cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2012
Filed on : 02-01-2012
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 1/2012
Between
Blessy Joseph, : Complainant
D/o. P.C Joseph, (By authorized representative)
Poomalayil house, Chirakkakam,
Varappuzha -P.O., Pin-683 517.
And
The Manager, : Opposite party
Federal Bank Ltd., (By Adv. Mohan Jacob George,
Varappuzha Branch. CC 67/432, Vadakkedathu
Road, Ayyappankavu,
Kochi-18)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant along with her parents and sister residing in the building No. 286/III (Old No. 896/VII situated in Chirackakam kara, Varapuzha Villagae, Paravur Taluk. They obtained a ration card and election identity cards in the above address. Their names have been included in the voters list. The complainant’s mother is holding an account with the opposite party. The complainant’s father is an account holder of SBT Varapuzha Branch. While so the complainant got admission to B.Sc. nursing course under merit category in Padmachandra College of Nursing Kurnal, Andrapradesh affiliated to NTR University. The complainant and her father approached the opposite party to avail an educational loan to the tune of Rs. 2.5 lakhs. At the request of the opposite party the complainant submitted the required documents. The processing of the loan has been unduly delayed for no reasons. In the meantime the complainant’s father managed to remit the 1st year’s fees to the tune of Rs. 25,000/-. The total fees at the college was Rs. 3,70,000/-. Since the Rural Health Care Society granted a scholarship the complainant has to remit only Rs. 2,70,000/- towards fees. On 29-09-2011 the opposite party informed their inability to grand the loan stating that the complainant is not residing within the service area of the opposite party. The complainant came to know that the opposite party is the Bank who is to grand education loan in the ward in which the complainant is residing. Thus the complainant is before us seeking direction against the opposite party to disburse the educational loan and to pay a compensation of Rs. 1,60,000 for the inconveniences and mental agony suffered by the complainant. This complaint hence.
2. The version of the opposite party is as follows:
The complainant is not a consumer within the ambit of the Consumer Protection Act. The dispute raised by the complainant is outside the purview of the Consumer Protection Act. The Federal Bank Ltd., Varapuzha Branch is not a party to the complaint. The opposite party is only an employee of the Bank The present complaint is barred by principles of res-judicata since the complainant has filed CC No. 502/2011 in this Forum. The documents go to show that the complainant is a resident of Ward No. III in Varapuzha Grama Panchayath SBT Varapuzha Branch is the Bank which is to give the loan application to the students who are residents of Ward No. VII and the Bank has rejected the loan application. The opposite party in his capacity as a manager can only recommend the grant of loan and the loan is sanctioned after considering the documents and recommendation of the manager by the Zonal office of the Bank. As per the State Level Banker’s Committee guidelines the Banks are to follow “Service area approach” while sanctioning educational loan. The request for granting educational loan is submitted with incomplete, misleading documents and confusing. The opposite party is not liable to sanction the loan or to pay the amount sought for in the complaint. The opposite party is not liable to sanction the loan or to pay the amount sought for in the complaint. The complainant is not entitled to get any of the reliefs as claimed for. The complaint is devoid of any merit and is liable to be dismissed.
3. The authorized representative of the complainant was examined as PW1, Exts. A1 to A12 were marked on the side of the complainant. No oral evidence was adduced by the opposite party. Exts. B1 to B4 were marked. Heard the authorized representative of the complainant and the learned counsel for the opposite party.
4. The points that came up for consideration are as follows:
i. Whether the complainant is a consumer?
ii. Whether the complaint is barred by principles of res-
judicata ?
iii. Whether the complainant is entitled to get the educational
loan disbursed?
iv. Whether the opposite party is liable to pay a compensation
of Rs. 1,60,000/- to the complainant. ?
5. Point No. i. At the outset the opposite party filed I.A. No. 223/2012 to hear the maintainability of this complaint. The order in the said I.A. was kept in abeyance to be considered along with this complaint. According to the opposite party the complainant is not a consumer and the definition of ‘complainant’, complaint ‘consumer dispute’ and ‘Service’ as defined in Section 2(1) of the Act do not cover the claim arising in the present dispute and the controversy involved is not a consumer dispute.
6. Ext. A8 is a letter dated 26-09-2011 issued by the opposite party to the complainant which reads as follows:
“Dear Sir,
Reg: Your Educational Loan application
With respect to your request for Educational Loan submitted to this branch, we have informed you that this request cannot be considered through this branch and we have informed you of the reasons also.
For your information, please note that Bank branches belonging to the State of Kerala are following “Service Area Approach’, as per State Level Bankers Committee guidelines while sanctioning fresh educational loans under ‘Model Educational Loan Scheme’ formulated by Indian Banks Association. Under this scheme Banks have to consider educational loan applications of students who are residents of the ‘Service Area’ which is specifically allotted to the concerned Bank branches. Such an approach is adopted by SLBC taking into account of the practical difficulties faced by Banks for future follow up & tracking of educational loans, wherein repayment starts only after a period of five to six years from the date of disbursal of the loan.
Hence we are unable to consider your request favorably.
Yours faithfully,
Sd/-
Jose Thekkinedath,
Senior Manager,
Federal Bank, Varapuzha.”
7. Ext. A8 goes to show that the complainant had submitted an educational loan application before the opposite party. Admittedly the complainant has not paid any consideration in cash in the said transaction which was not called for. It is not in dispute that the complainant had to take efforts to accumulate documents to be submitted along with the loan application. The efforts taken by the complainant to accumulate the documents can be considered as the consideration towards the service availed from the opposite party without which they would not be able to follow up the case in hand. The principles of ‘res ipsa loquitur’ applies here.
8. In Lucknow Development Authority Vs. M.K.Gupta III (1993) CPJ I (SC) the Hon’ble Supreme Court held that “the word ‘potential’ contained in the definition of service in clause 2 (o) of the Consumer Protection Act has got wide meaning. The service which is not only extended to actual uses but those who are capable of using it also are covered in the definition. The clause is thus very vide and extends to any or all actual or potential uses”. In the light of the above we have no hesitation to hold that the complainant is a potential consumer of the opposite party as observed by the Superior Most Authority of the land.
8. Point No. ii. The opposite party contended that PW1 the power of attorney of the complainant himself approached this Forum by filing CC No. 502/2011 and later he had withdrawn the same after filing an application to file a fresh petition. The opposite party maintains that this complaint is not maintainable on the ground of principles of res-judicata.
9. Indisputably PW1 father of the complainant filed CC No. 502/2011 and it was withdrawn with liberty to file a fresh complaint. The principles of res-judicata is governed by S. 11 of Civil Procedure Code which reads as under
“ No Count shall try any suit or issue in which been directly and substantially in issue in a former suit between the same litigating under the same parties or between parties under whom they or any of them claim, title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
10. In the instant case the principles of res-judicata is not applicable for the simple reason that the earlier complaint has not been heard and decided by this Forum especially when as per Section II of CPC envisages as read above.
11.Point No. iii. According to the complainant she is residing along with her family in Ward No. III of Varapuzha Grama Panchayath the complainant stated that in spite of submission of the required documents the opposite party failed to disburse the educational loan to the tune of Rs. 2,50,000/- which amounts to deficiency in service on the part of the opposite party.
12. Right from the beginning the opposite party took a stand that the complaint is not residing in the service area of the opposite party. According to the opposite party the complainant is residing in Ward No. VII of Varapuzha Grama Panchayath and SBT Varapuzha Branch is the Bank which is to give the loan to the eligible students who are residents of Ward No. VII.
13. We have carefully gone through the documents submitted by the complainant in this Forum primarily to ascertain the fact that which ward the complainant is residing. They are as follows:
SlNo. | Date | Exbt. | Nature of the document | Building No. |
1 | 25-07-2011 | A2 | Residence certificate issued by Secretary, Varapuzha Grama Panchat | VII/896 (XIII/286)new number |
2 | 19-08-2011 | A4 | Certificate issued by secretary, Varapuzha Grama Panchayath | VII/896(old) (III/286 new number) |
3. | 26-07-2011 | A5/B3 | Village office, Varapuzha | VII/896 |
4. | 16-06-2011 | A10 | Copy of ration card | III/286 |
5. | 05-07-2001 | A11 | Copy of identity card issued by Election Commission of India | 896(3/286) |
6. | 19-08-2011 | A12 | Copy of certificate issued by Thahsildar, N. Paravur | 7/896 (New House No.3/286) |
7. | 14-05-2011 | B1 | Copy of rent deed | VII/286 |
14. During evidence PW1 admitted that he got corrected his house number in Ext. A10 ration card on 20-08-2011. Ext. A4, A10 and A12 go to show that the complainant is residing in III/286 of Varapuzha Grama Panchayath. The new number does not find a place in the documents submitted before the opposite party. The other documents would show that the complainant is residing in VII/896 of Varapuzha Grama Panchayath. So naturally it is evident that the old number that is VII/796 is of new number III/286 which for no reason the authorities has not taken care of which alone could have avoided this unnecessary litigation. So we can not find any deficiency in service on the part of the opposite party since one who is dealing with the above documents should be in confusion relating to matters they go through every day. The new ward No. III and VII of Varapuzha Grama Panchyath are within the service area of the opposite party and SBT Varapuzha Branch respectively.
15. During the proceedings in this Forum the complainant produced a letter issued by the Reserve Bank of India to all scheduled Commercial Banks dated 09-11-2012 which reads as follows:
Service Area Approach-Educational Loan Scheme
We have been receiving a number of complaints where students have been refused educational loans as the residence of the borrower does not fall under the bank’s service area. In this connection, we advise that Service area norms are to be followed only in the case of Governments sponsored schemes as advised in our circular RPCD.LBS (SAA)BC.No.62/08.01.00/2004-05 dated December 8,2004 and are not applicable to sanction of education loans.
2. Hence, banks are advised not to reject any educational loan application for reasons that the residence of the borrower does not fall under the bank’s service area.
3. You are, therefore required to issue suitable instructions to your branches/controlling offices for meticulous and strict compliance in this regard.”
16. Moreover the complainant relied on a decision rendered by the Hon’ble High Court of Kerala in Revathy K and 11 others Vs. State Bankof India and 11 others WP (C) No. 21905 of 2012 K decided on 20-11-2012 which is reproduced as under.
“The petitioners herein are students who have secured admission for various recognized courses like B.Sc Nursing and Engineering. The complaint is that the Bank Managers of the respective Banks declined educational loans and have not even issued proforma for enabling the petitioners to submit the application.
2. It is submitted by the learned counsel for the petitioners that in the light of the revised circular issued by the Reserve Bank of India, as the alleged embargo as far as the petitioners have lost its relevance, the petitioners are eligible for submit the application
In the light of the above, this writ petition is disposed of with a direction to the respective respondents representing the Banks to issue proforma for enabling the petitioners to submit the applications on production of a certified copy of this judgment. On submission of the applications in the proforma along with required details, the same will be processed and final decision will be taken and informed to the petitioners within a period of three weeks thereafter.
This writ petition is disposed of as above”.
17. The above decision of the Hon’ble High Court cristalises the obligation on the part of the opposite party to process the educational loan application.
18. Point No. iv. The deficiency in service as averred by the complainant is not sustainable since the problem have been solved squarely thereafter. No award of compensation and costs of the proceedings stand called for.
19. Before parting with this order we are to take note the efforts taken by Mr. Mohan Jacob George the learned counsel for the opposite party to help this Forum to come to a compatible decision. The appreciation need be recorded.
20. In the result, we partly allow the complaint and direct that the opposite party shall abide by the parameters elucidated by the Hon’ble High Court of Kerala in the above referred case. The opposite party shall process the educational loan application of the complainant on receipt of the education loan application and required documents from the complainant. The complainant is directed to submit the same within 15 days from the date of receipt of a copy of this order. The opposite party shall comply with the directions within 30 days from the date of application from the complainant peremptorily.
Pronounced in the open Forum on this the 31st day of December 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of special power of attorney
A2 : Copy of affidavit dt. 25-07-2011
A3 : Copy of statement
A4 : Affidavit dt. 19-08-2011
A5 : Affidavit dt. 26/07/2004
A6 : Copy of letter dt. 07-12-2011
A7 : Copy of bye-laws
A8 : Copy of letter dt. 26-09-2011
A9 : Copy of letter dt. 17-11-2011
A10 : Copy of ration card
A11 : Copy of I.D. card
A12 : Copy of certificate dt. 19-08-2011
Opposite party’s Exhibits :
Ext. B1 : Copy of Agreement
B2 : Copy of complaint filed
before CDRF, Ekm.
B3 : Copy of affidavit
dt. 26/07/2011
Depositions:
PW1 : P.C. Joseph
