DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 13th day of January 2017
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 05/06/2015
: Sri.V.P.Anantha Narayanan, Member
(C.C.No.64/2015)
Abraham.T.V.
S/o.Varghese,
249 A, Railway Quarters,
Kallekulangara Post,
Palakkad - Complainant
(By Adv.K.K.Sudheer)
V/s
Manager
HDFC Bank,
VIII/246,
Chandranagar Branch,
Palakkad - Opposite party
(By Adv.K.A.Kailas)
O R D E R
By Shri. V.P.Anantha Narayanan, Member
Brief facts of complaint.
The complainant is staying in Railway Quarters Kallekulagara. To get compensation for financial and mental loss he has filed this complaint. The complainant is an account holder and customer of the opposite party bank. From the opposite party bank a loan was taken by the complainant (loan No.30282065) The loan amount was repaid in EMI. The salary account of the complainant is in Vijaya Bank of Olavakkode Branch. From this account EMI was being paid. Accordingly in each month the complainant’s cheque for EMI amount was sent from OP bank to Vijaya Bank where the cheque got collected. For this purpose OP bank received from the complainant EMI cheques duly signed by him. On 8/1/2015 opposite party bank sent an EMI cheque of the complainant for Rs.5,891/- to Vijaya Bank for collection. But Vijaya Bank sent back the cheque mentioning the reason “account description does not tally”. Since the cheque for the EMI amount was returned OP bank by way of penalty debited Rs.618/-to the complainant’s account as per the cheque return memo. According to the complainant to write ECS code is the liability of the OP bank; but for default which occured on the part of OP bank the above amount was recovered from the complainant. The OP bank failed in this matter. As per the RBI Act for the return of the cheque without writing ECS code collection charges or fine should not be recovered. Then the complainant sent a notice regarding this to Vijaya Bank and opposite party bank. Both parties gave him replies finding fault with the other party. In the reply from Vijaya Bank it is mentioned that as per RBI instructions due to insufficiency of funds if a cheque is returned then only ECS charges can be recovered. Accordingly OP bank has violated the instructions and this can be understood. Also the courtesy to be shown to a customer was not given to the complainant. Complainant’s cheque was not dishonoured due to the above mentioned reason; still OP bank made the complainant suffer mentally and financially. Although this matter was informed to the OP bank directly and through notice many times, no action was taken by them. Hence, on the above matter complaint was given to Banking Ombudsman (RBI) by the complainant. On receiving the complaint, OP immediately refunded Rs.618/- to the complainant’s account. Then the complainant informed the ombudsman of having received the amount but no further steps were taken by them. Hence in order to get compensation for the loss suffered as a customer the complainant approached the honourable Forum. Owing to the above the complainant happened to suffer losses mentally and financially in Vijaya bank the complainant suffered untold mental agony. In the presence of other officers the complainant suffered bad name for which financial loss is very great.
Hence it is prayed to the Hon'ble Forum to order for a compensation of Rs.2 lakhs to be paid by OP bank for the mental and financial loss undergone by the complainant and also to order for payment of Rs.5,000/- to the complainant towards litigation expenses incurred by him.
The complaint was admitted and notice was issued to op bank. In their version the Manager of OP bank contends the following:
The above complaint is not maintainable either in law or on facts and the same is liable to be dismissed. This opposite party denies all the averments in the complaint except those specifically admitted here under.
At the outset it is stated that the complainant had preferred complaint before the Banking Ombudsman for the alleged cause of action as mentioned in the complaint. However the complaint was subsequently closed on account of the fact that opposite party had refunded the bounce charges to the complainant as a service gesture. Hence, there is no cause of action prevailing at the time of filing this complaint. This Forum lacks jurisdiction to entertain the above complaint and the same is liable to be dismissed. The above complaint is liable to be dismissed for non joinder of necessary of parties. The EMI cheque issued by Vijaya Bank was dishonoured by the same bank where the complainant is maintaining his account. It is the duty on the part of Vijaya bank to duly verify the ECS code. The subsequent cheques were verified at their end and the same was issued to the opposite party. Hence the cheque bounced due to the fault of Vijaya bank. Hence Vijaya Bank is also a necessary party in the above complaint. Since Vijaya bank is not included in the opposite party array the above complaint is liable to be dismissed for non joinder of necessary party. The complainant is an account holder and has availed a loan from the opposite party vide LAN No.30282065. It is true that the complainant has agreed to discharge the liability by way of payment by cheques. Petitioner has issued post dated cheques to the opposite party to discharge the liability. The complainant has promised that he will maintain sufficient amount in his account in Vijaya Bank Olavakkode to honour the cheques issued by him. One cheque issued by the petitioner dated 8/1/2015 for Rs.5,891/- towards partial discharge of the loan liability stands dishonoured for the reason “account description does not tally”. Since the cheque issued by the petitioner was dishonoured as per the norms and the banking rules, the complainant is liable to pay the cheque bounce charges and therefore Rs.618/- is charged from him and the same is debited to his loan account, which is as per the norms of the loan agreement. It is not correct to state that it is the duty of the opposite party bank to maintain the ECS code. All the details in the EMI cheques were filled and verified by Vijaya Bank. The further averments in para 2 of the petition that the complainant was burdened with Rs.618/- for the default of the opposite party is not correct and therefore denied by the opposite party. The alleged incorporation of details of ECS code is not at all the duty or service of the opposite party bank and the opposite party bank is not charging any amount for the same service. In that perspective there is no deficiency of service on the part of the opposite party. Unless and until the opposite party who charged for any of the service provided by the bank caused any deficiency of service the opposite party will not come under the definition of consumer as provided under the Act. The further averments mentioned in the petition that as per RBI rules the amount can be charged for not mentioning ECS code is not correct and therefore denied by the opposite party. Another averment mentioned in the complaint that ECS charges can be levied only if the cheque is bounced for the reason “funds insufficient” is not correct. ECS charges can be charged when the cheque is bounced. The further averments in the petition that when the complainant enquired the matter with Vijaya bank and the opposite party bank, they had found fault with each other is not correct and denied by the opposite party. Similarly that Vijaya bank had given a reply that ECS charges can be charged only if the cheque is bounced for the reason of insufficiency of funds is not correct. The further averments in the petition that the opposite party had not complied with the directions of the RBI is not correct. Another averment in the petition that since the cheque issued by the petitioner is not bounced for the reasons of insufficiency of funds the opposite party cannot charge ECS charges is not correct. The opposite party had not harassed the petitioner mentally or financially. Averment to that effect in the complaint is not correct. That the petitioner had complained the same before the opposite party and the opposite party had not taken any steps is also not correct. The opposite party had issued letter dated 12/2/2015 stating all the facts and also stated that it is the responsibility of the Vijaya bank to maintain ECS details in the cheque and verify the same. The opposite party had requested all the documents relating to the cheque bounce, but Vijaya Bank did not reply to the said letter issued to them. It is true that petitioner had complained to the Banking Ombudsman and there after the opposite party bank refunded Rs.618/- to the complainant towards “Service Gesture” and considering the payment background of the customer regarding repayment of loan amount. According to opposite party, the complainant did not sustain any loss due to deficiency of service by the act of the opposite party and hence the complaint is not maintainable before the Consumer Forum. The alleged dispute does not fall within the jurisdiction of the Forum and for that reason petition is liable to be dismissed. The further averments mentioned in the complaint that due to the above act the petitioner had suffered huge loss mentally and financially is not correct. The complainant had not sustained any loss because of the act of the opposite party. The further averments in the complaint that the petitioner had sustained big loss in front of Vijaya Bank is not correct and hence denied by the opposite party. The further claim of the petitioner that he is entitled for Rs.2 lakhs towards the loss suffered by him is not correct and according to the opposite party, he is not at all entitled to any amount from the opposite party. The further averments mentioned in the complaint that opposite party had no manners towards the petitioner is also denied by the opposite party. According to the opposite party the complainant had not sustained any mental or financial loss due to the act or deficiency of service of the opposite party. This opposite party does not come within the definition of a consumer for the above alleged incident as no amount is charged for the alleged loss. The petitioner is also not entitled for Rs.5,000/- towards legal expenses or compensation. There is no cause of action for preferring the above complaint as claimed by the petitioner.
Hence it is prayed that the Hon’ble Forum may accept the contentions of the opposite party and the complaint may be dismissed with cost.
Evidence of the complainant consists of his chief affidavit and Exts.A1 to Ext.A8 documents. Ext.B1 to B10 were marked on the side of opposite party. Ext.B10 was marked during cross examination of the complainant as PW1.
The following issues arise in this case
1.Whether there is any deficiency in service and/or unfair trade practice from the side of opposite party ?
2.If so, what is the relief?
Issues 1 & 2
The complainant has availed a loan from HDFC bank, Chandranagar branch and the loan is repayable in EMIs. He maintains a deposit account with Vijaya bank Olavakkode branch in which the complainant’s salary is credited. EMI cheques are drawn on Vijaya bank, Chandranagar branch in favour of HDFC bank, Chandranagar branch. It is seen that one cheque dated 8/1/2015 issued by the complainant for Rs.5,891/- towards partial discharge of his loan liability was returned unpaid by Vijaya Bank mentioning the reason “account description does not tally”. Although the OP bank sent letters to Vijaya Bank as per Ext.B4 & Ext.A4 to verify the ECS mandate and intimate the reason for return of ECS claim to the complainant no reply thereto was seen given by Vijaya Bank to opposite party bank. In his deposition while being crossed as PW1 on 6/8/16 the complainant mentioned that except the cheque which comes under the dispute all the cheques given from January 2015 were collected. As per Ext.B10 it is seen that in mandate form particulars were verified by Vijaya Bank with tick mark put. On the basis of this mandate except the disputed cheque all other cheques were collected. Regarding this OP bank has sent a letter to Vijaya Bank as per Ext.B4. In his deposition while being crossed as DW1 on 6/10/16 OP bank Manager has mentioned that it was first EMI that was returned by Vijaya Bank with reason “account description does not tally”. It is also seen that the ECS mandate form produced is completely filled up including MICR code which was duly verified by Vijaya bank vide Exts.B10 and A2.
Further as per the contentions of the opposite party bank the complainant has not taken any steps to include Vijaya Bank Olavakkode Branch also in the array of opposite parties. Opposite party bank also contends that the complainant will not come in the definition of “consumer” under section 2(d) of the Consumer Protection Act 1986 because the opposite party has not charged any consideration from the complainant for any of the services rendered by it. Moreover opposite party bank had refunded the cheque bounce charges to the complainant before the complainant filed this complaint to the Hon’ble Forum.
Hence it is observed that the complainant did not take any steps to include Vijaya bank Olavakkode branch in the array of opposite parties. Therefore, we view that there has arisen in this case non joinder of necessary parties. It is also noted that the complainant will not come under the definition of consumer under the Consumer Protection Act 1986, under Section 2(d) because the complainant was not charged any consideration for any of the services provided by the opposite party bank and hence no deficiency of service is seen having arisen on the part of opposite party bank. It is also seen that complaint preferred by the complainant before the Banking Ombudsman was subsequently closed because the opposite party bank had refunded the bounce charges to the complainant before filing this complaint to the Forum. Hence there is no deficiency of service on the part of opposite party.
In the light of the above the complaint is dismissed.
Pronounced in the open court on this the 13th day of January 2017.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Letter dated 13/1/2015 issued by complainant to Manager, Vijaya Bank.
Ext.A2 - Reply letter dated 5/2/15 sent to complainant by Vijaya bank
Ext.A3 – Letter dated 12/2/15 sent to complainant by opposite party bank
Ext.A4 - Letter dated 11/2/15 sent to complainant by opposite party bank
Ext.A5 – Complaint letter dated 2/3/15 sent to Banking Ombudsman by the
complainant
Ext.A6 - Receipt dated 13/3/15 for accepting the complaint of the complainant.
Ext.A7 – Letter dated 18/3/15 showing refund of amount issued by opposite party to
complainant .
Ext.A8 – Order dated 26/3/15 passed by Banking Ombudsman.
Witness examined on the side of complainant
PW1 – Abraham.T.V
Exhibits marked on the side of Opposite parties
Ext.B1 – Notarized copy of the loan agreement entered into between the complainant
and the opposite party dated 31/10/2014.
Ext.B2 – Statement of account of loan No.30282065
Ext.B3 – Photocopy of the mandate form of electronic clearing service (debit clearing)
signed by the complainant dated 4/1/2015
Ext.B4 – Photocopy of letter issued by the opposite party to Vijaya Bank Olavakkode
branch, dated 30/1/15
Ext.B5 – Photocopy of letter issued by the Vijaya bank Olavakkode branch to the
complainant dated 5/2/15
Ext.B6 –Photocopy of letter issued by the opposite party to complainant dated 9/2/15
Ext.B7 – Photocopy of letter issued by opposite party to complainant dated 18/3/15
Ext.B8 – Photocopy of letter issued by opposite party to the Hon’ble banking
Ombudsman dated 18/3/15
Ext.B9 – Photocopy of mail communication to the Sr.Manager, Vijaya Bank Olavakkode
Ext.B10 –Photocopy of Mandate Form electronic clearing service (Debit Clearing)
Witness examined on the side of opposite parties
DW1 – Dileepkumar.J.S
Cost
No cost allowed.
