BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Mr. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.515/2012
(Against order in CC.NO.256/2011 on the file of the DCDRC, Coimbatore)
DATED THIS THE 3rd DAY OF SEPTEMBER 2021
The Manager (Cards Service)
ICICI Bank M/s. K. Kumaran
Avinashi Road Branch Counsel for
Coimbatore – 641 004 Appellant / Opposite party
Vs.
Mrs. Shree Laxmi
8A, Bharathi Colony
3rd Cross, Peelamedu Served called absent
Coimbatore – 641 004 Respondent/ Complainant
The Respondent as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt.20.3.2012 in CC.No.256/2011.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing for appellant and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed as against the order passed by the District Commission, Coimbatore, by directing the appellant/bank to remove the name of the complainant in the defaulters list maintained by the CIBIL by taking appropriate action and to pay a sum of Rs.50000/- towards compensation alongwith cost of Rs.1000/-, on the ground that there is negligence on the part of the bank.
2. The case of the complainant before the District Commission in brief is as follows:
The complainant herein earlier filed a complaint in CC.167/2008 before the District Commission alleging deficiency on the part of the opposite party by not maintaining proper accounts with regard to the credit card facility availed by her. In the above complaint, the District Commission had passed an order on 20.4.2009 directing the appellant/ opposite party to cancel the credit card No.5177 1941 2198 7009 issued to the complainant on 15.6.2007 and to collect the admitted rate of interest and other charges, and to furnish a statement of account, and also directed the opposite party to pay a sum of Rs.5000/- towards compensation alongwith cost of Rs.1000/-.
Since the appellant/ opposite party had not complied with the above directions, the complainant filed an Execution Application No.64/2010 before the District Commission. During the pendency of the Execution Application, the opposite party had settled the matter by paying Rs.6000/- to the complainant by way of Demand Draft dt.30.12.2010, and thus the matter was settled between the parties by out of court settlement, and the EA was accordingly terminated by recording full satisfaction.
Subsequently, the complainant deposited the said Demand Draft in her SB Account with the opposite party on 7.1.2011. Later on 10.1.2011 the complainant tried to withdraw a sum of Rs.4000/- from her account through the opposite party’s ATM, but she could not withdraw, and the response from the ATM was shown as ‘insufficient funds’. When she obtained statement of account on the same day, it showed the available balance @ Rs.6160.70/-. Since the statement showed sufficient balance, she issued a cheque for Rs.4000/- to one Mr.C.Sundararaj. When the said cheque was presented on 11.1.2011, it was returned by the bank on 13.1.2011 with an endorsement ‘Insufficient funds’. Therefore, the complainant again obtained a statement of account on 27.1.2011, which showed clearly that on 10.1.2011 and on 13.1.2011, there was sufficient balance in her account. Therefore, the act of the opposite party in not honouring the request for withdrawal through ATM, and by dishonouring the cheque would amount to deficiency in service when there was sufficient balance in her account. Therefore, the complainant filed the present complaint in CC.No.256/2011 alleging deficiency in service on the part of the bank in not furnishing the statement of account as directed by the District Commission as per the order in CC.No.167/2008 dt.20.4.2009, and for not honouring the demand for money through ATM on 10.1.2011 and by way of cheque on 13.1.2011, when there was sufficient balance in the account of the complainant. The compensation was claimed at Rs.2,00,000/- alongwith cost, and also prayed for withdrawal of the report given by the opposite party to CIBIL against the complainant.
3. The opposite party/ bank had resisted the allegations of the complainant before the District Commission, by filing version, stating that it is true that the District Forum had awarded a sum of Rs.5000/- towards compensation alongwith cost of Rs.1000/-, and in compliance of the direction by the District Commission, the said amount was paid to the complainant by way of Demand Draft during the pendency of Execution Application, and based on the settlement the Execution Application was terminated.
When the complainant had deposited the said Demand Draft in her Savings Bank Account, since there was an outstanding in the complainant’s credit card account, by exercising the banker’s lien, the said amount was debited from her Savings Bank account and has credited towards outstanding of the complainant’s credit card account. Since the bank is having lien on the customer’s account, absolutely there is no deficiency in service on the part of the opposite parties. Thus prayed for dismissal of the complaint.
4. The District Commission after hearing the submissions on either side, had observed that there is no dispute that a banker is entitled to exercise the banker’s lien with regard to the amount in their hand, when the borrower had not paid her dues to the bank towards the usage of the credit card, but it could be justified only if the opposite party had issued a statement of account, showing the amounts due and payable by the complainant. Thus holding that there was deficiency in service on the part of the opposite party, directed the opposite party to remove the name of the complainant from the defaulters list maintained by the CIBIL, and pay a sum of Rs.50,000/- towards compensation apart from cost of Rs.1000/-. Aggrieved over the order impugned, the opposite party filed this appeal.
5. When the matter was taken up for consideration, the learned counsel appearing for the appellant submitted that mainly there were two directions as per the earlier order. One of the directions is to cancel the credit card account w.e.f. 15.6.2007 and collect the charges if any due, after giving proper account in writing to the complainant and the other direction was to pay compensation of Rs.5000/- alongwith cost of Rs.1000/-. As per the direction of the District Commission the statement of account was furnished to the complainant as per the letter dt.21.5.2009. The direction for payment of compensation was also complied with during the Execution proceedings, and on the basis of the compliance, the Execution Application was terminated. The complainant once reported full satisfaction before the District Commission, in the Execution Proceedings, now cannot raise the same issue attributing deficiency on the part of the appellant/ opposite party. But without considering all these aspects, the District Commission had awarded a heavy compensation of Rs.50000/-, which is liable to be set aside.
6. Before this commission, the Respondent/ complainant though served remained absent. Hence we have heard the learned counsel for the appellant, perused the material records and the order impugned, and passed the following order:
7. Point for consideration is
1. Whether there is deficiency in service on the part of the opposite party?
2. If so, whether the compensation awarded is correct?
8. POINT NO.1:
There is no doubt that the appellant/ opposite party has the right for exercising their lien over their customer’s account. But we are of the considered opinion that the bank could have informed the District Commission about the outstanding of the credit card account of the complainant, and would have obtained specific observation at the time of disposing of the Execution Application for exercising their lien over the award amount. But the opposite party showed compliance of the order by giving money in one hand, and taking it by other hand in the guise of exercising their lien would have caused mental agony to the complainant.
The appellant/opposite party would contend that they have furnished statement of account by letter dt.21.5.2009 itself. Whereas they have not furnished any proof for furnishing the statement of account on 21.5.2009. The allegation of the complainant in the first complaint was that the opposite party had not maintained proper accounts with regard to the credit card facility availed by her. Therefore, without furnishing statement of account, the complainant may not be in a position to know the outstanding balance with regard to the credit card account. Thus the non-furnishing of the statement of account with regard to the credit card account would definitely amount to deficiency in service on their part.
9. Secondly the amount of Rs.6000/- awarded by the District Commission was also paid only after the Execution Application was filed by the complainant. Therefore, irrespective of the fact that the complainant had reported full satisfaction in the Execution proceedings, we find some force in the case of the complainant before us now by alleging negligence on the part of the appellant/opposite party in non-furnishing of statement of account pertaining to the credit card account, and the efforts for withdrawing money proved futile inspite of the statement showing sufficient balance. Therefore we hereby concur with the findings of the District Commission that there is deficiency in service on the part of the opposite party. Point No.1 is answered against the appellant.
10. POINT NO.2:
The District Commission by holding that there is deficiency in service on the part of the appellant/ opposite party has awarded a compensation of Rs.50000/- alongwith cost of Rs.1000/- apart from direction to remove the name of the complainant from the CIBIL list.
For the non-furnishing of statement of account, awarding compensation of Rs.50000/- appears to be extremely on the higher side. Eventhough since the deficiency on the part of the appellant/ opposite party is proved, we are of the considered opinion that awarding a sum of Rs.5000/- towards compensation would meet the ends of justice.
Accordingly, the order of the District Commission by awarding a sum of Rs.50000/- towards compensation is modified and is reduced to Rs.5000/-. Rest of the directions are hereby confirmed. Point No.2 answered accordingly.
11. In the result, the appeal is allowed in part, modifying the order of the District Commission in CC.No.256/2011 dt.20.3.2012 by reducing the award of compensation @ Rs.5000/- instead of Rs.50000/-. Rest of the directions are hereby confirmed. There is no order as to cost in this appeal. Time for compliance two months from the date of receipt of the copy of the order.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/RSJ/ ORDERS
