IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Wednesday the 06^th day of April 2022.

                                      Filed on  03. 2. 2021

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P R Sholy, B.A., LLB (Member)  In

                                               CC/No.33/2021

                                                         between

Complainant:-                                                     Opposite parties:-

1.    Sri.Ibrahim A,                                                                   1.   SBI CPSL      

         Kollamparambil,                                                                      Post Bag No.28,

         Nerkunnam P O.,                                                                    GPO, NewDelhi.

         Vandanam,                                                                              (Adv.Jitheshmenon

         Alappuzha-688005.                                                                 &Adv.Maheshkumar P G)

         (Adv.Ajmal A S)                                                              2.   Smt.Maneesha, Executive,

                                                                                                         Ambalapuzha Branch Associate,

                                                                                                         SBI CPSL

                                                                                                                     (Exparte)

                                                                                                   3.   The Branch Manager,

                                                                                                         Federal Bank, Vandanam

                                                                                                         (Adv.Hemalatha R)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019.

1.       Material averments briefly discussed are as follows: -

Complainant is having a savings bank account with the 3^rd opposite party M/s Federal Bank, Vandanam and there is sufficient balance in the account from January 2020.  From the last month of 2019 onwards complainant used to get phone call from Federal Bank Vandanam branch introducing as call from credit card section, SBI.  Without the knowledge and consent the complainant’s mobile number was given by the  3^rd opposite party.  When he visited 3^rd opposite party 2^nd opposite party Smt.Maneesha issued a card to him introducing as staff of SBI.  It was informed that all the amount of bills will be deducted from the account on 26^th of every month.  From

02.01.2020 the card became active and Rs.499/- was deducted being the rent of one year. 

2.       Complainant had purchased certain articles using the card.  Articles worth Rs.4,613/-were purchased during the month of January.  However the amount was not deducted from the account and he informed the matter to the staff of SBI.  As per their request Rs.4613/- was transferred into an account given by them.   This was repeated during February, April and August.  Complainant had to send the purchase amount to the said account through NEFT though sufficient balance was available in the account.

 3.      On 17.12.2020 complainant visited the branch of SBI and requested to cancel the credit card.  On 06.07.2020 onwards complainant used to get phone calls informing that Rs.8170/- is due from him.  Complainant had used the card only for 5 purchases and the entire amount was transferred to the account given by them.  Hence the  complaint is filed for giving a direction to the SBI agency not to make phone calls to the complainant and for compensation for mental agony.  Action may be taken against 3^rd opposite party for giving his personal number without consent.

4.       1^st opposite party filed a version  mainly contenting as follows:-

The complaint is filed seeking a direction to this opposite party to restrain from calling the complainant for any issue in relation to the card issued to him.  The prayers sought are not liable to be allowed since they are beyond the scope of the powers of this Commission.  The executives of this opposite party never call or disturb any customer unnecessarily.  The averment that representative of the opposite party had called for taking the credit card is misconceived and incorrect.  The complainant who was holding a savings bank account with the 3^rd opposite party had expressed his interest in getting a credit card and accordingly an executive of this opposite party had contacted him.  Thereafter complainant submitted an application along with the relevant requisite documents.  After being satisfied about the credibility card was issued. 

5.       The card which was issued to the complainant was a Federal bank SBI card.  Application was submitted for Federal Bank SBI card and had also authorized for auto swipe and auto debit mandate.  Complainant had paid an amount of Rs.499/- being the annual rent.  However due to some technical issue the auto debit was not activated.  It was advised to the complainant to share NACH (National Automated Clearing House) or SBI auto debit mandate form.  It was by virtue of the above said aspect, which was purely technical and not on account of any deficiency of service or negligence on the part of this opposite party that the auto debit mandate was not triggered.  Complainant was made aware of the above said fact and he had transferred the amount due through NEFT.  It is admitted that whatever amounts which were due at the time were paid by the complainant to the account of this opposite party.

6.       Thereafter complainant approached Ambalappuzha branch requesting for cancellation of the card.  However it is noticed that payments which were due on 07.10.2020 and 19.12.2020 were not paid by the complainant and the same resulted in his card being blocked.  It was informed that the card can be cancelled only after clearing the outstanding amount.  On account of the non-payment of the amounts which were due on 07.10.2020 and 19.12.2020, late payment charges and other charges accrued on the amount due from the complainant.  Complainant cannot disown his liability after failing to remit the amounts due.  There is absolutely no deficiency of service or any unfair trade practice by this opposite party.  Hence the complaint may be dismissed with cost.   

7.       3^rd opposite party filed a version mainly contenting as follows:-

There is absolutely no deficiency in service on the part of this opposite party.  All the allegation stated in the complaint are false and hence denied.  This opposite party has not revealed the contact number of the complainant to SBI card agency or anybody else as alleged in the complaint.  As in the normal course of business generally informs all customers about various facilities available to them including credit cards  and  advise the   customers to contact the agency  concerned,   if they   are                                                                 

interested.  Credit card facility was availed by the customer after discussing the terms and conditions with the said agency and this opposite party has no role in it.  There is no merit and bonafide in the complaint and hence complaint may be dismissed with cost and compensatory cost.

2^nd opposite party remained exparte.

8.       On the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to get an order of mandatory injunction against 1^st opposite party as prayed for?
3.  Whether the complainant is entitled to get any order against 3^rd opposite party as prayed for?
4. Whether the complainant is entitled to get compensation as prayed for?
5. Reliefs and cost?

9.       Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A7 series from the side of the complainant. Opposite parties have not adduced any oral evidence Ext.B1 and B2 were marked.

10.     PW1, the complainant is an SB account holder of 3^rd opposite party M/s Federal Bank Ltd.  Vandanam Branch, from 15/1/2008 and he  is having sufficient balance in the account from January 2020. Now his grievance is that from the last month of 2019 onwards he was getting regular phone calls from 1^st opposite party M/s SBI CPSL to avail a credit card.  Accordingly he availed credit card issued by the 1^st opposite party. He was called several times by the 2^nd opposite party.  It was assured that all purchases can be done through credit card and on the 26^th of every month, the amount will be deducted from the account.  The card was activated from 2/1/2020 and an amount of Rs.499/- was deducted from his account being the rent for one year. He purchased articles during January for Rs. 4,613/- by the credit card.  However the amount was not

deducted from his account. When contacted it was informed that there was some technical snag and so the amount may be transferred to the given account.  Accordingly he transferred Rs. 4,613/- to their account. He made purchases during February, April and August using the card. However the amount was not deducted and accordingly Rs.200/- each was sent to the given account on 10/3/2020, 28/5/2020 and 27/9/2020.  Thereafter he has not made any purchase using the card.  On 17/12/2020 he visited the State Bank of India, at their Ambalappuzha Branch and requested to cannel the credit card.  It was informed that the credit card is already blocked.  From 6/7/2020 onwards representatives of the 1^st opposite party is making telephone calls to him on  a contention that Rs.8170/ is due to them and  to pay the same.  However according to PW1  no amount is due from him and so the complaint is filed for giving a direction of the  opposite parties 1 and 2 not to call him  and  for taking  legal action against 2^nd  opposite  party  for giving  his phone number.  He is also seeking compensation for mental agony. 1^st opposite party filed a version contenting that the credit card was issued to the complainant as per his request and there was no compulsion. Complainant was purchasing articles using the credit card.  Due to some technical issue auto debit was not activated in his account and on the basis of the complaint given on 17/1/2021 the credit card was closed.  It was contented that complainant had made purchases on 7/10/2020 and 19/12/2020 and the amount was not paid.   The said amount along with its late payment charges and other charges are due to them.  Hence there was no deficiency of service.  3^rd opposite party filed a version mainly contenting that   they have not given the telephone number of the complainant as alleged in the complaint. Credit card facility was availed by the complainant after discussing the terms and conditions with the 1^st opposite party and they have no role in the same.  Hence according to them there was no deficiency of service from their part.  2^nd opposite party remained exparte.  Complainant got examined as PW1 and marked Ext.A1 to A8 series. Ext.B1 and B2 were marked from the side of 1^st opposite party.

11.     First of all  we will consider the allegation leveled against  the 3^rd opposite party in the complaint as well as in the  chief affidavit. According to PW1 he was having a SB account with the 3^rd opposite party M/s Federal Bank, Vandanam from 15/1/2008 and there is sufficient balance in the account from January 2020. His allegation is that  without his knowledge and consent his  telephone number was given to the  opposite parties 1 and 2 by the branch manager and using the number they were calling him and  compelled him to avail SBI Credit Card facility.   During cross examination by the learned counsel appearing for the 3rd opposite party PW1 admitted that his communication address with the 3^rd opposite party was last updated on 28/3/2013.  From 2008 onwards his mobile number is not available in the pass book.   He frankly admitted that 3^rd opposite party is not aware about his phone number. However he denied that 3^rd opposite party has not given his number.  So the allegation of PW1 against 3^rd opposite party that without his knowledge and consent his number was given to opposite parties 1 and 2 is disperced.  During cross examination PW1 admitted that his mobile number is not available in the pass book and it is not known to the 3^rd opposite party.  If that is so it is not known how 3rd opposite party can give his mobile number to other opposite parties.  So from the evidence on record it can be seen that there is no convincing evidence against 3^rd opposite party regarding the allegation leveled against them. 

12.     The allegation leveled against opposite parties 1 and 2 stands in different footing.  According to Pw1 due to several phone calls received from the representatives opposite party No.1 and No.2 he was compelled to avail a SBI card.  It was assured that he can purchase articles using the same and on 26^th of every month the amount will be directly debited from his account (Auto debit). Believing the words he purchased articles for Rs.4613/- during January 2020 (3 purchases). Since the amount was not debited from his account, the said amount was transferred to the account given by 1^st opposite party.  Thereafter he made purchases during February, April and August for   Rs.200/-  each and  the said  amount  was  also transferred to theaccount given by opposite parties 1 and 2, since there was no auto debit.  Later he contacted the SBI, Ambalappuzha branch and the card was cancelled on 17/12/2020. Hence according to PW1 no amount is due to opposite parties 1 and 2 from him.  However he is getting telephone calls from various corners in different languages stating that Rs. 8170/- is due from him.  1^st opposite party contented that the credit card was issued as per the request of complainant.  They had produced Ext.B1 series documents to prove the contention.  Ext.B1 series contains a copy of  Adhaar Card and copy of Pan Card of PW1.  So it was contented that complainant himself produced the documents before the 1st opposite party for availing the credit card.  Ext.B2 is the account statement of complainant with the 1^st opposite party.  According to Pw1 he purchased articles thrice during January 2020 using the credit card for Rs.4613/- and the said amount was transferred to the account given by 1^st opposite party since auto debit was not working.  Thereafter he purchased articles worth Rs.200/- each during February, April and August and the said amount was also transferred in to the account of 1^st opposite party.  PW1 asserts that thereafter there was no transaction using the credit card and it was closed on 17/12/2020.  However in para-6 of the version filed by the 1^st opposite party it is contented that there were 2 purchases on 7/10/2020 and 19/12/2020 by PW1 using the credit card and the said amount was not paid.  Rs. 8170/-due to them is the said amount along with late payment charges and other incidental charges.  During cross examination also the learned counsel appearing for the 1^st opposite party contented that there were two purchases on 7/10/2020 and 19/12/2020.  So the definite contention of the 1st opposite party is that   two amounts of purchases done on 7/10/2020 and 19/12/2020 is due to them.  Though such a contention is taken in the version 1^st opposite party did not enter the witness box to prove their case on oath.  Though they produced Ext.B2 account statement the said entries are conspicuously absent in the statement.  In said circumstances it was incumbent upon the part of the opposite party to examine their representative to prove that there were two purchases on 7/10/2020 and 19/12/2020 and the said amount was not paid.  For the

best reason known to them no witness was examined and no evidence was produced  for proving the same.  As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)

 “WHERE a party to the suit does not appear into the  witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

13.     From the evidence on record it can be seen that PW1 asserted that there was only three purchases during January and the total amount of Rs.4613/- was transferred into the account since the auto debit was not working.  Similarly there were three purchases during February, April and August of Rs.200/- each and said amount was also transferred into their account since auto debit was not working.  According to PW1 there were no other purchases. Per contra as well as during cross examination it was asserted by 1^st opposite party that amount is due to them for the  purchases made on 7/10/2020 and 19/12/2020 and the total amount is Rs. 8170/-.  However no evidence was adduced to substantiate such a contention 1^st opposite party could not produce any documents to prove that there were purchases on 7/10/2020 and 19/12/2020.  It is true that in Ext.B2 statement produced by them it is noted that Rs. 8170.03/- is due to them. However they did not produce any document to prove the purchases on 7/10/2020 and 19/12/2020. In said circumstances we are of the opinion that  the case advanced by 1^st opposite party  that Rs. 8170/-  is due to them is not proved by supporting evidence except Ext.B2 statement. On a  perusal of Ext.B2 statement it is seen that there was no transaction either on 7/10/2020 or on  19/12/2020.  Hence 1st opposite party has no business to demand Rs. 8170/- from the complainant and hence complainant is entitled for a mandatory injunction against opposite parties 1 and 2. 

14.     Complainant is seeking compensation from opposite parties for harassing him by calling and demanding amount.       We have already found that 1^st opposite party could

not prove that there were purchases on 7/10/2020 and 19/12/2020 as contented by them and  amount is due to them except   Ext.B2 statement.   In said circumstances complainant is entitled for compensation and we are limiting the same to Rs.3000/-. 

15.     Point No:-5

In the result complaint is allowed in part.

A)  Opposite parties 1 and 2  are restrained by calling complainant and demanding any amount.

B) Complainant is allowed to realize an amount of Rs.3000/- as compensation.

C) Complainant is allowed to realize an amount of Rs. 2000/- as cost.

The order shall be complied within one month from the date of  the receipt of  this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 6^th   day of April, 2022.                                                                        

                                                                  Sd/-Sri.S.Santhosh Kumar(President)

                                                                              Sd/-Smt. Sholy.P.R (Member)

Appendix:-

Evidence of the complainant:-

PW1         -     Ibrahim A (Complainant)

  Ext.A1    -     Copy of Federal bank passbook

Ext.A2     -     Copy of Federal bank Counter foil (for customer)

Ext.A3     -     Statement of Account  for the period 01.01.2020 to 30.5.2020

Ext.A4     -     Gmail letter dated 14.12.2020

Ext.A5     -     Address of SBI Cards & Services Ltd

Ext.A6     -     Gmail letter dated 14.12.2020

Ext.A7     -     Receipt dated  09.12.2019

Ext.A8     -     Receipt dated 14.12.2019

Evidence of the opposite parties:-

Ext.B1     -     Copy of Federal Bank SBI Card Application form

Ext.B2     -     Copy of account statement

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:-Br/-

Compared by:-