Date of Complaint : 11.06.2014
Date of Order :26.04.2016
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3
PRESENT : THIRU. B. RAMALINGAM, M.A.M.L., : PRESIDENT
TMT.K. AMALA, M.A. L.L.B., : MEMBER – I
DR.T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.No. 338 / 2014
THIS TUESDAY 26TH DAY OF APRIL 2016
Mr. Musafer Gani Shahul Mammed,
S/o. Shual Hammed,
M/s. Nisha Fancy Gift Article,
No.113, Kutchery Road,
Luz Corner,
Mylapore,
Chennai 600 004. .. Complainant.
- Vs-
1. Mr. Balaji Vasu Devan, Manager, Kotak Mahindra Credit Card Division, No.39, Mantieth Road, Egmore, Chennai 600 008. 2. The Service Manager, Kotak Mahindra Bank Ltd., Kotak Credit Cards, Post Box NO.27703, Malad (East), Mumbai 400 097. 3. Mr. Haresah Hirunandni, Nodal Officer, Credit Card, Division, Kotak Mahindra Bank Ltd., 5th Floor, Kotak Infiniti Bldg. No.21, Infinity Park, Off Western Express High way, General A.K. Vaidya Marg, Malad (E), Mumbai 400 097. 4. The Service Manager, Nodal Officer, Credit Card Division, Kotak Mahindra Bank Ltd., 5th Floor, Kotak Infiniti, Bldg. No.21, Infinity Park, off Western Express High way, General Ak.K.Vaidya Marg, Malad (E)., Mumbai 400 097. .. Opposite parties. | | .. Opposite party. |
| | |
For the complainant : M/s. D.Paariventhan & another
For the opposite parties : M/s. M.Ajmal Azzath (Exparte)
ORDER
THIRUMATHI.K.AMALA, :: MEMBER-I
1. Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.2,00,000/- as compensation for deficiency in service and also to pay Rs.25,000/- towards mental agony and also to remove the complainant’s name listed in CIBIL, and to pay Rs.10,000/- for unfair trade practice and Rs.7,500/- as cost of the complaint.
2. The opposite parties have filed written version but not filed proof affidavit. Hence opposite parties were set exparte on 10.12.2014.
3. Perused the complaint, and the documents Ex.A1 to Ex.A9 filed by the complainant and proof affidavit and the entire C.C. records and considered the arguments of the complainant’s counsel.
4. The complainant contended that the opposite parties approached the complainant in person several times to avail credit card. Hence the complainant availed the credit card and the credit card limit is Rs.29,000/-. The complainant was regularly paying the dues. The complainant purchased for Rs.13,245/- and he had paid the entire amount on 23.2.2012 by way of cheque for Rs.13,245/-. But the opposite parties sent statement showing other fees and charges to be paid which resulted in torture, tension and mental agony. The opposite parties are charging exorbitant rate of interest more than RBI guidelines, and also not giving proper accounts. But sent illegal statement showing additional excess charges of Rs.2,937.46 and also demanded to pay interest to the tune of Rs.7,433.22 which is illegal. Hence he issued a legal notice to the opposite parties dated 23.10.2013, the opposite parties 1 & 2 failed to response whereas the opposite parties 3 & 4 replied to his notice with all concocted story. Therefore the opposite parties had committed deficiency in service in sending illegal statement of account with gross negligence causing mental agony to the complainant. Hence the complainant filed the above complaint seeking direction against the opposite parties claiming compensation for Rs.2,00,000/- for deficiency in service and also Rs.25,000/- towards mental agony and also to remove the complainant’s name listed in CIBIL, and to pay Rs.10,000/- for unfair trade practice and Rs.7,500/- as cost of the complaint.
Written version of opposite parties in briefly is as follows
5. The opposite parties are employees of M/s. Kotak Mahindra Bank Ltd., a Public Limited Banking and Financing Company incorporated under the provisions of companies act with the ROC and Banking Regulation Act with the RBI. The opposite parties denies all the allegation in the complaint except though that all expressly admitted herein and put the complainant to strict proof thereof. There is no relation between the opposite parties and the complainant, neither he paid any amount to the opposite parties towards fee to create any relationship as Consumer to file the present complaint and also for non-joinder of proper party namely Kotak Mahindra Bank. The opposite parties named in the complaint are only employees of the bank and there is no any relation as consumer between the complainant and the opposite parties. As such they are not personally liable for any deficiency on behalf of their employer bank. Mere issuing statement of account will not attract personal liability sending of statement is regular work of banking hours. The complainant himself apply for credit and as such the credit card was issued to him. It is also important to note that the card holder should furnish the correct 16 digit card number in all his communication and on the cheque while making payment. It is true that the complainant fully paid the sum of Rs.13,245/- since he mentioned the credit card number wrongly the cheque amount could not be credited to his account immediately and the amount was kept in suspense account. Since there is no payment credited in his credit card account the system showed applicable interest, charges sent to him. Hence the opposite parties are not liable for his mistake. When the complainant reported the matter to the bank the cheque amount credited to his account the charges was also reversed. The bank never demanded the complainant to pay any amount so far and they had informed him vide letter dated 27.11.2013 but no dues was payable by him. Hence there is no deficiency in service on the part of the opposite parties. The compensation claimed by the complainant is not sustainable. The inclusion of name in the CIBIL Statement is automatic and its removal is also automatic. Hence the complaint is liable to be dismissed.
6. The allegation of the complainant is that he had paid Rs.13,245/- for the purchase amount but the opposite parties sent statement showing the said amount as due and further the opposite parties also demanded a sum of Rs.7,433.22 as interest charges. Hence he issued a legal notice to the opposite parties but the opposite parties 3 & 4 replied admitting his payment of Rs.13,245/- and they had credited the said amount in his account and they had also reversed the outstanding charges of Rs.7,433.22 as there was no dues payable by him.
7. The complainant also raised on issue that subsequently the opposite parties sent statement of account showing Rs.2,937.46 as previous amount due and also adding the complainant’s name in CIBIL when he is not liable to pay any amount to the opposite parties.
8. On perusal of the records it is found that the opposite parties filed written version stating that they had reversed the outstanding charges of Rs.7,433.22 and there are no dues payable by the complainant and his CIBIL will be updated accordingly as no dues pending in due course of time. On perusing Ex.A7 reply notice from the opposite parties the same is revealed. But the opposite parties failed to give any reply regarding the statement sent by them showing Rs.2,937.46 as due as per Ex.A4. The opposite parties had also not adduced any evidence by filing proof affidavit to contest the case.
9. The complainant also stated that the opposite parties sent a message that Rs.2,937.46 is due in his credit card i.e. Ex.A8. Hence due to the act of the opposite parties his name has been included in the CIBIL, since the opposite parties had already admitted in their reply notice that there is no dues pending by the complainant the statement of account i.e. Ex.A4 and the message showing balance due i.e. Ex.A8 are all not sustainable. As such it proves that the opposite parties had committed deficiency in service by sending the above statement and the message to the complainant thereby causing mental agony to the complainant.
10. The complainant relief of compensation with the issue of demanding interest of Rs.7,435.22 by the opposite parties we are of the opinion that only after receipt of the legal notice from the complainant the opposite parties had reversed the outstanding charges of Rs.7,433.22. As such the complainant was put too much hardship is also acceptable.
11. On the other hand the complaint has been filed against the 1st and 3rd opposite parties in their individual capacity, whereas we feel that the opposite parties had acted only in their official capacity and as such direction can be issued against the opposite parties only in their official capacity.
12. Furthermore with regard to the grievance raised by the complainant that his name has been included in CIBIL for which though there is no documentary proof the opposite parties had not denied the same through any contra evidence. Hence in order to solve this issue we are of the view that the opposite parties 2 & 4 are also directed to issue No Due Certificate in respect of the complaint mentioned credit card number of the complainant if any.
13. The complainant relief of compensation with the issue of demanding interest of Rs.7,435.22 by the opposite parties we are of the opinion that only after receipt of the legal notice from the complainant the opposite parties had reversed the outstanding charges of Rs.7,433.22. As such the complainant was put to much hardship is also acceptable.
14. Therefore considering the fact and circumstances of the case, we are of the considered opinion that the 2nd and 4th opposite parties are jointly and severally liable to pay a sum of Rs.10,000/- as compensation towards deficiency in service and mental agony. The opposite parties 2 & 4 are also directed to issue No Due Certificate in respect of the complaint mentioned credit card account No.4166-4514-0012-7590 of the complainant and also to pay a sum of Rs.2,500/- as litigation charges to the complainant.
In the result the complaint is partly allowed. The 2nd and 4th opposite parties are jointly and severally directed to pay a sum of Rs.10,000/- (Rupees Ten thousand only) as compensation and also to issue No Due Certificate in respect of the complaint mentioned credit card Account No.4166-4514-0012-7590 of the complainant and also to pay a sum of Rs.2,500/- (Rupees Two thousand and five hundred only) as litigation charges to the complainant failing which the amount of Rs.10,000/- will carry interest at the rate of 9% p.a. from the date of this order to till the date of payment. This complaint against the 1st and 3rd opposite parties are dismissed.
Dictated directly by the Member-I to the Assistant, transcribed and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the 26th day of April 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s Side documents :
Ex.A1- 23.2.2012 - Copy of Bank of India Pass book entries.
Ex.A2- 5.03.2012 - Copy of Credit card Statement.
Ex.A3- 5.4.2012 - Copy of Credit card statement.
Ex.A4- 5.7.2014 - Copy of Credit card statement.
Ex.A5- 23.10.2013 - Copy of legal notice.
Ex.A6- 23.10.2013 - Copy of Postal receipt & Ack.card.
Ex.A7- 27.11.2013 - Copy of reply notice.
Ex.A8- 20.3.3014 - Copy of SMS issued by opposite party.
Opposite parties’ side documents: -
.. Nil .. (exparte)
MEMBER-I MEMBER-II PRESIDENT.
