  All of a sudden, in Feb-March 2007 he received a short messaging service (SMS) from the ICICI bank that the complainant was due to pay a sum of Rs.30,000/- towards the credit card dues on card No.4076 5120 0632 8004 in which, the complainant had nothing to do with the said Danapalan Dhandapani nor was he a known person to the complainant.  

2.      The complainant had immediately informed the customer care service that he had not received any card nor any communication in the name of Danapalan Dandapani nor had he utilized or come across any credit card of the said person.   The fact was also made clear to the bank through many correspondences and communications through email between the complainant and the bank.   That all of a sudden, on 24.3.2008, the 2^nd opposite party has debited a sum of Rs.43,729.56 from the aforesaid S.B. account of the complainant,  towards the alleged dues on the credit card bearing No.4076 5120 0632 8004, belonging to the aforesaid Danapalan Dandapani.  The same was also reflected in the statement of accounts dated 3.5.2006 sent by the 2^nd opposite party to the complainant and thereby he has lost his hard earned money of Rs.43,729.56, due to the illegal acts of both the first and the 2^nd opposite parties and for no mistake committed by the complainant.   Both the 1^st and 2^nd opposite parties have committed a grave factual error and also have acted in a very high handed manner by adjusting and debiting the complainant’s monies towards the credit card account of some stranger who just bears a name similarly to that of the complainant which amounts to gross deficiency of service and also unfair trade practice.  

3.     Then the complainant had sent a notice through his lawyer dated 23.7.2008 to the opposite parties by RPAD, which was also received by them, but the same did not evoke any favourable response from them.   The complainant was forced to run from pillar to post.  Hence the complaint.

4. Written Version of  opposite parties are in briefly as follows:

       The complaint is not maintainable either in law or on facts and is liable to be dismissed inliminie.   The opposite parties deny all the allegations save those that are specifically admitted herein. The complainant signed an agreement for availing credit card facilities of ICICI bank subject to the terms and conditions incorporated in the agreement.   Based on the agreement he was given two credit card Nos.5177 1942 2386 5004 and 4076 5120 0632 8004.  The transactions between the complainant and the opposite parties is one of contract whereby the complainant has agreed to avail the personal facilities of the opposite parties subject to the conditions that in case of failure to pay for the services availed by him within the prescribed period, he will be charged interest and penal interest, to ensure that the money is promptly paid.   The charges including interest are strictly based on the agreement between the complainant and the opposite parties and in accordance with the guidelines of RBI.   Having received the credit facilities, based on agreement to abide by certain conditions, the complainant is stopped from going back on that.  

5.     Having received credit cards and availed the facilities he has with an ulterior motive referred to having availed only one card.   In this connection, it is submitted that the complainant was given two credit cards which were used by him and on which he has fallen due.   Having availed the facilities the complainant is bound to pay.  With reference to the allegations of the opposite parties having debited a sum of Rs.43,729.56 from S.B. Account of the complainant, it is submitted that under section 171 of Indian Contract Act 1872 the opposite parties have lien over the S.B account of the complainant and he can have no grievance what so ever on that count.  

6.    The allegations made in para 9 & 10 are not only false but highly defamatory.  In the absence of any deficiency of service, the allegations in para 11 are denied as absolutely false and baseless.  In the absence of deficiency of service, the question of mental agony does not arise.   In so far as other allegations are totally falsehood and in so far as there is no deficiency of service the complaint is liable to be dismissed as devoid of merit. 

7.    In order to prove the averments of the complaint, the complainant has filed proof affidavit  as his evidence and documents Ex.A1 to Ex.A14 marked.  Proof affidavit of opposite parties filed and Ex.B1 to Ex.B3 marked on the side of the opposite parties.

8.   At this juncture, the point for the consideration before this

        Forum is:  

 

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite parties as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

9. Point No.1

The case of the complainant is that in February-March 2007, all of a sudden he received a Short Messaging (SMS) from the opposite party that the complainant was due to pay  a sum of Rs.30,000/- towards the credit dues on card No.4076 5120 0632 8004 which was actually not issued to the complainant and it stands in the name of Danpalan Dandapani and thereafter on 24.3.2008  the 2^nd opposite party has debited a sum of Rs.43,729.56 from savings bank account of the complainant bearing No.4076 5120 0632 8004 and the same was reflected in the statement of account dated 3.5.2008 and to that effect a legal notice dated 23.7.2008 was issued to the opposite parties and the same also received by them, but the same did not evoke any favourable response from them which clearly amounts for deficiency of service on the part of the opposite parties.  

10.    On the other hand the opposite parties contended that the complainant was given two credit card Nos.5177 1942 2386 5004 along with  4076 5120 0632 8004 and therefore as per the terms and conditions of the credit card and provision of under section 171 of Indian Contract Act 1872 the opposite party had lien over the saving bank account of the complainant and hence the opposite party has done properly and therefore there is no deficiency of service on the part of them and hence the allegation made in the complaint are all baseless.

11.    In such circumstances, on careful perusal of evidence of the complainant and the opposite parties about the 1^st credit card No.5177 1942 2386 5004, it is learnt that it is narrated by the complainant that he was not issued any credit card bearing No.4076 5120 0632 8004 and not used by him.  It is further stated by complainant that his father’s name Dakshinamoorthy Dhandapani not as Dhanapal to prove the same Ex.A14 the ration card has been marked.  

12.    Further on careful perusal of Ex.A14 it is clearly mentioned that the father name of the complainant is Dakshinamoorthy.  So in this regard, the complainant has proved by means of acceptable evidence.   Therefore, there is no hindrance to conclude that the father name of the complainant is one Dakshinamoorthy not as Dhanapal.   Such being so, on perusal of Ex.A1 it is clear that the outstanding balance of Rs.43,729.56.  It is further noticed from the evidence of the complainant, Ex.A2 to Ex.A10 is the email communications between the complainant and the opposite parties regarding the dispute as well as discrepancy pertaining two credit card Nos.5177 1942 2386 5004 &  4076 5120 0632 8004 since the complainant had vehemently disputed about the issuance and usage of credit card bearing No.4076 5120 0632 8004.

13.       It is further learnt that, in respect of the saving bank account No.603401503159 there is no dispute at all and the statement of accounts for the said saving bank is marked as Ex.A10.  On seeing Ex.A10 statement, it is crystal clear that on 12^th March 2008 for Rs.560/- has been debited for the credit card account No.5177 1942 2386 5004 which is not disputed by the complainant but the debit of Rs.43,729.56 for the credit card account No.4076 5120 0632 8004 is disputed by stating that the complainant is no way connected to the said credit card.  It actually stands in the name of Dhanapal Dhandapani.  Hence he has suffered lot hardship and therefore he issued a legal notice Ex.A11 to the opposite parties and the acknowledgment for the receipt of the same is marked as Ex.A12 and Ex.A13 respectively.   From the fore-going evidence, as already found that the father name of the complainant is Dakshinamoorthy the credit card bearing No.5177 1942 2386 5004 used by the complainant,  whereas the credit card bearing No.4076 5120 0632 8004  which stands in the name of Dhanapal Dhandapani.  In such circumstances it is the duty of the opposite party to prove the said card would have been used only by the complainant, since the complainant fully denied  the message of the said card.

14.    In such circumstances  it is needless to say that the burden of proof clearly shifted to the shoulder of the opposite parties.   At the outset, on going through the evidence of the opposite parties it is stated that based on the agreement both the card bearing Nos.5177 1942 2386 5004, & 4076 5120 0632 8004 were given to the complainant and having issued credit card and the complainant availed the facility with ulterior motive, stated that he is having only one card and in order to prove Ex.B2 the statement of account pertaining to the credit card ending with No.5004 and Ex.B3 the copy of the credit card application form with enclosure ending with card No.8004. 

15.    At  this instance, first of all on careful perusal of  Ex.B2 series, it is seen that in all statements the name is mentioned as D.Dandapani only not as Dhanapal Dandapani.  It is further learnt that regarding the Ex.B2 series which is pertaining to the credit card No.5177 1942 2386 5004 and there is no default of payment.  At this juncture on going through Ex.B3 series the document i.e. application form it is clearly mentioned that the father  name of the applicant is Dhanapal but not as Dakshinamoorthy.   Though the residential address as well as official address found in the application are one and the same as in the ration card which is not enough to conclude that the said application was pertaining to Dakshinamoorthy Dandapani who is complainant herein.

16.    Furthermore, it is pertinent to note that from the application column shown as, credit evaluation sheet in the bottom under the credit details the No. of the primary card issued to the No.4076 5120 0632 8004 and the Add on card No. ending with 8103.  In this place also it does not find the No. of the credit card No. ending with 5004.  In such situation, there is no statement of accounts for usage of the above said credit card ending with 8004 not at all filed by the opposite parties.  Moreover, for argument stage, if it is taken as that ending with 8004 was also issued to the complainant, certainly there was an application filled by the applicant if it is so, what hindrance to the opposite parties to file the said application form submitted by the complainant for issuance of the credit card ending with 5004 in order to prove that the name of the father mentioned as if one and the same in  both the application.   But for the reason best known to the opposite parties, no such document produced by the opposite parties.    Therefore, it is goes without saying that the opposite parties have failed to prove the allegation made against the complainant in respect of the credit card No.5120 0632 8004 and thereby the deficiency of service on the part of the opposite party as clearly proved.

17.    In the light of the above facts and circumstances this forum concludes that the complainant has proved the deficiency in service committed by the opposite parties.  Thus the point No.1 is answered accordingly.

18.    POINT No.2

          As per the decision arrived in point No.1, the complainant is entitled for a sum of Rs.52,911.56 with  interest at the rate of 9.5% p.a from the date of  filing of this complaint i.e. 17.7.2009  to till the date of this order and reasonable compensation for causing mental agony due to the deficiency in service on the part of the opposite parties. with cost. Thus the point No.2 is also answered accordingly.

In the result the complaint is allowed in part.  Accordingly the opposite parties 1 & 2 are jointly and severally   directed    to  pay a sum of Rs.52,911.56 (Rupees Fifty two thousand nine hundred and eleven and fifty six paisa only) with interest at the rate of 9.5.% p.a. from the date of filing of this complaint i.e 17.7.2009 to till the date of this order (5.1.2017) and also to pay a sum of Rs.10,000/-  (Rupees ten thousand only) as compensation towards mental agony and hardship due to deficiency in service on their part and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards the cost of the complaint to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th  day  of  January 2017.

 

MEMBER-I                                                                        PRESIDENT.

Complainant’s side documents:

Ex.A1- 21.12.2007-Copy of emails between the complainant the opposite parties.

Ex.A2- 18.12.2007- Copy of emails between the complainant the opposite parties

Ex.A3- 17.12.2007    - Copy of emails between the complainant the opposite parties

Ex.A4-7.12.2007    -  Copy of emails between the complainant the opposite parties.

Ex.A5- 25.11.2007    - Copy of emails between the complainant the opposite parties.

Ex.A6- 23.11.2007    - Copy of emails between the complainant the opposite parties

Ex.A7- 21.11.2007    - Copy of emails between the complainant the opposite parties

Ex.A8- 9.4.2007       - Copy of emails between the complainant the opposite parties

Ex.A9- 6.3.2007       - Copy of emails between the complainant the opposite parties

Ex.A10- 3.5.2008      - Copy of Statement of accounts of the 1^st opposite party.

Ex.A11- 23.7.2006    - Copy of legal notice.

Ex.A12-         -       - Copy of Ack. card.

Ex.A13- 29.4.2009    - Copy of Ack. card.

Ex.A14- 2005-2009   - Copy of Ration card of the complainant.

 

Opposite parties’ side document: -

Ex.B1-         -        - Copy of agreement.

Ex.B2- Sep’2006   - Copy of Statement of accounts of card of endings 5004.

Ex.B3- 29.4.2006  - Copy of credit card application form of card No. ending

                              8004.

 

 

MEMBER-I                                                                  PRESIDENT.