RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 290 OF 2017
(Against the judgment/order dated 06-01-2017 in Complaint Case
No.193/2010 of the District Consumer Forum, Auraiya)
Syndicate Bank, a body Corporate Constituted under
Banking Companies Acquisition and Transfer of
Undertaking Act, having its head office at Manipal,
District Udupi, Karnataka
having its branch at Dibiyapur,
89, Babu Dayaram Nagar, Dibiyapur
District- Auraiya, Uttar Pradesh
through its Branch Manager
...Appellant
Vs.
M/s Yadav Brothers
Gunjan Road Bhagwati Ganj
Dibiyapur, District Auraiya
Uttar Pradesh
through its proprietor Shri Shiv Kumar Yadav
...Respondent
BEFORE:
HON'BLE MR. SUSHIL KUMAR, PRESIDING MEMBER
HON’BLE MR. VIKAS SAXENA, MEMBER
For the Appellant : Sri Anoop Kumar Mishra, Advocate.
For the Respondent : Sri Naveen Kumar Tiwari, Advocate.
Dated : 14-02-2023
JUDGMENT
PER. MR. VIKAS SAXENA, MEMBER
Feeling aggrieved by the judgement and order dated 06. 01. 2017 passed by the learned District Consumer Commission, Auraiya passed in consumer complaint number 193 of 2016 M/s Yadav Brothers versus Syndicate Bank (now Canara Bank) whereby, the complaint was allowed and the appellant bank was ordered to pay respondent/complainant Rs.60,825/- along with an interest 7% per annum from the date of filing of the complaint.
In brief, facts of the case are that the respondent/complainant opened a current account number 8960
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307 0000 435 in the Branch Dibiyapur of the appellant bank in Year 2015. In the year 2016 the respondent filed complaint against the appellant bank alleging that the bank has illegally debited Rupees 45,825/- (Rupees Forty Five Thousand Eight Hundred and Twenty Five) in the month of January and March, 2016 from the said account as cash handling charges, without informing the respondent. The respondent filed this complaint for directing the appellant Bank to refund the amount along with interest and also sought other reliefs for compensation on account of physical and mental harassment.
The appellant bank submitted its written statement with averments that there was no deficiency of service on part of the appellant bank during the operation of the account. The action of bank was in consonant with the established norms, rules and practice of banks and the said cash handling charges was debited as per guidelines of Circular number 290 — 2012 — BC — P & D-85 dated 18 .10. 2012 which was exhibited on notice-board of the bank for General information of the customers and the same was also intimated to the respondent at the time of opening of the said current account. It is also contended by the bank that the current account was opened for commercial purposes and therefore the complainant does not come within definition of 'Consumer' as per provisions of the Consumer protection act, 1986.
The District Consumer Commission after hearing both the parties and going through the material available on record allowed the complaint, hence this appeal.
The main contentions taken by the appellant in the appeal are these that the present case does not come within the scope of a consumer case as the current account in question, was opened for commercial purposes and the case is not covered under the provisions of the said act and was liable to be dismissed only on this ground. The impugned judgement and order was passed without applying judicial mind because the account of the respondent was debited as per norms of the bank
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and also in terms of the contract between both the parties but the learned District Consumer Commission has failed to appreciate the important factual and legal points and therefore the judgement is illegal and arbitrary hence liable to be set aside.
We have heard the Counsels of the contesting parties on the appeal. After giving our thoughtful consideration to the contentions raised by both the parties and going through the record our findings are below to be recorded hereinafter.
In this complaint the Complainant has alleged that the appellant Bank, without any authority, debited Rs.45,825/- (Rupees Forty five Thousand Eight Hundred and Twenty Five) from this account and the committed deficiency in service. The most emphasized point raised by the appellant is that the respondent/complainant admittedly has opened a current account in the branch of the appellant bank for purpose of his business i.e. for commercial transactions, therefore, for this service, provided by the bank, the complainant is not a ‘consumer’ within definition of the consumer protection act and the complaint is not maintainable. The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:
Section-2 (1) (d).—“consumer” mean any person who,—
(i) | buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or |
(ii) | hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose; |
Explanation.—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 purposes of earning livelihood by means of self-employment.
Section 2(1) (o)— “service” means service of any description which is made available to potential users and includes, but not limited to,the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”
In the complaint the complainant has as a proprietorship firm admittedly engaged in business. A current account is usually opened and used for the purpose of business in commercial transactions and no individual opens a current account for his savings etc. It is has indicated that the current account has been meant for the purpose of earning livelihood by means of self-employment of any particular
The Honourable apex court in Laxmi Engineering Works v. P.S.G. In pursuance of the aforesaid judgements of Honourable Apex Court and Honourable NCDRD, we find that in this case also, the current account has been opened by a business firm without mentioning in the complaint that it is used for livelihood or self-employment of any person. Therefore, the transaction of current account in this case cannot be taken a consumer transaction and the respondent/complainant cannot be considered a consumer within definition of the consumer protection act.
The appellant has also stated that it has not committed any deficiency in service as the cash handling charges debited from the current account of the complainant are as per the rules and terms and conditions of
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any current account. For its support the bank has submitted a copy of circular number 290 — 2012 — BC — P &D dated 08-10-2012 which provides rates for cash handling charges for current and overdraft accounts of the bank. It is mentioned in the circular that only saving bank accounts are exempted from cash handling charges as for the existing guidelines. This circular specifically provides that cash handling charges will be imposed on any ‘current account’ of the bank. The Complainant has not submitted any document by which it can be shown that at the time of opening the current account in question, it was agreed that no cash handling charges will be imposed on the account. In absence of the any such evidence it cannot be assumed that the appellant Bank has wrongly, illegally or unauthorizedly imposed the cash handling charges on the account of the complainant. Therefore no deficiency in service is proved in this case.
From the discussion above we arrive at the conclusion that on one hand the transaction in question that is current account of the Complainant cannot be considered as a ‘consumer transaction’ and the Complainant does not come within definition of a ‘consumer’ within meaning of the consumer protection act and as such the complaint is not maintainable as a consumer complaint. On the other hand, by imposing cash handling charges in the current account in question, no deficiency in service on part of the bank, has been proved. The complainant is not entitled for the reliefs sought in the complaint. The learned District Consumer Commission has wrongly allowed the complaint. The complaint deserves to be dismissed and the appeal is fit to be allowed.
ORDER
The appeal is allowed and the impugned judgement and order of the District Consumer Redressal Commission is set aside.
Both the parties in the appeals shall bear their own costs.
Stenographer is requested to upload this judgement on the website of the commission forthwith.
Let copies of the judgement be made available to both the parties without delay.
(SUSHIL KUMAR) (VIKAS SAXENA)
PRESIDING MEMBER MEMBER
