JUDGEMENT

The present complaint has been filed by the complainant before this Commission under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service and negligence on the part of the opposite parties and has prayed for the following reliefs:

1. Directing the opposite parties to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) to the complainant towards compensation for mental agony, physical hardship and monetary loss suffered by him due to the negligence, unfair trade practice and deficiency in service on the part of the opposite parties.
2. Directing the opposite parties to pay a sum of Rs.10,000/- towards costs.

The case of the complainant is as follows:

2.       The complainant used to take personal loans from the first opposite party and EMIs were duly paid by the complainant for the respective loans.  Though he had been paying the respective dues for the pending loan, the complainant used to get calls from the staff of the second opposite party from the month of May 2014 to pay the due amount for a loan availed for Rs.92,000/- which was never availed by the complainant at any point of time from the opposite parties.  He immediately informed the first opposite party about the calls being received for the loan which was not availed, for which the first opposite party staff assured that he will not receive such call in future. For his shock and surprise, he used to get SMS from the second opposite party to pay the EMI of Rs.4262/- and in addition to that he receives so many obscene calls by recovery agents of the second opposite party where they used abusive language and also life threatening calls.  Again the complainant has visited the first opposite party and expressed his concern about the calls being received from Bajaj Finance and this time also, the first opposite party convinced the complainant and assured that he will not receive such call in the future.

3.       Whileso, when the complainant applied for a business loan in the Nationalised Bank, the concerned bank refused to provide loan to the complainant by stating that he has remarks in the CIBIL report and a long loan was pending unpaid in CIBIL status report.  The complainant has sent an E-mail dated 29.10.2015 to the second opposite party by stating that he is getting SMS to pay an EMI of Rs.4262/- for the loan which he had never availed.  For the said email, the second opposite party has replied through email on 31.10.2015 stating that they observed from the records that the complainant has availed a loan vide account no.4580PL00014385 and the EMI amount has not cleared due to insufficient funds and there are payment return, installement overdue for Rs.38,358/- and in addition to that overdue charges of Rs.27,490/- levied on his account. Also they had attached a statement of account for his reference.   On receipt of the above email and statement of accounts, which had never been availed by the complainant, he had undergonet severe mental agony and pressure. He can't able to concentrate on his day to day works and due to which he suffered a lot physically, mentally and economically.   Again, he approached the first opposite party and informed the same. On verification, the second opposite party found that, another person by named Ramesh has availed the loan account No.4580PL00014385 for an amount of Rs.92,000/- and informed by mistake the same was accounted by the  complainant's identity. 

4.       After learnt about the mistake made by both opposite parties, the complainant has immediately sent a mail to the Grievance Redressal Team of the second opposite party through email dated 04.11.2015 complaining about the identity theft in the system.  On the same day, the Grievance Redressal Team of the second opposite party had acknowledged the Email and issued a service request no.SRN04156829.   Subsequently, on 07.11.2015, the Grievance Redressal Team of the second opposite party after investigation has accepted the error and request its sincere apology for the inconvenience that has been caused to the complainant and also assured to remove the wrong loan from his name and sent the details to the CIBIL within 4-5 working days the CIBIL entry will be removed.

5.       Nearly, after one month, on 05.12.2015, the complainant has managed to get this CIBIL report and on seeing the same, the complainant has undergone severe mental agony as the CIBIL report showing the forged loan in his name in his CIBIL report and due to which his CIBIL score was reduced drastically.  Due to the negligence of the opposite parties, they created an encumbrance in the CIBIL report of the complainant which has defamed the credit character of the complainant. The opposite parties indulged in the unfair trade practice and due to which the complainant has suffered a lot.  Hence this complaint.

The case of the opposite parties 1 & 2 as follows

6.       The complaint is defective, the reason being that the compliant has made Bajaj Finserv as opposite party, there is no company in existence by name Bajaj Finserv.  The contents of the complaint which are specifically admitted by the by the opposite party are only and rest all are denied.  The complainant had availed a loan from the opposite parties vide loan agreement no.4580PL00030500 dated 30.08.2013 for an amount of Rs.46,000/- and the complainant has been regular in payment of the installments.  The e-mail ID of the defaulter, hereinafter known as Mr.R.Ramesh having loan agreement no.4580PL00014385 was wrongly mapped with the complainant who is also known as Mr.R.Ramesh, having loan agreement No.4580PL00030500 in the system and due to inadvertent oversight, the collection follow up emails were sent to the complainant to pay the outstanding dues of Rs.38,358 + Rs.27490/- towards some additional charges.  After the error was realized, the same has been corrected in the records of the opposite parties and the follow up emails have been stopped from the opposite parties to the complainant. 

7.       As per Clause 32 of terms and conditions signed by the complainant, all claims will be referred to Sole Arbitrator appointed by the opposite party and arbitration proceedings will be conducted at Pune. The courts are debarred from entertaining such complaints (In clause 32 of the terms and conditions it is mentioned that we can institute the case in the courts in the particular or any jurisdiction).  The allegation of defect/default deficiency in service are wholly misconceived, groundless, false, untenable in law besides being extraneous and irrelevant having regard to the facts and circumstances of the matter under reference.  The opposite parties are not liable to pay any compensation in the complaint.  The complaint is not maintainable and is liable to be dismissed.

8.       On the complainant side, the  complainant himself was examined as CW1   and marked Exhibits  C1 to C10 and one another witness Tmt.Jayasree, Manager, Canara Bank was examined as CW.2 and Ex.C11 marked.  No oral or documentary evidence adduced on the side of the opposite parties.

9.       On the above pleadings,  the following  points  are to be answered. 

1. Whether the complainant is a Consumer?
2. Whether the complaint is hit by Arbitration clause in the agreement between the complaint and the opposite parties?
3. Whether there is any attributable deficiency in service by the opposite parties?
4. To what other relief the complainant is entitled?

POINT NO.1

10.     The complainant has pleaded that he has availed the financial assistance as personal loan, two, three occasions and the last loan amount of Rs.46,000/- was pending vide loan account no. 4580PL00030500 and the same was admitted by the opposite parties in their reply version.  Therefore, the complainant is a consumer, who has availed the service from the opposite parties and accordingly, this point is answered in favour of the complainant.

POINT No.2:

11.     It is well settled proposition by several judgments that though there is a clause for arbitration in the agreement between the parties, the consumer can approach the Consumer Redressal Commission for the relief under Consumer Protection Act and there is no bar for the same.    The ruling seen in M/s.Emaar Mgf Land Limited Vs. Aftab Singh reported in 2019.CPJ.5.SC will support the case of the complainant and therefore, this complaint is not barred by or hit by Arbitration clause mentioned in the terms and conditions of the agreement between the complainant and the opposite parties.  Therefore, this point is negatived as against the opposite parties.

POINT No.3:

12.     Further, the case of the complainant is that to his shock and surprise, he received calls from the staff of the second opposite party from the month of May 2014 to pay the due amount for a loan availed for Rs.92,000/-, which he never availed from the opposite parties.  While redressing the same with the opposite party no.1 by the complainant, they convinced the complainant and assured that he will not receive such call in the future regarding the said loan for a sum of Rs.92,000/-.  But, even then, he received the SMS from the second opposite party to pay the EMI of Rs.4262/- towards the unavailed loan for a sum of Rs.92,000/- by the complainant.  In addition to that, he had also received calls from the opposite parties with abusive language and life threatening.  This time also, the complainant visited the first opposite party and expressed his concern to stop such calls and threat.  The opposite parties again promised that they will rectify the problems and assured no such incidents will happen in future.  The opposite parties in their reply version, nowhere denied the contention of the complainant regarding disturbing and torturing through phone calls and SMS for payment of due amount for the unavailed loan.

13.     The complainant, who is having an account in Canara Bank, Puducherry,  applied to obtain loan from the Bank under Pradan Mantri Awas Yojana Financial Assistance scheme but they have denied to grant the loan in favour of the complainant for the reason that the complainant's CIBIL score is not upto the satisfactory line to grant loan in favour of him.  The complainant was put into great mental agony and he has suffered a lot, aggrieved by the attitudes of the opposite parties.  By narrating all these facts, he has sent email dated 29.10.2015 to the opposite parties.  In reply to the same, the second opposite party has sent a mail to the complainant stating that the complainant had availed a loan vide loan account No.4580PL00014385 and EMI amount was not cleared due to insufficient funds in his account and there is overdue for Rs.38,358/- and other charges of Rs.27,490/- is also due and the opposite parties has also attached the statement of accounts for the reference of the complainant. On receipt of email dated 31.10.2015, he was put into heavy mental pressure and agony and could not concentrate on his day to day works.  Further, he suffered a lot physically, mentally and economically.

14.     Again, he approached the first opposite party in person and informed that he has only one loan account pending vide loan account No.4580PL00030500 and insisted for verification.  During that time only, the opposite parties found that a person by named R.Ramesh had availed loan in the loan account No.4580PL00014385 and not this complainantt.  Due to similarity of the name of the complainant with that of the said another R.Ramesh, this error of wrong linkage was occurred.  So, the belated admission of the opposite parties is clearly proved the deficiency in service and negligent act of the opposite parties and therefore, the complainant approached the Grievance Redressal Team of the second opposite party through Email dated 04.11.2015 and complained about the identity theft occurred in the identity of name, for which the second opposite party Grievance Redressal Team acknowledged the email and issued a service request.  Later, on 07.11.2015, the second opposite party Grievance Redressal Team after thorough verification admitted that there is an error and also assured to remove the CBIL adverse entry in respect of the complainant's financial status which happened due to act of negligent and deficiency in service of the opposite parties. Later, on 05.12.2015, on verification of CIBIL report of the complainant, it reflects the unavailed loan account no.4580PL00014385 for Rs.92,000/- in his name and his score was reduced drastically, which is evidenced through Ex.C8 and Ex.C10..

15.     In the present complaint, the complainant claimed that there is deficiency in service on the part of the opposite parties. Before going into the case, it is relevant to refer the meaning of deficiency in service.  Section 2(11) of Consumer Protection Act, 2019 define the deficiency as follows:

(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy inthe quality, nature and manner of performance which is required to be maintained by orunder any law for the time being in force or has been undertaken to be performed by aperson in pursuance of a contract or otherwise in relation to any service and includes—

(i) any act of negligence or omission or commission by such person which

causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the

consumer;

16.     Here in this case, the opposite parties, who are non-banking financial institutions recognized by the Reserve Bank of India is bound by RBI Rules and Regulations but without taking care of the customer, negligently and deliberately doing these kind of services and have put the customers into severe mental and physical hardships.  In the reply version, the opposite parties had admitted that demand for payment of EMI in loan account no.4580PL00014385 was made and due to oversight, they have sent mail to the complainant.  It clearly shows that the opposite parties without taking into consideration of the customers' difficulties and problems and other consequences to the individual or family, simply saying that due to oversight this was happened.  The complainant has also examined the Branch Manager of Canara Bank, Puducherry as CW.2 and she clearly stated in her chief examination that loan under Pradhan Mantri Awas Yojana was denied under Ex.C1, one of the reasons is that low CIBIL score of the complainant.  Therefore, the complainant who was regular in repayment of the loan availed from the opposite parties, not to be punished for no error committed by him.  From the above, it is crystal clear that the opposite parties acted negligently and committed deficiency in service and it is also undoubtedly established through the oral and documentary evidence of the complainant and through admissions made by the opposite parties.  Further, the opposite parties neither choosen to cross examine the CW.1 and CW.2 nor in any evidence on their side. Therefore, the complainant is to be compensated for the deficiency in service and sufferings faced by him.  This point is answered accordingly.

Point No.4:

17.     The complainant, through his oral and documentary evidences in Exs.C1 to C11, clearly satisfied this Commission to grant compensation for the act of the deficiency in service by the opposite parties and for the sufferings met out by complainant from May 2014 to till the date of filing of the complaint.  Therefore, the complainant is entitled for the relief of compensation and the opposite parties are bound to pay Rs.90,000/- for the deficiency in service and also for the mental and physical agony caused to the complainant.  Further, the opposite parties are directed to pay Rs.10,000/- towards litigation costs.

          In the result, the complaint is allowed.

1. The opposite parties are directed to pay Rs.90,000/- for the deficiency in service, mental and physical agony caused to the complainant.
2. The opposite parties are directed to pay Rs.10,000/- towards litigation costs to the complainant.

18.     Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

19.     A copy of this judgment be provided to all the parties free of costs as mandated by the Consumer Protection Act, 2019.  The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

20.     File be consigned to record room alongwith a copy of this judgment.

Dated this the 30^th day of March 2023                                              

COMPLAINANTS' WITNESS:

CW.1          26.10.2016                    Thiru.R.Ramesh ( Complainant)

CW.2          02.08.2017                    Tmt.Jayasree

OPPOSITE PARTIES' WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:  Nil

LIST OF MATERIAL OBJECTS:  NIL