IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 167/09 DATED 09.11.2009<br /> ORDER<br /> <br /> Complainant N.S.Vijayakumar, No.1358, 2nd Stage, Srirampura, Mysore.<br /> (By Sri.Shivaprakaksh.A.S.,h Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Manager, M/s ICICI Bank Ltd., <br /> Shetty Mansion, Ramavilas Road, Mysore.<br /> 2. M/s ICICI Lombard GIC Ltd., No.205, Mythri Arcade, Kantharaj Urs Road, Saraswathipuram, Mysore.<br /> (By Sri.Gerald Castelino, Advocate for O.P.1 Sri.R.P.Poornachandra, Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 07.05.2009<br /> Date of appearance of O.P. : 26.05.2009<br /> Date of order : 10.11.2009<br /> Duration of Proceeding : 5 MONTHS 14 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant filed the complaint, seeking a direction to the first opposite party to pay a sum of Rs.24,193.45 along with interest at the rate of 12% and further, compensation of Rs.1,00,000/- and cost of the proceedings.<br /> <br /> 2. In the complainant among other facts, it is alleged that, the complainant is the customer of the first opposite party bank having S.B. account No.625501505938. It has issued credit card bearing No.4477468126883003 dated 24.04.2007. Said card has not been activated till the date of the complaint. The first opposite party debited a sum of Rs.24,193.45 on 24.05.2009 in the S.B. account of the complainant. When the complainant complained about the same, he received reply from the first opposite party, stating that he has not paid a sum of Rs.28,276.36, the amount utilized through the credit card. Certain correspondences between the parties is narrated and further it is alleged that, the first opposite party issued a statement of account, alleging that the complainant has not paid EMI payment towards ICICI Lombard GIC Insurance Company Ltd., It is stated that, in fact, the complainant has not taken any such policy from the second opposite party. It is alleged that, the first opposite party has illegally withheld the amount. In the other words, debited the said amount from the account and as such, complainant was unable to withdraw the salary credited into the said account etc., Hence, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party has contended that, the complainant has not approached the Forum with clean hands. The averments of the complaint are in-correct, false, baseless and frivolous. It is contended that, the complainant has utilized the credit card for availing insurance policy from the second opposite party. As per the request of the complainant, premium of the insurance was paid to the second opposite party. The complainant never opted to clear the dues. He has filed frivolous complaint. It is contended that, the first opposite party has general lien on over dues from the S.B. account. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. During the pendency of the proceedings, the second opposite party has been impleaded and in the version, it is contended that, on 10.03.2008, the complainant took insurance policy, which was sent to the complainant on 14.03.2008 through D.T.D.C. Courier and the same was received by the complainant on 17.03.2008. Also, it is contended that, the complainant approached this opposite party for cancellation of the policy. On 21.05.2009, the RBI issued an intimation for cancellation of the policy of the complainant. Accordingly, policy was cancelled. The complainant sought for refund of premium. By then, complainant had paid Rs.12,771/- premium for the first year and Rs.8,514/- during second year. Since, the refund request was made after a period of one year and the policy covered him for more than 2 years. First year premium was adjusted to his premium account for giving coverage for one year and hence, there was no refund. Out of Rs.8,514/- premium collected for second year deducting towards cancellation to the extent of 50%, Rs.4,257/- is refunded.<br /> <br /> 5. In support of their respective contentions, the parties have filed their affidavits and certain documents are produced. We have heard the learned advocates for the complainant and opposite parties and perused the records.<br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved deficiency in service on the part of the first opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- It is found from the records that, a sum of Rs.24,193.45 has been debited by the first opposite party in the S.B. Account of the complainant. The complainant questioned about the same with first opposite party. The first opposite party replied that a sum of Rs.28,776.36 has not been paid for utilizing the credit card. Later, the first opposite party informed the complainant that said amount has been debited towards the insurance policy, that the complainant had taken from the second opposite party<br /> <br /> 9. Thus, considering the facts and the material on record, debiting the amount in the S.B. account of the complainant maintained by him with the first opposite party bank, is admitted. Both opposite parties claim that complainant had taken insurance policy and towards premium that amount has been debited. The complainant denied taking of any insurance policy. When the complainant has denied taking of any insurance policy from the second opposite party, it is for the first opposite party to prove, in fact complainant had taken insurance policy and as per the direction of the complainant, the premium amount was deducted in the S.B. account and in turn that amount was paid to the second opposite party insurance company. Incidentally, it is relevant to note that, the first and second opposite party are sister concerns.<br /> <br /> 10. The second opposite party has contended that, on 14.03.2008, the insurance policy was sent to the complainant through D.T.D.C. Courier, which was received by the complainant on 17.03.2008. To prove this fact, either of the opposite parties have not produced copy of the insurance policy and that in fact complainant had taken such insurance policy. Likewise, to prove that, the second opposite party had sent the insurance policy through the courier, there is no evidence. Likewise, there is no evidence to prove that the complainant had received the said policy. Ultimately, we have no alternative than holding that taking of insurance policy by the complainant has not been proved.<br /> 11. It is definite and specific contention of the first opposite party that, towards insurance premium, amount has been paid as per the request of the complainant. When this is the specific contention of the first opposite party bank, it is for the bank to prove that the complainant had instructed the first opposite party to pay the insurance premium to the second opposite party. To prove that complainant had made request to the first opposite party bank to pay the insurance policy, there is no evidence except the interested statement.<br /> <br /> 12. When the second opposite party contend that, complainant had taken insurance policy and that the policy was sent to the complainant to substantiate the said fact, the second opposite party ought to have produced documentary evidence. The first opposite party is a bank and it claims, on the request of the complainant, the premium was paid. When it is banking transaction, to substantiate the same, the first opposite party has not produced any document. For non-production of any documents either by the first opposite party or the second opposite party, no reasons are assigned. Under the circumstances, adverse inference shall have to be drawn.<br /> 13. It was argued for both opposite parties that, policy was taken by the complainant over telephone and alleged voice recorded CD has been produced. The complainant seriously disputed the said fact. Hence, in the absence proof of the same, said contention of the opposite parties, cannot be accepted. Since, the opposite parties have failed to prove that the complainant had obtained insurance policy, the contention of the first opposite party that, the amount was debited in the account of the complainant towards premium, cannot be believed. In the result, the contention of the complainant that, said amount debited illegally, has to be believed. Thus, claim of the complainant regarding deficiency in service has been established.<br /> 14. As could be seen from the versions, a sum of Rs.24,193/- was deducted and thereafter Rs.21,284/- was claimed and later, Rs.28,776/-. To substantiate these figures, absolutely there is no evidence.<br /> 15. The second opposite party in the version, has contended that on the intimation of RBI, the policy of the complainant was cancelled. If that was so, what made the second opposite party in not producing the said intimation, absolutely there is no reason or explanation. Then, it is contended by the second opposite party that complainant had sought refund of the premium. It is stated, “by then, the complainant had paid Rs.12,771/- towards first year premium and Rs.8,514/- towards premium during the second year. Since, refund request was made after a period of one year and policy covered him for more than a year. The first year premium of Rs.12,771/- was adjusted to his premium account for giving coverage for one year and hence, there was no refund was given to him in the first year premium. Out of Rs.8,514/- premium collected during the second year after making the deductions for cancellation of policy, the second opposite party has made deductions of 50% from the premium paid in the second year and refund Rs.457/- to the complainant since policy has been cancelled.” Reading the said contention, one cannot make out why the premium that was collected for the first year has not been refunded to the complainant. So also, regarding deduction of 50% premium nothing is on record. Also, refund of remaining half amount. At the cost of repetition, as contended if really, the policy was cancelled as per the intimation of the RBI, it was bounded duty of the second opposite party to refund the entire amount. Moreover, has contended when the complainant had taken the policy, what made the RBI to cancel the policy, absolutely there is no material on record. At the cost of repetition as noted here before, taking of the policy by the complainant itself has not been proved.<br /> 16. Considering the facts and the material on record as noted here before, since first and second opposite parties are sister concern, in the absence of insurance policy, debiting certain amount in the S.B. account of the complainant, amounts to deficiency in service on the part of the first opposite party and further considering the contentions of both opposite parties, the act of debiting the amount in the S.B. account of the complainant, further amounts to Unfair Trade Practice.<br /> 17. The banking business is based on faith and trust. With a trust, the general public deals with banks in money matter. The citizens prefer banks than private money lenders or other financial institutions, because of the trust and faith. If the banks engage in Unfair Trade Practice as in the case on hand, a day may come that no citizens will have trust in the banks.<br /> 18. The first opposite party has contended that, the complaint is false, baseless and frivolous. Considering the facts and the material on record, in fact we are of the opinion that the defence set up by the opposite party is false, baseless and frivolous.<br /> 19. The complainant has alleged that, his salary was being credited into his S.B. account with the first opposite party and on account of illegal debit of the amount referred to here before, he was not able to get the salary. The complainant alleges that he sustained monitory loss and also hardship and mental agony. Considering the entire facts, when the customer of the bank who is an employee is unable to get his monthly salary that was credited into his S.B. Account, certainly suffer mental agony and also monitory loss. The complainant has claimed a sum of Rs.1,00,000/- in this regard. We have come across some other similar cases against the present opposite parties and hence, to curb such act, heavy compensation shall to be awarded to the aggrieved person. However, claim of Rs.1,00,000/- appears to be on higher side and hence, we award Rs.20,000/- only. <br /> 20. Accordingly we answer the point partly in affirmative.<br /> 21. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The first opposite party is hereby directed to recredit a sum of Rs.24,193.45 into the S.B. Account of the complainant along with interest at the rate of 12% p.a. from the date of the debit till the date of the credit, within a month from the date of this order.<br /> 3. Further, first opposite party is hereby directed to pay a sum of Rs.20,000/- compensation to the complainant towards monitory loss, inconvenience caused and also, towards mental agony, within a month from the date of this order and on failure, the amount will carry interest at 12% p.a.<br /> 4. Further, first opposite party is hereby directed to pay a sum of Rs.2,000/- towards cost of the proceedings to the complainant.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 10th November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />