BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 61/2009 Filed on 17.03.2009

Dated : 29.09.2012

Complainant :

Anil Kumar. T.S, S/o late C. Somasekharan Nair, 'Sreragom', KNRA 49, Kadappathala Temple Road, Kowdiar, Thiruvananthapuram-695 003.

(By adv. Rajeev. S.S)

Opposite parties :

1. State Bank of India, Althara Branch, Vellayambalam, Thiruvananthapuram represented by the Manager.

    

   (By adv. H. Josh)

    

2. M/s SBI SPCL, Rajaji Salai, 4^th Floor, Jesus Calls Building, Parrys, Chennai-600 001 represented by the Managing Director.

    

3. Royal Sundaram Alliance Insurance Company, Sundaram Towers, 45 & 46, Whites Road, Chennai – 60014 represented by the Managing Director.

    

(By adv. V. Manikantan Nair for 3^rd OP)

This O.P having been taken as heard on 05.09.2012, the Forum on 29.09.2012 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to filing of the complaint are that complainant was issued a credit card of the 2^nd opposite party M/s SBI SPCL, Chennai bearing No. 4317515049708499 in the year 2005, at the instance of the 1^st opposite party SBI, Althara Branch, without any kind of requisition from the complainant, that complainant had surrendered the said card in the same year itself with the 1^st opposite party without any outstanding amount whatsoever, that 2^nd opposite party confirmed the surrender of the card by the complainant over phone, that complainant had availed the service of the credit card issued by the 2^nd opposite party believing that the same is an entity of the 1^st opposite party and had relied on the reputation and goodwill enjoyed by the 1^st opposite party, that complainant received a monthly statement dated 23.08.2007 from the 2^nd opposite party along with a copy of hospital cash insurance policy of the 3^rd opposite party Royal Sundaram Alliance Insurance Company showing an outstanding amount of Rs. 8,309/- which include payment for insurance for Rs. 5,788/-among other fee towards processing, administration fee etc., that complainant was taken aback by the said statement as he had neither sought for such a hospital cash insurance policy nor did have any such occasion to pay any amount towards such premium, as the same was already surrendered as early as in 2005 itself, that 2^nd opposite party had indulged in an unethical business practice by incurring the liability of the premium and other processing fee on the complainant without his instructions and knowledge. Complainant was not given any clarifications regarding the same when contacted the 2^nd opposite party, that complainant was consistently disturbed by telephonic calls from the 2^nd opposite party with threatening overtones demanding the payment of amount as per their statement dated 09.09.2007, that complainant issued a legal notice on the 2^nd opposite party on 31.10.2007. Despite the receipt of said notice, 2^nd opposite party issued lawyer's notice on 10.10.2008 demanding the payment of Rs. 8,638/-. 2^nd opposite party is still continuing the demand of payment along with undue interest from the complainant on the ground that the said the policy is being renewed each year at their behest. The action of the 1^st opposite party in allowing the 2^nd opposite party to perpetrate unfair trade practice of the aforesaid nature, utilizing nomenclature, goodwill and reputation of the 2^nd opposite party amounts to unfair trade practice as well as deficiency in service on the part of the opposite party, that 1^st opposite party is vicariously liable for the action of the 2^nd opposite party. Hence this complaint to direct 1^st and 2^nd opposite parties to desist from continuing the aforementioned unfair trade practice and direct opposite parties to pay compensation and costs to the complainant.

1^st opposite party filed version contending interalia that complaint is not maintainable either in aw or on facts, that all services of credit cards are provided by SBI Cards and payment services Pvt. Ltd., that 1^st opposite party is a banking institution and is not connected with the transactions of credit card, that 1^st opposite party never offered any service of credit card to the complainant. Hence complainant has no locus standi to sue against 1^st opposite party. 1^st opposite party is not vicariously liable for any acts of the 2^nd opposite party, which is an independent company, that complainant never surrendered any card to 1^st opposite party as alleged in the complaint. 1^st opposite party never allowed the 2^nd opposite party to perpetrate unfair trade practice. 1^st opposite party is a stranger in the said transaction and hence no action can be taken in this regard against 1^st opposite party. No cause o action arose against 1^st opposite party. 2^nd opposite party has not turned up despite service of notice nor has 2^nd opposite party filed version. 3^rd opposite party filed version contending that there is no specific allegation against the 3^rd opposite party and hence complaint is not maintainable against the 3^rd opposite party, that 2^nd opposite party SBI Cards for the benefit of its customers avails group insurance policies covering various customers remitting premium in respect thereof to the 3^rd opposite party, that 3^rd opposite party acts only upon instructions given by the 2^nd opposite party. 3^rd opposite party had neither received any premium in respect to the aforesaid card pertaining to the complainant at any point of time nor issued any policy to the complainant, that 3^rd opposite party is an independent entity engaged in the general insurance business which cannot be held responsible for the 1^st and 2^nd opposite parties' credit card demands, transactions and charges, that further the complainant could have sought for cancellation of the policy within 15 days of the receipt of the policy for claiming refund of full premium, if complainant was really issued any policy by the 3^rd opposite party which the complainant did not do which itself shows that 3^rd opposite party did not issue any policy to the complainant. Hence 3^rd opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

(i) Whether there has been unfair trade practice and deficiency in service on the part of opposite parties?

(ii) Whether the complainant is entitled to any of the reliefs prayed for in the complaint?

In support of the complaint, complainant has filed affidavit and has marked Ext. P1 to P9. In rebuttal, 1^st opposite party has filed affidavit.

Points (i) & (ii) :- It has been the case of the complainant that complainant has never applied for credit card and without the consent of the complainant, 2^nd opposite party issued credit card through 1^st opposite party. It has also been the case of the complainant that since the credit card was found to be not of any use to the complainant in his routine affairs, complainant surrendered the said policy in the year 2005 itself with the 1^st opposite party. According to complainant 2^nd opposite party confirmed the surrender of the said card. It has also been contended by the complainant that he had availed the service of credit card issued by 2^nd opposite party believing that the same is an entity of 1^st opposite party SBI and had relied on the reputation and goodwill enjoyed by the 1^st opposite party. The issue herein is with respect to the statement issued by the 2^nd opposite party to the complainant on 23.08.2007 along with a copy of Hospital Cash Insurance policy of the 3^rd opposite party showing an amount of Rs. 8,309/-. The very case of the complainant is that he had surrendered the said card in the year 2005 itself, thereby the action of the opposite party in issuing statements and insurance policy to the complainant amounts to unfair trade practice and deficiency in service on the part of the opposite party. To support the complaint, complainant has led evidence by way of affidavit and Exts. P1 to P9. Ext. P1 is the monthly statement issued in the name of complainant by the 2^nd opposite party. On perusal of Ext. P1, 2^nd opposite has claimed an amount of Rs. 8,309.92 towards insurance policy and other fees towards processing fee, administration fee etc. Nowhere in Ext. P1 series the use of credit card by the complainant is mentioned. Ext. P2 is the copy of the hospital cash insurance schedule of the 3^rd opposite party. A perusal of Ext. P2 reveals that the said insurance is in connection with a master policy. Name of the proposer is Anil kumar. Other names mentioned in the policy are Ramya, Lekshmi Kutty Amma. According to complainant the name of his wife and mother mentioned in Ext. P2 are incorrect. As per Et. P2 the total amount payable comes to Rs. 5,788/- and period of insurance is from 16.08.2007 to 15.08.2008. It has been contended by the complainant that he had surrendered the SBI card to the opposite party in 2005 itself, thereby the insurance policy issued for the period 2007-08 has no relevance with the surrendered SBI card. Ext. P3 is the copy of the advocate notice addressed to the 2^nd opposite party calling upon them to cancel the monthly statement dated 09.09.2007 and confirm the cancellation of the credit card. Ext. P4 is the postal receipt. Ext. P5 is the acknowledgement card. Ext. P6 is the reply issued by opposite party at its office at Delhi to complainant according one final opportunity to clear the outstanding dues amounting to Rs. 8,638/- within a period of 7 days of the receipt of the said notice. Ext. P7 is the copy of the ration card in the name of Sreelaja. S, issued by Taluk Supply Officer. As per Ext. P7 the card members are Sreelaja. S, J. Sarojini Amma (mother of Sreelaja), T.S. Anil Kumar (husband of Sreelaja), and others. As per Ext. P7 Sreelaja is the wife of T.S. Anil Kumar. According to complainant, mother's name is B. Thankam. But in Ext. P2 hospital cash insurance schedule the name of his wife and his mother are recorded differently from what is stated in Ext. P7. Ext. P8 is the copy of the ration card in the name of C. Somasekharan Nair in which card holder's wife is recorded as B. Thankam.. Et. P9 is a portion of newspaper advertisement in connection with State Bank of India. The very stand of the 3^rd opposite party insurance company Royal Sundaram Alliance Insurance Company is that they act only upon the instructions given by 2^nd opposite party SBI Cards, who receive premium from large number of customers by debiting their respective accounts after getting their consent to opt for the policies which are done through tele-campaign. According to 3^rd opposite party they had neither received any premium in respect to the aforementioned card pertaining to the complainant at any point of time nor issued any policy to the complainant. 3^rd opposite party has no dealing with the complainant whatsoever in regard to the issuance of the policy or debiting the credit card account of the insured. Hence according to 3^rd opposite party, 3^rd opposite party cannot be held liable for the charge deducted by opposite parties 1 & 2 while dealing with the credit card transaction of the complainant. Complainant also admits that he has never applied to 3^rd opposite party for issuance of any policy and the said policy Ext. P2 is issued without his consent. 1^st opposite party during cross examination of the complainant has denied the suggestion that 1^st and 2^nd opposite parties conduct a joint venture company. 3^rd opposite party denied the issuance of Ext. P2 policy to the complainant, thereby the burden is shifted to 2^nd opposite party M/s SBI SPCL. 2^nd opposite party has not filed version denying the allegations raised by the complainant against them. According to 3^rd opposite party for the benefit of its credit card customers, SBI Cards availed group insurance policies covering various customers and remitting premium in respect thereof to the 3^rd opposite party. We cannot overlook the statement made by the 3^rd opposite party in this regard. 3^rd opposite party has not issued the policy to the complainant directly. But Ext. P2 policy is seen issued using the logo of 3^rd opposite party. It should be noted that in the hospital cash insurance schedule, the names of the relatives of the complainant mentioned are against those mentioned in Ext.P7 and P8 documents furnished by the complainant. It is pertinent to point out that complainant has never applied for issuance of Ext. P2 policy nor the same is issued by 3^rd opposite party, thereby the burden is on the part of the 2^nd opposite party to prove whether complainant has availed any such policy through 2^nd opposite party. It is further to be noted that complainant had surrendered the credit card in the year 2005 itself to the 2^nd opposite party. To substantiate the same complainant has led evidence by way of proof affidavit and with Exts. P1 to P9. The case of the complainant is not challenged by 2^nd opposite party nor the complainant has been cross examined by 2^nd opposite party, from which, the very case of the complainant stands uncontroverted, thereby we are of the view that the stand of the complainant that he had surrendered the policy in 2005 to 2^nd opposite party is seemed to be correct. If that be so, the monthly statement dated 23.08.2007 along with a copy of the hospital cash insurance policy of the 3^rd opposite party issued by 2^nd opposite party to the complainant is unethical, unilateral and against facts. 2^nd opposite party has not furnished any material to show that there is outstanding amount of Rs. 8,309/- including payment for the insurance of Rs. 5,788/-. In view of the above, we find the claim of the 2^nd opposite party has no merits at all which deserves to be dismissed. Since the complainant had surrendered the credit card in the year 2005, the issuance of such a statement dated 23.08.2007 along with copy of the hospital cash insurance policy in 2007 would definitely cause mental agony and damage to the complainant. The action of the 2^nd opposite party in issuing a statement after closure of the credit card would definitely amount to unfair trade practice and deficiency in service for which complainant is entitled to get compensation which we fix at Rs. 5,000/-. There is nothing on record to attribute deficiency in service on the part of opposite parties 1 & 3.

In the result, complaint is allowed. 2^nd opposite party is hereby directed to desist from committing unfair trade practice by way of demanding money from the complainant/customer after surrender of his credit card to the opposite party. 2^nd opposite party shall pay the complainant a sum of Rs. 5,000/- towards compensation along with Rs. 1,000/- as costs within two months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of September 2012.

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

Sd/-

S.K. SREELA : MEMBER

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C.C. No. 61/2009

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - T.S. Anil Kumar

II COMPLAINANT'S DOCUMENTS :

P1 - Monthly statement dated 09.09.2007 issued by SBI Card

P1(a) - Monthly statement dated 09.10.2007 issued by SBI Card

P1(b) - Monthly statement dated 09.11.2007 issued by SBI Card

P1(c) - Monthly statement dated 09.12.2007 issued by SBI Card

P1(d) - Monthly statement dated 09.09.2008 issued by SBI Card

P2 - Hospital cash insurance schedule issued by 3^rd opposite party

P3 - Copy of advocate notice addressed to 2^nd opposite party.

P4 - Postal receipt

P5 - Acknowledgement card

P6 - Reply issued by opposite party

P7 - Copy of ration card in the name of Sreelaja. S

P8 - Copy of ration card in the name of C. Somasekharan Nair

P9 - Portion of newspaper advertisement in connection with SBI.

III OPPOSITE PARTY'S WITNESS :

DW1 - T.V. Avinesh Kumar

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT

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