BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.341 of 2017

Date of Instt. 18.09.2017

Date of Decision: 13.06.2018

1. Kewal Krishan S/o Gopal Krishan.

2. Poonam Rani W/o Kewal Krishan

Both residents of ES-167, Makhdoom Pura, Jalandhar.

..........Complainants

Versus

1. M/s Indusind Bank Ltd. (Branch Office), 701-L, Model Town, Jalandhar through its Branch Manager, Jalandhar.

2. M/s Bajaj Finserv, (Branch Office) SCF-25 & 26, Ground Floor, Urban Estate, Phase-I, Near Golden View Hotel, Opposite Gurudwara Singh Sabha, Jalandhar.

3. M/s J. J. Electronics, 535, New Jawahar Nagar, Near Guru Nanak Mission Chowk, Mahavir Marg, Jalandhar through its Manager/Director/Owner/Partner.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Rajat Chopra, Adv Counsel for the Complainants.

OP No.3 exparte.

Sh. HS Kohli, Adv Counsel for the OP No.2.

Sh. Vinay Kant, Adv Counsel for the OP No.1. (Join Proceedings)

Order

Karnail Singh (President)

1. This complaint is filed by the complainants, wherein alleged that in the month of November, 2012, the complainants visited the showroom of the OP No.3 to buy a Samsung Refrigerator. The representative of the OP No.3 advised the complainant No.2 to buy their product on interest free EMI (s). He further told the complainant that they have tie-up with the OP No.2, who is working in the field of financing the home appliances to the genuine buyers without any interest on loan amount and the representative specifically told the complainant No.2 that the OP No.2 will not charge any single penny except the bill value of the product even in the installments and there is no any hidden charges. The complainant No.2 asked regarding schedule of repayment of loan amount, then he told the complainant that the OP No.2 will take back his financed amount in very easy interest free installments and the representative of the OP No.3 introduced their plan in which the total invoice/bill value will be divided in 12 equal installments/EMI (s) and at the time of billing, 4 installments/EMI (s) will be taken by them in advance and rest of the 8 EMI (s) will be taken in easy interest free monthly installments. Then the complainant No.2 agreed for the same and gave her consent at the spot for the purchase of a Samsung Refrigerator 277 Ltr. RT2935TNBSZ from the OP No.3. The bill value of the product was Rs.24,800/- and as per commitment, Rs.24,800/- was divided in 12 equal installments/EMI (s) of Rs.2067/- each and at the time of billing of the said product, an amount of Rs.8268/- was to be paid as 4 advance installments/EMI (s) to the OP No.2. After billing of the said product when the complainant handed over Rs.8268/- to the cashier of the OP No.3, then he told the complainant No.2 to pay Rs.8470/-. When the complainant asked why he will pay Rs.202/- extra, then the representative explained that Rs.8268/- on account of 4 advance installments/EMI (s) and Rs.202/- for EMI card, which will be issued and delivered later on by the OP No.2 within 30 days at the postal address of the complainant No.2. The complainant No.2 paid a sum of Rs.8470/- on the spot and cashier issued a receipt bearing No.APP391 dated 04.11.2012, amounting to Rs.8470/- to the complainant.

2. That after payment of the above said amount, the representative of the OP No.3 prepared loan documents of the complainant and in that event, a copy of PAN Card, Ration Card, Voter ID, Original cancelled cheque and other bank details were also taken by the representative. For the repayment of the above said loan, the signatures of the complainant No.2 were obtained on loan application forms and on direct debit/ECS (Debit Clearing) Mandate Form by the representative of the OP No.3. The said Direct Debit/ECS (Debit Clearing) Mandate Form was only valid for 8 monthly interest free installments of Rs.2067/- each and the date 31.08.2013 was specifically mentioned as validity of the Direct Debit/ECS (Debit Clearing) Mandate Form. The customer ID 9380077 and loan account No.4380CD00053562 was given to the complainant No.2 for further reference. Bank account No.0045C84669010 and other details was filled in the ECS Form and after that a retail invoice No.APP694 dated 04.11.2012 and above said refrigerator was delivered at the residence of the complainants. That both the complainants having their joint saving bank account with the OP No.1. On 04.11.2012, in the above said ECS Form the details of this joint saving bank account was mentioned for the repayment of the loan amount/EMI (s) to the OP No.2. It is pertinent to mention that in the year 2012 the bank account No.0045C84660910 and later on, it was changed by the OP No.1 as account No.10004079894.

3. That as per ECS form recovery of monthly EMI (s) of Rs.2067/- each was started by the OP No.2 from the joint saving account of the complainant No.2. It is pertinent to mention here that 8 installments/EMI (s) of Rs. 2067/- on 05.01.2013, 05.02.2013, 05.03.2013, 05.04.2013, 05.05.2013, 05.06.2013, 05.07.2013 and 05.08.2013 were recovered by the OP No.2 as ECS Debit from the said saving account. It is pertinent to mention here that no EMI Card issued to the complainant No.2 till date despite Rs.202/- was taken for it by the OP No.3 many times, but every time they made excuses and not issued the same. That all the installments/EMI (s) were paid by the complainant No.2 in time without any delay of single day and after that nothing was due. Even it can be seen in the loan account statement.

4. On 28.08.2017, the complainant No.1 received a SMS sent by the OP No.1 regarding deduction of Rs.117/- on account of ECS debit. When the complainant inquired from the toll free telephone number of the OP No.1, then the customer care representative advised to the complainant to sent en email from his registered email ID to the website of the OP No.1 to stop all the futures ECS deductions and promised the complainant that they will solve the complaint. An email in this regard was sent by the complainant, but no solution provided to them. Finally on 12.09.2017, the complainants received an email from the OP No.1 in which they clearly refused the complainant and advised to contact the office of the OP No.2. It is pertinent to mention here that no instruction was given by the complainants to the OP No.1 to deduct any ECS payment from their joint account. Without taking any permission from the complainants, the OP No.1 paid this amount to the OP No.2. The OP No.2 was specifically authorized to take only 8 installments of Rs.2067/- each and as per the ECS Debit form, it was only valid till 31.08.2013. The OP No.1 was not authorized by the complainants to pay any single penny to anyone as ECS Debit and this amount of Rs.117/- was debited by the OP No.1 after 5 years. As per law, Rs.117/- could not be debited as there is no authorization by the complainant to the OP. Then on 11.09.2017, a legal notice through email was sent to the OP No.2 to reimburse the amount of Rs.117/- and everything was made clear. In reply to above said legal notice, the OP No.2 replied that “they have deducted amount of Rs.117/- as nominal fee for annual renewal of EMI Card”. It is made clear by the OP No.2 that they have taken this amount for an EMI card, which was never issued to the complainant No.2. It is worth mentioning here that no EMI card was issued to the complainant and at the time of purchase of above said refrigerator, neither this condition was disclosed to the complainant No.2 nor the complainant gave consent or signed any document in this regard. The OP No.1 has broken the faith of the complainants by debiting the above said amount without checking ECS form details and authorization. The said payment has debited without any consent of the complainants. The OP No.1 is totally failed to providing secure and safe platform of the banking to the complainants. This act and conduct of the OP No.1 is totally non responsible and it arises a big question mark on the safety of the public money. It is further submitted that the OP No.3 has also defrauded the complainants by taking Rs.202/- as EMI Card issuing charges. The OP No.3 has provided deficiency in service to the complainant No.2. When they have received Rs.202/- as the card issuing charges, then it was the duty of the OP No.3 to ensure the issuance of the EMI Card within 30 days and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP No.1 may be directed to refund Rs.117/-, which were un-authorizedly credited to the account of the OP No.2 and further the OP No.1 may kindly be directed to pay Rs.40,000/- as compensation for mental tension/agony, harassment and legal fee. It is further requested that OP No.2 be directed to stop this unfair trade practice and malpractices and further the OP No.2 may be directed to pay Rs.30,000/- as compensation for mental tension/agony and harassment to the complainant and further OP No.3 be directed to refund Rs.202/-, which were taken in cash from the complainant No.2 for issuing of EMI Card and further OP No.3 may kindly be directed to pay Rs.20,000/- as compensation for mental tension/agony and harassment.

5. Notice of the complaint was given to the OPs, but despite service OP No.1 and 3 did not come present and ultimately, OP No.1 and 3 were proceeded against exparte.

6. OP No.2 served and appeared through its counsel and filed reply, whereby contested the complaint by taking preliminary objections that the instant complaint is defective, the reason being the complainant has made “Bajaj Finserv” as OP whereas, there is no company in existence by name “Bajaj Finserv” rather there is a Finserv Company is “Bajaj Finance Limited” and as such, the complaint deserves to be dismissed and further averred that the instant complaint filed by the complainant is gross misuse of the process of law and as such, the same is liable to be dismissed and further submitted that there is no negligence or deficiency on the part of the OP and even the complainant has suppressed the material facts from the Forum, therefore, complaint is liable to be dismissed and further submitted that as per Clause 32 of the agreement entered between the complainant and OP, all the disputes, difference and claims arising out of this loan agreement shall be settled by arbitration, which is to be held at Pune/New Delhi in accordance with the Arbitration and Conciliation Act, 1996. In view of the aforesaid, this Forum does not have the jurisdiction to entertain the present complaint. On merits, the replying OP admitted that the complainants had availed loan from OP No.2 towards the Samsung Refrigerator and price of the Refrigerator was also admitted Rs.24,800/- and monthly EMI to be paid Rs.2067/- and the tenure is for 12 months, out of which 4 EMI's were paid advance of Rs.8268/- and charges of the EMI Card i.e. Rs.202/- are also not in dispute. It is also admitted that a sum of Rs.117/- was got transferred from the account of the complainant as renewal fees of the EMI Card, but the said fee has been refunded to the complainant in September, 2017. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

7. In order to prove the case of the complainants, the counsel for the complainants Sh. Rajat Chopra, Advocate tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-10 and closed the evidence.

8. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A along with some documents Ex.OP2/1 to Ex.OP2/7 and closed the evidence.

9. We have heard the learned counsel for the respective parties and also gone scanned the file very minutely.

10. After taking into consideration the issue raised by the complainants and its reply given by the OP No.2, we find that the main contention of the complainants is only that the complainant got a loan from OP No.2 i.e. Bajaj Finance and at the time of making payment of the advance EMI (s), the complainant also paid a sum of Rs.202/- extra for issuing of EMI Card and in order to prove that the complainant paid Rs.202/-, receipt dated 04.11.2012 placed on the file, wherein the amount of Rs.202/- have been included in the four EMI (s) paid by the complainant and further, complainant alleged that the said EMI Card never issued or delivered to the complainant till today, but in order to renew the said Card, the OP No.1 further debited an amount of Rs.117/- from the account of the complainant through ECS-NEFT, whereas the complainant never allowed to transfer any amount from the account of the complainants after making the last installment i.e. on 31.08.2013, whereas the said amount of Rs.117/- was got transferred in the account of the OP No.2 by OP No.1 in the month of August, 2017 i.e. after five years, which is without the consent of the complainant and therefore, the complainant is entitled for getting return of the said amount of Rs.202/- as well as Rs.117/- and thereon interest and further complainant is entitled for compensation from each of the OP i.e. OP No.1 to 3.

11. No doubt, the OP No.1 and 3 did not come present rather they were proceeded against exparte in this case despite service, but OP No.2 appeared through its counsel and filed reply. If, we analyze the reply as well as claim of the complainant, then we came to conclusion that a sum of Rs.202/-, which was charged by the OP No.3 from complainant for issuing of EMI Card, is not denied by the OP No.2 in its reply rather the OP No.2 categorically stated in the reply on merit that the EMI Card was issued to the complainant and the same was dispatched on 29.06.2014 through Blue Dart Courier, vide POD Details 43305066965 and the said EMI Card was also received by the complainant on 04.07.2014. This version of the OP No.2 is not simple and oral rather it has been fortified with documentary evidence i.e. a Computerized Report/Status of the delivery, the same is available on the file Ex.OP2/6 and if we go through the said dispatch detail, wherein categorically mentioned that the Card Embo Generation dispatched on 19.06.2014 through Courier Blue Dart, vide AWB No.43305066965 and the same was delivered on 04.07.2014 and the said delivery was received by one Kawal. If, we analyze the oral version of the complainant that he never received the EMI Card as well as the plea of the OP, which is supported by the document Ex.OP2/6 that the said EMI Card was dispatched and delivered to the OP, then we can say without any apprehension that the documentary evidence always prevail upon the oral evidence. Admittedly, the version of the complainants is oral, whereas the plea taken by the OP No.2 that the said EMI Card was delivered to the complainant is a documentary evidence. So, with these observations, we are of the considered opinion that the said EMI Card was issued and delivered to the complainant.

12. Further, we like to make it clear that there is no dispute in regard to loan amount as well as payment of EMI rather the same is admitted and proved that the complainant has cleared the loan whatsoever he obtained from OP No.2, regarding that the OP No.2 itself brought on the file 'No Objection Certificate', wherein categorically mentioned that the Bajaj Finserv Limited has received complete payment under the loan agreement dated 06.11.2012 and there is no further amount outstanding and payable by the customer to Bajaj Finance Limited under the aforesaid loan.

13. The next question hings in the air is only whether the OP No.1 transferred Rs.117/- from the account of the complainants without their consent, through ECS/NEFT. Admittedly, at the time of taking loan and making a payment of its installment, the complainants gave their consent for debiting the installment amount from their account through ECS/NEFT, but the said consent is admittedly upto 31.08.2013 for the date of last installment, but thereafter OP No.1 has no right or authenticity to transfer any amount from the account of the complainants in the name of any of OP, but despite that the OP No.1 negligently and intentionally just to cause harassment to the complainants transferred an amount of Rs.117/- from the account of the complainants, in the account of OP No.2, although, the said amount is alleged by the OPs that it is for renewal of the EMI Card, but we are of the considered opinion that when the loan amount has been already cleared and the said EMI Card is not in operation and after five years of the payment of last installment, there was no fun to deduct any amount in the name of renewal charges from the account of the complainants, which is absolutely against the law and it will definitely harassed the complainant mentally as well as physically. As per version of the OP, the said amount of Rs.117/- has been credited in the account of the complainants in the month of September, 2017 and these factum have been envisaged by the OP in Para No.7 of the written reply on merits, but the said fact has not been controverted or rectified by the complainant in any manner, therefore, the factum in regard to debiting of Rs.117/- in the account of the complainant is admitted in the month of September, 2017, vide UTR No.CMS65685512228, but we are of the considered opinion that by deducting the said amount from the account of the complainant in the account of the OP No.2 by the OP No.1 is against the principle of natural justice, though the same is refunded back to the complainant, but once harassment is caused to the complainant, therefore, the OP No.1, who is the responsible for transfer of said amount by way of ECS and NEFT, is liable to burden with compensation, which is to be paid to the complainant.

14. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the compensation of Rs.5000/- to the complainants. The complaint of the complainant qua OP No.2 and 3 is without merits and the same is dismissed. OP No.1 is directed to make the aforesaid compensation amount within 30 days from the date of receipt of the copy of order, failing which the OP No.1 will liable to pay interest thereon @ 12% per annum from the date of filing complaint, till realization. This complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

13.06.2018 Member President