By: Sri. Mohandasan K., President
1. The complainant purchased a mobile phone Nokia 7.2 on 28/12/2019 from the second opposite party shop on EMI scheme. While the complainant approached the second opposite party for the mobile phone, he called the first opposite party to the shop and the first opposite party availed finance under EMI scheme to the complainant. As per the scheme the complainant was liable to remit Rs.2,673/- per month from 05/02/2020 and which ends on 05/08/2020. The complainant remitted all the installments duly but after closing the loan account the complainant came to know that the first opposite party has realized Rs.117/- from his account on 15/04/2021, which was done without the knowledge and consent of the complainant. The submission of the complainant is that all the transaction between the complainant and the first opposite party had closed on 05/08/2020 itself. The complainant apprehends that the opposite party will further grab money from her account. Hence the prayer of the complainant is that to restrain the opposite parties from taking money from the account of the complainant and also providing adequate cost and compensation for the unfair trade practice on the side of the opposite party.
2. On receipt of complaint notice was issued to the opposite party and the first opposite party entered appearance and filed version denying the entire averments and allegations in the complaint.
3. The first opposite party contended that the opposite party Bajaj finance limited (BFL) is a non-banking finance company incorporated under the provisions of companies act and it has got registered office at Mumbai. But the present complaint has been filed against Bajaj fin serve limited and that the loan has been financed by Bajaj finance limited and not by Bajaj fin serve limited. The submission of the opposite party is that Bajaj fin serve limited is not engaged in business of financing of consumer durables to the end consumers as alleged in the complaint. It is also submitted that Bajaj fin serve limited does not have any branch office anywhere in India and so the allegation of complainant in the present complaint is false and misleading. The Bajaj fin serve limited is the holding company of Bajaj finance limited and both are distinct legal entities. The opposite party submitted that the complainant availed loan from Bajaj finance limited and he has not made Bajaj finance limited as party to the complaint.
4. The opposite party submitted that the complaint is not maintainable against the opposite party both in fact and law as complainant has suppressed the material facts from the commission and not approached with clean hands.
5. The opposite party submitted that the complainant had purchased a Nokia mobile phone from the second opposite party and subsequently availed a loan from the first opposite party vide loan account number 5S9DPFF Q122270 for Rs.18,500/- dated 29/12/2019 with monthly EMI of Rs.2,643/- for a contract period 7 months commencing from 05/02/2020 and ending on 05/08/2020. The complainant had issued NACH mandate / auto debit for the repayment of the installments and the complainant has paid all the EMIs on the due date without any default except for the EMI No.4 which got dishonored due to the reason of “insufficient funds” inter alia and the bouncing charge of Rs.454/- was levied by the opposite party on the account which are as per the terms and conditions, the same was paid at a later date in cash. The first EMI installment was paid by the complainant and an amount of Rs.30/- was also included in the instalment amount of Rs.2,673/- towards the CIBIL report fees which are again as per the terms and conditions.
6. The opposite party duly sent the reminders to the complainant on his registered mobile number before the EMI due dates reminding to him to maintain sufficient balance in his respective bank account. The complainant failed to maintain the sufficient balance in his account. Now the malicious intention and to take shelter of this commission filed this complaint. It is the usual practice if any customer is not maintaining sufficient balance in his bank account and his / her loan EMI cheque /auto debit mandate not being honored then said customer has to pay the bouncing charges to his banker where he /she maintains the saving bank account and to his / her creditor from who he /she has availed loan. The opposite party submitted that instead of collecting the alleged charges on respective due dates, the bank of the complainant has collected these charges on subsequent base as per his convenience. It is also submitted that it can be verified by bare perusal of narration of alleged transaction entries were in this opposite party has specifically mentioned the mandate failure dates and so the opposite party cannot be held responsible to pay any compensation as it is not a fault or deficiency in services on the part of the opposite party. The opposite party submitted that they have not deducted excess amount but deducted only those charges which the opposite party is entitled to receive. The opposite party submitted that if there was issue of excess deduction the complainant should have taken the matter with his banker. The complainant had not maintained the sufficient balance in his bank account despite various reminders, bouncing charges have been levied against the complainant by the opposite party as well as the banker of the complainant who has not been impleaded as party to the said complaint.
7. The opposite party also submitted that the loan account is already closed, the no objection certificate was also ready being issued and so there is no cause of action and the complainant stands in fructuous. The complaint preferred by the complainant is baseless, frivolous and formulated on wrong and misleading facts and is devoid of any merits. There is no cause of action against the opposite party and the amount paid by the complainant to the opposite party is reflecting in the loan account statement. The opposite party submitted that they never indulged in the unethical practice of feeling its customers through excess charges or unauthorized deduction or that any kind of unfair trade practice has been followed by the opposite party.
8. The opposite party submitted regarding deduction of Rs.117/- that the complainant himself had availed the EMI card since he was a good customer and had been paying the EMIs on the due date, thus the charges of Rs.117/- was imposed towards the card renewal charges. The complainant is well aware about the terms and conditions of the EMI network card, its joining and annual membership fees and other charges. The complainant had duly consented to avail the said card being an existing customer of the opposite party having fully known its terms and conditions by knowing the document “master terms and conditions applicable to loans consumer durable, digital life style products and EMI network cards”. The contention is specific that an annual fee would be levied on the said card in case of no loan being availed in the preceding year. Since the complainant was no more interested in the said EMI Card the same was blocked in July 2020 already after the complainant himself had raised the request at the branch office for cancellation.
9. The opposite party submitted that they have not collected any excess amount from the bank account of the complainant and so question of return of any amount to the complainant does not arise. It is common practice then if any customer is not maintaining sufficient balance in his / her bank account and his / her loan EMI cheque / auto debit mandate not being honored then the said customer has to take the bouncing charges to his bank where he /she maintained savings bank account and to his / her creditor from whom he /she has availed loan. The complainant’s bank has collected the bouncing charges for which the opposite party is not responsible and not liable to pay any compensation as it is not fault or deficiency in service on the part of the opposite party. It is further submitted that the opposite party can only present the EMI cheque or auto debit mandate for clearance and it is up to the banker either to the honor the said EMI basis on the balance available in respective customer’s bank account. The complaints bank has returned the alleged cheque with reason insufficient funds and for that seeking clarification from the bank of complainant the complainant was filed this false complaint against the opposite party. So, the submission of the opposite party is that the present complaint is without any merit, frivolous, vexations and liable to be dismissed.
10. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A3. The document on the side of opposite party marked as Ext. B1 to B5. Ext. A1 is photo copy of account transaction between the complainant and the opposite party. Ext. A2 is copy of pass book of the complainant maintained with SBI, branch Mongam. Ext A3 is retail invoice issued by the second opposite party dated 28/12/2019 of Rs.18,499/-. Ext. B1 is copy of power of attorney Ext.B2 is copy of print of trade mark certificate, Ext. B3 is copy of registration certificate of Bajaj Fin serve Limited. Ext. B4 is copy of registration certificate of Bajaj Finance Limited. Ext. B5 is copy of statement of account.
11. Heard both sides. Perused affidavit and documents.
The following points arise for consideration -
- Whether there is deficiency in service and unfair trade practice on the part of the opposite party?
- Relief and cost?
12. Point No.1 &2
The opposite party admitted the transactions alleged by the complainant. But the opposite party denied the allegations of the complainant. The contention of the opposite party is that the complainant filed complaint against Bajaj fin serve limited but the loan has been financed by Bajaj finance Limited and not by Bajaj fin serve limited. It is also contended that Bajaj fin serve limited is not engaged in business of financing of consumer durables to the end consumers as stated by the complainant. The opposite party also submitted that Bajaj fin serve limited does not have any branch office anywhere in India and so the allegation of complainant in the present complaint is false and misleading. The contention of opposite party is that the Bajaj fin serve limited is the holding company of Bajaj finance limited and both are distinct legal entities.
13. The Commission on admission of the complaint issued notice to the first opposite party in the address given in the complaint which was duly served to the opposite party and postal acknowledgment was received on 22/10/2021. The acknowledgment is signed on behalf of the opposite party with seal of Bajaj finance limited Malappuram. The notice was addressed to manager, Bajaj fin serve, second floor golden mall, AK Road near bus stand, Kottapadi, Malappuram. The complainant submitted before the Commission that he approached the second opposite party for the mobile phone and the second opposite party in turn called the employee of the first opposite party and the employee of the first opposite party reported before the second opposite party and the financial facility was provided through the first opposite party. The first opposite party filed version and contended that the Bajaj fin serve limited is not engaged in business of financing of consumer durables to the end customers as alleged in the complaint. It is further stated that Bajaj fin serve limited does not have any branch office anywhere in India and hence the allegation of the complainant is false and misleading. It is also contended that they are two distinct entities. If that is being fact there is no reason to file version on behalf of the first opposite party by the Bajaj finance limited. It is definite that on receipt of notice to the first opposite party addressed to Bajaj fin serv and bearing seal of Bajaj finance limited make it appear both entities are under the protection of single roof. The act of the opposite party makes false impression among the consumers / customers. The contention that Bajaj fin serv have no branch office anywhere in India cannot be accepted in the light of the fact brought out in this complaint.
14. The contention of the opposite party is that they have not acted illegally or not extracted money from the bank of the complainant. But the complainant produced Ext. A1 that an amount of Rs.117/- has been debited from the account of the complainant which is long after the closing of EMI transaction. The opposite party admit that there is no amount is due from the complainant to the opposite party but it is contended that the complainant availed EMI cared since he was a good customer and had been paying the EMIs on the due date thus the charge of Rs.117/- was imposed towards the card renewal charges. The contention of the opposite party is that complainant was well aware about the terms and conditions of the EMI network card, its joining and annual member ship fee and other charges. It is contended that the complainant has duly consented to avail the said card being an existing customer of the opposite party, having fully known its terms and conditions by acknowledging the documents “master terms and conditions applicable to loans for consumer durable, digital life style products & EMI network cards.” The submission of the opposite party is that the terms and conditions as mentioned in the document very clearly specified that an annual fee would be levied on the said card in case of no loan being availed in the preceding year. The opposite party admitted that the complainant being no more interested in the said EMI Card the same was blocked in July 2020 and the complainant had raised the request at the branch office for cancellation. So, it is evident that the opposite party deducted Rs.117/- from the EMI card but that was with the consent and approval of complainant. But the opposite party has not produced any document to establish the contention regarding the consent of the complainant for the subscription of member ship and the terms and conditions of the EMI network card. Though the opposite party produced Ext. B1 to B5 none of the document revealed approval of complainant towards the terms and conditions of the network card. The complainant raised objection against the deduction of amount from the account before the opposite party and the opposite party duly blocked the deduction from the account of complainant. But the fact remains that the opposite party without any legal authority deducted an amount Rs.117/- from the account of complainant. The opposite party content that an annual fee would be levied on the EMI network card in case of no loan being availed in the preceding year. It is very clear that the opposite party insists the complainant to be a loanee forever and if no loan has been availed, he has to pay to the opposite party. The act of the opposite party amounts apparent unfair trade practice and deficiency in service. We find there is merit in the contention of the complainant that the opposite party is prepared to deduct amount from the account of the complainant under the guise of EMI network card and for that legal sanction is there. So, it will be proper to give direction to the opposite party that not to credit any amount from the account of complainant without prior approval and consent and the opposite party is directed to pay compensation of Rs.25,000/- to the complainant on account of unfair trade practice and thereby caused inconvenience and hardship to the complainant. The opposite parties also directed to pay an amount of Rs.5,000/- as cost of the proceedings.
In the alight of above facts and circumstances we allow this complaint as follows
- The first opposite party is directed to pay Rs.25,000 /- to the complainant on account of unfair trade practice and deficiency in service and thereby caused inconvenience and hardships to the complainant
- The first opposite party is directed to pay Rs.5,000/- cost of the proceedings
The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the entire above amount shall carry interest at the rate 12% per annum from the date of filing this complaint till realization.
Dated this 8th day of November, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A4
Ext.A1: Photo copy of account transaction between the complainant and the opposite
party.
Ext.A2: Copy of pass book of the complainant maintained with SBI, branch Mongam .
Ext A3: Retail invoice issued by the second opposite party dated 28/12/2019 of
Rs.18,499/-.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B5
Ext.B1: Copy of power of attorney
Ext.B2: Copy of print of trade mark certificate,
Ext.B3: Copy of registration certificate of Bajaj Fin serve Limited.
Ext.B4: Copy of registration certificate of Bajaj Finance Limited.
Ext.B5: Copy of statement of account.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
