KUNDAN KUMAR KUMAI

This is an appeal under Section 41 of the Consumer Protection Act 2019, preferred against the final order passed by the Ld. DCDRC, Alipurduar on 20/07/2022 in CC No. 1/2020.

Brief facts of the appellant case are that, the respondent/complainant had purchased a digital mobile phone being model no- J730, Samsung, which had been purchased from M/S Eureka computer, Mahakal Dham, Alipurduar Court, Alipurduar on 19/02/2018, against the price of Rs. 19,900/- (Nineteen-thousand nine hundred) only. The above mobile had been covered under the insurance policy bearing no. OG-18-2401-9931-0000-9439 and had been financed by the appellants, at a monthly installment Rs. 2254/- (Two thousand two hundred fifty-four) only, for seven months totaling Rs. 15,778/- (Fifteen thousand seven hundred seventy-eight) only, against an agreement, which was to be deducted from the savings account of the respondent in SBI main branch vide account no. 11460910821.

After few months, when the respondent/complainant, went to update his account, he found that, the appellant had withdrawn from 05/01/2019 to 05/05/2019 an excess amount of Rs. 11,200/- (Eleven thousand two hundred) only, by five installments with each installment amounting to Rs. 2240/- (Two thousand two hundred forty) only. The respondent/complainant visited the office of the appellant, on several occasions. But they failed to give any satisfactory reply, for the excess amount withdrawn. Finally, on 17/09/2019, the respondent/complainant issued a legal notice through his Ld. Advocate under registered post, which had been received by the appellants. Getting no response, the respondent/complainant file this case. Hence this case.

The appellants, contested the case by filing written version wherein they denied, the allegations made by the respondent/complainant. They also mentioned, that, the appellant company was a holding company of “Bajaj Finance Limited” and when the said company was not made a party, the instant case should be dismissed for nonjoinder of parties. It is further mention, that on receipt of the notice dated 17/09/2019, a legal notice had been sent to the registered E-mail id of the respondent/complainant on 09/12/2019 stating that, the amount so deducted had been towards the insurance charges, availed by the respondent/complainant. It is further mentioned that the respondent/complainant had availed the insurance by giving consent to the appellant, which was evident from the call recording and the information sent to the respondent/complainant registered E-mail on 21/11/2018 and by post on 01/12/2018, it was further mentioned that , the respondent/complainant had availed insurance from the insurance partner of the appellant being HDFC Standard Life Insurance Company and the certificate of insurance had been sent to the respondent/complainant by way of E-mail dated 21/11/2018 and also by post on 01/12/2018. Hence for the above reasons, the respondent/complainant did not have any cause of action to file this instant case.

After hearing both the sides and ongoing through the evidence the Ld. DCDRC, Alipurduar, passed the impugned order directing   the appellants to pay an award Rs. 11,200/-( Eleven thousand two hundred) only, with the 6% rate of interest per annum, from the date of filing of this case, till the date of realization and also Rs. 50,000/- (fifty thousand) only as compensation for mental pain and agony, and Rs. 8,000/- (Eight thousand) only, as litigation cost totaling to Rs. 69,200/- (Sixty-nine thousand two hundred) only, excluding interest.

Being aggrieved by the above order, the appellants preferred this instant appeal on the ground that the Ld. DCDRC, Alipurduar, erred in law and facts by passing the impugned order.

Decision with reasons

At the time of final hearing, the Ld. Advocate for the appellant has stated, that the appellant was the holding company of the “Bajaj Finance limited” and therefore, the said Bajaj Finance Company was a necessary party, as the said loan had been financed by them. It is further argued, that even though the respondent/complainant had cleared the earlier loan, but had entered for a group insurance policy HDFC General Insurance Company limited in the month of November 2018 via tele binding, which was an accepted practice for such types of transactions and was legally valid. Moreover, the respondent/complainant had paid initial five installments and had not paid the last three installments. Under the circumstance the respondent/complainant had no cause of action to file the case and the Ld. DCDRC, Alipurduar, therefore, erred in passing the impugned judgment.

The Ld. Advocate for the respondent/complainant on the other hand has submitted that Rs. 11,200/- (Eleven thousand two hundred) only had been deducted unknowingly from has account and he had never applied for any group insurance policy via tele binding or any other mode. He therefore, prays for upholding the impugned judgment.  

The only two points that needs to be decided is whether the case is bad for mis-joinder of parties, the Bajaj FinServ ltd. against whom the case had been filed was not the proper party, as Bajaj Finance Ltd. was the proper party.  That apart the next point is whether the Group Insurance had been accepted by the complainant through tele binding. 

In respect to the first point, the entire case has been challenged in the manner as if Bajaj Finance Ltd. had contested the case.  This observation is further vindicated by the fact that the transactions between the respondent/complainant and the “Bajaj Finance Ltd. had been reproduced and certified by the appellant as the loan and transactions had been done between the appellant and the respondent/complainant. This belief is further strengthened, when the appellant in the written version filed before the Ld. DCDRC, Alipurduar, in para 5, wherein, it is mentioned, that the Bajaj Finance would be represented by Mr. Lal Bihari Singh before the Ld. DCDCRC, Alipurduar. Hence, when the Company Bajaj Finance Ltd. had already appeared in this case without being made a party and had contested the case all along, no question of violation of natural justice or prejudice could have been possibly been done. The appellant has therefore waived the right accrued to them and the contention of the appellant at this stage, does appear to be approbating and reprobating at the same time. Therefore, the contention of the Ld. Advocate, that the case was bad for mis-joinder for the parties does not appear to be tenable.

As regards, the second point with reference to the contract of Group Insurance Policy via tele binding is concerned, the Ld. Commission below has, decided the point in a lucid and in an apt manner, there is nothing for this Commission to interfere with the views and observation passed by the Ld. Commission below, while deciding the above point. Therefore, on this ground also the appeal fails.

As a result, the instant appeal fails.

It is therefore, ordered,

That the instant appeal be and the same is dismissed on contest but without costs.

The impugned order is therefore, up held.

Copy of this order be handed over to both the parties free of cost.

Copy of the judgment be sent to the Ld. DCDRC, Alipurduar for necessary information.