Complainant is the managing partner of Karinkallathani Petroleum as per the partner hip deed . Complainant is having its account with opposite party for the past almost 5 years. The account maintained by the complainant is used for money transactions with HPCL. Initially the dealership was given to P. Ayishabi W/o K Ibrahim by HPCL and subsequently as per the partnership deed entered between P. Ayishabi and P.Saleena a fresh dealership agreement on 17/03/2010 was executed between HPCL and Ayishabi and P.Saleena. From the beginning of the account till the month of February 2010 opposite party charged around 8000 to 12000 rupees as transaction charge from the complainants account on 08/02/2010 opposite party has taken Rs. 72482.54 from the account of complainant as transaction charge. This was done without the consent of complainant or without giving notice. So on 10/02/2010 complainant issued a letter to opposite party by showing the irregularity committed by opposite party and asking to correct it. Opposite party told the complainant that they have written the grievance to the head office and immediately after the receipt of information from the head office the irregularity will be corrected. Meanwhile on 30/04/2010 opposite party had taken Rs. 67872.96 again from the account as transaction charge. Then on 17/05/2010 opposite party had taken again Rs. 79304.18 and on 03/06/2010 Rs. 86947.23 as transaction charges from the account of complainant. On 26/05/2010 complainant issued a lawyer notice to opposite party claiming the amounts which opposite party had taken from the account of the complainant . Then opposite party replied the letter and asked the complainant to furnish her account number to take suitable action. This itself will prove that the opposite party wants to prolong the matter without providing any information on the subject matter for their gain. Then the complainant filed a complaint before the RBI, Trivandrum which was referred to the office of Banking Ombudsman. Then opposite party responded by letter dated 23/07/2010. In that letter they raised their defense as the services provided by the bank in relation to the account are governed by current account terms and conditions and the bank is well with in its rights to make charges in relation to charges, however pursuant to and in accordance to the Reserve Bank of India’s, guidelines and the bank's commitment to its customers, if the bank effects such modification/amendment after giving a 30 days prior notice to the customers. If the bank opted to replay for the first letter the complainant would have then and there closed the account. But opposite party dragged and prolonged the matter only to extract money from the complainants account. This act of opposite party will come under deficiency in service and hence he filed this complaint before the Forum alleging deficiency of service.
Complainant prays to direct opposite party to pay Rs.306608.91, the amount taken as transaction charges by opposite party from the current account of the complainant. She also request to direct to pay Rs. 25000 as compensation for the inconvenience and loss caused to him along with cost of Rs. 5000.
Opposite party filed version. Opposite party denies the allegations and averments of the complainant except those which he specifically admitted. Opposite party admits the account of the complainant in their bank. Opposite party states that complainant is not a consumer under section 2(I) (d) (ii) of consumer protection Act since the complainant is a commercial establishment and the transaction is a commercial one . The complainant P. Saleena has no locus standi to file this complaint. The complaint before the Banking Ombudsman was filed one Mr. Mohammad Fervez on behalf of Karinkallathani Petroleum From the complaint itself it can be seen that M/s Karinkallathani Petroleum is an unregistered partnership firm. Un registered partnership firm has no legal entity and no legal right to file a complaint seeking the relief claimed in complaint. The complaint is barred by law and hit by section 69 of partnership Act. The complainant Saleena or Ayishabi has not informed this opposite party about the alleged fresh dealership agreement dated 17/03/2010 and the alleged partnership deed entered between Ayshabi and Saleena. So Mrs. Saleena who claimed herself to be as managing partner of the Karinkallathani Petroleum is totally stranger to opposite party. There is no privity of contract between the opposite party and Mrs. Saleena. So there is no consumer relationship between opposite party and Smt. Saleena.
Karinkallathani Petroleum has opened the alleged current account 021805000109 on 23/10/2006. During that period through out India ICICI Bank and Hindustan Petroleum chemical Ltd. Entered in to a tie up and all petrol pumps comes under H.P.C. L opened current account including the complainant for their business transactions. They opened the current account comes with in the category of “M2O” . As per terms and conditions of the said account complainant has to maintain a monthly average balance of Rs. 10000 otherwise the complainant is liable to pay Rs.1667 to the opposite parties towards non maintaince of monthly average balance. The said account provides the facility of unlimited for keeping cash deposit in the account. The complainant can keep how much amount as he wishes in the said account except fifty rupees count and the bank will not levy charges for the same. Opposite party further submit that the tie up between opposite party and Hindusthan Petroleum Chemical Ltd. Stopped on October 2009 thoughout India. Then opposite party decided to migrate the category of the current account kept by all petrol pump under the HPCL from “M2O” to 'RCA classic plus' through out India. On 01/11/09 opposite party bank has sent letters to all the petrol pumps customers including complainant to effect that the ICICI Bank is going to migrate the M2O category account opened by them in to RCA classic plus category. If the customers are disinterested and wish to close their account, approach their branch with in 30 days from the date of issue of the letter. It is also stated in the letter that if there is no response form the customers including the complainant, the ICICI bank shall migrate the said current account in to RCA classic plus. Opposite party has entrusted the letter to deliver the complainant through Aramex India Private Limited Courier service. They have sent the letter to the complainant through postal Service, since the pin code is non serviceable by Aramex. On request from the ICICI bank the Aramex India Private Limited has given a letter to that effect. There was no response from the complainant and the above said current account was migrated to RCA classic plus”category from January 2010 onwards. According to the schedule of the charges of the Classic Plus Category the complainant has to maintain a monthly average balance of Rs. 40,000, other wise, bank is bound to levy charges of Rs. 650 from the complainant for non maintaince of monthly average balance. Complainant is also liable to pay Rs. 5 for every Rs.1000 ( one thousand) If the cash deposit in the said account is more than Rs. 300000 ( Rupees three lakh) A part from that the complainant is also liable to pay other charges mentioned in the schedule of charges. The allegations of the complainant that without notice opposite party has taken Rs. 7248254 on 8/2/2010, Rs. 67572.96 on 30/4/2010 Rs. 79304.18 on 7/5/2010 etc as transaction charges as denied by opposite party. Opposite party admits the notice issued by the compliant on 26/5/2010 through lawyer. Opposite party submits that they sent a replay notice to the complainant's advocate stating that in order to take suitable action requested him to maintain the complainant's account number and write a letter. But neither complainant nor the advocate responded to the letter. Opposite party submit that on 1/11/2009 they sent a letter to the complainant with respect to the migration of complainant’s account from M2O to “RCA classic Plus' Opposite party has entrusted the letter to the courier service Aramex India Pvt. Ltd. to deliver the letter to complainant. Through proper and effective adjudication of the case Aramax India Ltd. is a necessary party to this case. So the complaint is bad for non joinder of necessary parties. He again submit that the complainant has not served the decision of the banking ombudsman is not correct. She suppressed all these things from the honorable Forum. Therefore it is prayed that the Forum may be pleased to dismiss the complaint with cost of opposite party.
Complainant filed chief affidavit along with documents as proof for his case. Ext A1 to A7 marked on the side of complainant. Opposite party filed counter affidavit Ext. B1 to B6 marked on behalf of opposite party. Ext. A1 is the dealership agreement HPCL with Ayishabi and Saleena. Ext. A2 is the partnership deed executed between Ayishabi and Saleena. Ext. A3 is the Account statement of complainant with opposite party from 1/12/2009 to 30/6/2010. Ext. A4 is the letter issued by the complainant to the opposite party on 10/2/2010. Ext. A5 is the lawyer notice issued by the counsel for the complainant to opposite party with postal receipt and acknowledgment card. Ext. A 6 is the replay notice sent by the opposite party in favour of complainant on 7/6/2010. Ext. A7 is the another letter sent by opposite party to the complainant on 23/7/2010. Documents marked on the side of opposite party is Ext. B1 to B6. Ext. B1 is the schedule of charges with respect to M2O category account. Ext.B2 is the copy of the letter dated 1/11/2009 issued by opposite party to the complainant. Ext.B3 is the letter issued by Aramex India Pvt. Limited to opposite party on 29/6/2011. Ext. B4 is the schedule charges with respect to RCA classic plus category account. Ext. B5 is the copy of the order of Banking Ombudsman. Ext. B6 is the account statement during the period from 12/2009 to 6/2010.
The main points for consideration are the following:-
Whether the complainant is a consumer under section 2(1)(d)(ii) of consumer
protection Act 1986.
(ii) Whether the complaint is bad for non jointer of necessary parties?
(iii) Whether opposite party is deficient in their service?
(iv) If so what is the relief and cost?
The main allegation of the complainant is that opposite party has taken a huge amount from his current account maintained in opposite party's bank as transaction charges on 8/2/2010, 30/4/2010,17/5/2010 and 3/6/2010 without notice to the complainant. She states that she is having its account with the opposite party for almost past 5 years. From the beginning of the account till the month of February 2010 the opposite party charged around 8000 to 12000 rupees as transaction charges from her account But on February 2010 on wards opposite party has taken on 8/2/2010 Rs. 72482.54, on 30/4/2010 Rs. 67872.96 and on 17/5/2010 opposite party has taken Rs. 79304.18 and 3/6/2010 Rs. 86947.23 as transaction charges from the account of complainant. She further states that on 10/2/2010, she issued a letter to opposite party showing the irregularity committed by the opposite party and asked to correct the same but opposite party did not care to correct it. They told the complainant that they have written the grievance to the head office and immediately after the receipt of the information from the Head office the irregularity will be corrected Mean while they again collected the excess charges from the account of complainant. Then on 26/5/2010 complainant issued a lawyer notice to opposite party claiming the amounts taken by opposite party from her account. In the reply of this letter on 6/7/2010 to the lawyer opposite party asked, to write a letter to them with complainant's account number to take suitable action. If the opposite party is aware about their lawful right to take transaction charges they could have replied in that manner. Complainant filed a complaint before RBI, Tvm, which was referred to the Banking Ombudsman. Then opposite party responded by letter dated 23/7/2010 by raising their defense as the charges were taken as per the terms and conditions of the current accounts. Opposite party content that complainant is not a consumer under section 2(1)(d)(ii) of the consumer protection Act, He also says that complainant is bad for non jointer of necessary parties. Opposite party further content that opposite party has taken the charges form the account of complainant as per the terms and conditions and by giving notice to the complainant.
Point (i)
The first contention raised by opposite party that complainant is not a consumer since the complainant firm is a commercial establishment and the transaction is a commercial transactions. Opposite party state that complainant P. Saleena has no locus stand to file this complaint. M/s Karinkallathani Petroleum is an unregistered partnership firm. Unregistered partnership firm has no legal entity and no legal right to file complaint seeking relief in the complainant. Opposite party says that according to section 69 of Indian Partnership Act 1932 an unregistered firm has no right o institute a suit. Ext A1 shows that complainant P Saleena and Smt. Ayishabi executed a fresh dealership agreement with HPCL on 17/3/2010. As per Ext.A2 the partnership deed produced by the complainant shows that Smt. Saleena the complainant and Smt. Ayishabi entered in to a partnership deed and as per this deed complainant is the managing partner of the Karinkallathani petroleum. Complainant is doing her business for her lively hood. As per section 2(1)(d)(ii) consumer means any person hires or avails any services for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails the service for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person ( but doesnot include a person who avails of such services for commercial purpose) . For the purpose of this clause “ commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his lively hood, by means of self employment. As per section 2(1)(m) of the CP Act a 'person' includes (i) firm registered or not, (ii) a Hindu undivided family (iii) a co-operative society (iv) every other associations of persons whether registered as per societies Registration Act 1860 or not registered. From the above discussions we have no hesitation that complainant is a consumer. She is a consumer under section 2(1)(d)(ii) and section 2(m) of consumer protection ACT.
Point (ii)
Another counter raised by the opposite party is that the complaint is bad for nonjointer of necessary parties. In the version opposite party states that he had sent notice to the complainant with respect to the migration of complainant's account from M2O category to RCA classic plus. Opposite party has entrusted this letter to Aramex India Pvt. Ltd. To deliver the customers including complainant. But complainant content that she has not received the notice or such any information from opposite party. So opposite party content that Aramex India Pvt. Ltd. is a necessary party to decide the question involved in the case. But complainant has no any dealings with this courier service Aramex India Ltd. According to the complaint filed by her opposite party is the only answerable party to the grievance alleged by the complainant. So Aramex India Pvt. Ltd. is not a necessary party for complainant.
Point (iii)
Opposite party further content that they had given notice to the complainant by informing the migration to RCA ( Roaming Current Account) classic plus from M2O (made to order) category on 1/11/2009. But opposite party has not received any reply from the complainant, hence they migrated her account to RCA classic plus as mentioned in the notice. Opposite party has no dispute regarding the transaction charges which he has taken from the account of complainant. He states that he has taken the charges as per the service provided by opposite party in relation to the account are governed by current Account terms and conditions . Opposite party has right to make charges in relation to charges how ever pursuant to and in accordance to the RBI's guide lines and opposite party's commitment to its customers. Bank effect such modification after giving 30 day prior notice to the customers. Here opposite party content that he had sent notice to every customers including the complainant. Opposite party state that he had entrusted the Aramex India Pvt. Ltd. to deliver the letter to the complainant. He says that Ext. B2 is the copy of the letter sent to the complainant. But complainant strongly oppose the contention of opposite party stating that opposite party has taken a huge amount from her account as transaction charge without her consent she says that she has not received any notice from opposite party by informing about the migration of her account to RCA Classic plus. Opposite party says that Ext.B2 is the copy of the letter issued by him to the complainant through Armex India Pvt. Ltd. There is no evidence to prove that Aramex India Ltd. delivered the letter to the complainant Ext. B2 shows that opposite party had sent the letter to Karinkallathani Petrolium Cochin. The letter couldn't be served to the complainant because KARinkallathani Petroleum is situates in Perinthalmanna not in Cochin. Complainant is a regular customer of opposite party from 2006 onwards. Opposite party can inform the complainant directly about the changing of account and get the consent. Instead of sending a notice to the complainant directly through ordinary or registered post opposite party entrusted a private courier agency, the Aramex India Pvt. Ltd. to deliver the notice to the complainant Opposite party admits that there is no delivery note to prove the delivery of the alleged letter since the Aramex Courier deliver this letter through postal service. From the above discussions it is clear that Ext B2 is not an acceptable document to believe that opposite party had sent notice to the complainant by informing the migration of her account to “RCA classic plus” from M2O category. On 10/2/2010 complainant issued letter to opposite party by awaring the irregularity of her account regarding the collection of transaction charges. On 26/5/2010 she issued a lawyer notice to them. For this letter opposite party replied and asked the complainant to produce the account number for necessary action. Then a complaint was filed before the RBI Tvm, since the complainant had not got a proper reply for her letters. After this complaint opposite party responded properly about the migration of the account to RCA classic plus and its details. Till the day opposite party extended the matter without giving a proper reply. During the period of these litigation also opposite party has collected excess transaction charges from the alleged account. From 8/2/2010 to 3/6/2010 opposite party had collected a total amount of Rs.306608.91 ( Three Lakhs Six Thousand, Six hundred and eight rupees and ninety one paise) as transaction charges from the account. Till January 2010 opposite party had collected around 8000 to 12000 only as transaction charges from the account. So the changing of the account to the RCA classic plus from M2O without the knowledge and consent of the complainant badly affected her and suffered a heavy financial loss. Any customer can't accept such account with their consent and knowledge. Hence we hold that opposite party changed the account from M2O to “RCA classic Plus” with out the consent of complainant. The collection of charges without the consent of an account holder amounts a gross deficiency of service on the part of a trader or a service provider. Hence we hold that opposite party is deficient in their service.
Point (iv)
As per Ext. A3 and Ext.B6 the account detailes of complainant's alleged account show that opposite party had collected Rs.72482.54 on 8/2/2010, Rs. 67872.96 on 30/4/2010 Rs. 79304.18 on 17/5/2010 and Rs. 86947.23 on 3/6/2010 as transaction charges from the account of the complainant. From the beginning of the account till the month of February 2010 opposite party changed only around 8000 to 12000 rupees as transaction charges as per the M2O category account. It is clear from Ext,B6 and Ext.A3. On 11/12/2009 opposite party collected Rs. 6059.88 and on 07/01/2010 he has collected 8774.59 only as transaction charges from the account Opposite party changed this account to RCA classic plus without the consent of the account holder and hence he is liable to refund the amount collected from the account of complainant after deducting the transaction charges as per M2O category. The calculation nomes of the transaction charges of opposite party is not produced both sides. Hence we direct opposite party to refund the amount of Rs. 306608.91 collected from the account of complainant as transaction charges as per the R.C.A classic plus after deducting the transaction charges entitled to opposite party from February 2010 to June 2010 as per M2O category.
In the result the complaint is allowed and opposite party is directed to return the amount to the complainant as of Rs. 306608 ( Three Lakh and Sixty Six Thousand and eight rupees only) which he has collected from the account of the complainant as transaction charges as per RCA classic plus after deducting the transaction charges entitled to opposite party from February 2010 to June 2010 as per M2O category along with cost of Rs. 2000 with in one month from the date of receipt of copy of this order.
Dated this 29th day of September , 2012.
Sd/-
E. AYISHAKUTTY, MEMBER, (In-Charge of President)
Sd/-
MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nill
Documents marked on the side of the complainant : Ext.A1to A7
Ext.A1 : Dealership agreement with Hindusthan Petroleum Corparation Limited between complainant Saleena and Smt. Ayishabi, dated,17/03/2010
Ext.A2 : Partnership deed between Smt. Ayshabi and P. Saleena, the complainant, dated,08/03/2010
Ext A3 : Account statement , date,01/12/2009 to 30/06/2010.
Ext A4 : A letter issued by complainant to opposite party, dated, 10/02/2010
Ext A5 : Lawyer notice issued by the complainant to opposite party dated,26/05/2010
Ext A6 : Reply to the lawyer notice issued opposite party to the advocate of complainant dated,07/06/2010
Ext A7 : A letter to Mr. Muhammed Parveze the husband of complainant, dated, 23/07/2010
Witness examined on the side of the opposite party : Nill
Documents marked on the side of the opposite party : Ext. B1 to B 6
Ext.B1 : Schedule of charges
Ext.B2 : Notice issued by opposite party to the complainant on 01/11/2009.
Ext.B3 : A letter issued to opposite party by Aremex Courier Service dated,28/06/2011 Ext.B4 : Service directory of opposite party.
Ext.B5 : A letter from the office of the Banking Ombudsman to ICICI Bank Limited TVM.
Ext.B6 : Account statement of complainant maintained by opposite party from 01/12/2009 to 30/06/2010
Sd/-
E. AYISHAKUTTY, MEMBER, (In-Charge of President)
Sd/-
MOHAMMED MUSTHAFA KOOTHRADAN,MEMBER
