Date of Filing: 23.12.2015 Date of Disposal: 09.01.2023
Complainant : Dipankar Das, S/o Dilip Kumar das, Hatikanda, P.O. – Baneswarpur,
P.S.- Balagarh, Dist. Hooghly, Pin-712515
-VERSUS -
Opposite Party : 1. State Bank of India, rep. by its Br. Manager, Bhaduripara, Kalna
Dist.- Burdwan, Pin-713409.
2. State Bank of India, Burdwan Br., rep. by its Br. Manager, Court
Compound, Burdwan Town, P.O., P.S. & Dist. Burdwan.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
Appeared for the Complainant : Complainant himself
Appeared for the Opposite Party Nos. 1 & 2 : Ld. Advocate Soham Som
FINAL ORDER
On 23.12.2015 the complainant Dipankar Das has lodged a complainant u/S 12 of the C.P. Act, 1986 against the OPs.
On 03.02.2011 the complainant filed a proposal form before OP No.1 and on 17.02.2011 the OP No.1 sanctioned the house building loan of Rs.8,12,500/- in favour of the complainant. And at the time of sanctioning the said loan, the complainant and OP No. l entered into an agreement and rate of interest was determined 8.75% for the first year and rate of interest of 9.50% was determined for the second and third year and after completion of said three years the rate of interest was floating as per card rate. The OP No.1 was also issued a Standard Fire and Special Perils policy (single premium policy) under the New India Assurance Company Limited in respect of the house being Policy No. 51250211110100000720 valid from 30.08.2011 to 29.08.2026. The premium amount of the said policy was Rs.4, 878/- which was deducted on 19.08.2011 from loan account. In the month of November 2013, after going through the loan statement it was detected that the OP No.1 charged more interest and/or charged the rate of interest for several times without giving him any intimation and charged rate have been mentioned in the para 2 of the complaint. Thereafter the complainant submitted a letter dt. 21.11.2013 before the OP No.1 requesting them to take necessary step to solve the dispute, but the OP No.1 did not take any step. On 26.02.2014 again he requested the OP No.1 to solve the dispute by mail as per advice received from the on-line contact center of S.B.I. Thereafter he lodged a complaint on 11.05.2014 vide on line system of the OPs, but the OP No.1 did not take any step. Again he made an e-mail on 22.05.2014 requesting the OP No.1 for taking necessary step to re-calculate the interest and for correction of the address for insurer mentioned in the policy paper. He also raised objection against the amount of Rs.5, 152/- debited by the OP No.1 on 23.04.2014 as insurance premium without taking any permission or giving any intimation to the complainant but he did not take any step. The complainant again sends an e-mail to the Network Nodal Officer and Principal Nodal Officer of OP No.1 on 01.07.2014 and on 29.07.2014. On 30.07.2014 he got an e-mail from OP No.1 and came to learn that OP No.1 will refund the excess amount and will solve the problem shortly but did not do it. The complainant again sent an e-mail to the Network Nodal Officer, Principal Nodal Officer, Chairman Customer Care of OP No.1 and on 19.08.2014 and 21.08.2014 requesting them to solve the dispute as early as possible but they did not take any step. Thereafter for several times, he, by going to the Office of the OP No.1 as well as by sending e-mails, requested them to solve the dispute but OP No.1 did not pay any heed to his request. Then the complainant filed an online complaint before the Banking Ombudsman on 12.01.2015 and said authority lodged a complaint vide complaint bearing No. 201415005003083. After getting the judgment/information from the Banking Ombudsman the OP No.1 refunded Rs.31,833/- on 19.02.2015 without providing any authenticated corrected statement or calculation sheet and intimated him Rs.5,006/- already refunded on 30.09.2014 after deduction policy cancellation charge in respect of Rs.5,152/- deducted on 23.04.2014 as premium of insurance and seeking satisfaction letter from the complainant. But the complainant denied to submit the satisfaction letter by informing that he is entitled to get more amount. Then OP No.1 intimated him to submit calculation sheet and he submitted the same on 23.02.2015 by demanding Rs.37,242/- for the period from 17.02.11 to 16.02.2014. On 27.02.2015 the complainant got an e-mail from the Banking Ombudsman that the complaint No. 201415005003083 got disposed under complaint settled. Complainant advised proposed closer 11(1) without obtaining any satisfaction letter from the complainant. On responding this information he sent a letter of unsatisfactory/objection of the Banking Ombudsman vide e-mail by mentioning that refunded amount not equal to sum which is deducted by OP No.1 and he was not satisfied on the action taken by OP No.1 and requested the Banking Ombudsman to take necessary action so that he can get justice. On 18.03.2015 he got information from OP No.1 vide their mail that Rs.5,409/- as difference interest amount for the period from 17.02.2011 to 16.02.2014 and Rs.410/- as difference amount of insurance premium and interest of Rs.5,152/- for the period from 23.04.2014 to 29.09.2014 has also been credited to your complainant’s loan account on 18.03.2015 and also informed that the address will be amended soon. Moreover the OP No.1 did not pay any amount towards interest of Rs.37,242/- between the 17.02.2014 to 18.03.2015 and compensation. As the complainant vide his mail dt. 16.04.2015, 29.04.2014 and 30.05.2015 intimated about the same to the Banking Ombudsman but no relief has been got by your complainant till date. The OP No.1 also not charged rate of interest as per card rate for the 4th year onwards.
It is further stated that he is a bona-fide customer of the OP and he never done any act detrimental to the interest of the OP. In spite of it, he charged more interest by violating the agreement entered in between them. And he also not refunded any amount towards interest of Rs.37,242/-.
The Cause of Action lastly arose on 18.02.2015. By this act, the OPs have deficiency in service and unfair trade practice for which they are liable to compensate your complainant.
Upon this back ground, the complainant prayed for directing the OPs to pay Rs.24,181/- as refund of excess interest deducted from 17.02.2014 to 30.11.2015 from the loan account along with interest at the rate of 18% p.a. from the date of 17.02.2011 to till date of realization. He further prayed for a direction be given to the OP to make correction of address of the complainant in the Insurance Policy. And handover the corrected loan statement along with a direction to the OP to claim interest as per agreement and compensation of Rs.50, 000/- towards mental pain and agony and litigation cost.
The OP Nos. 1 & 2 have contested the case by filing Written Version jointly denying all the material allegations contending inter alia that the complainant has no cause of action to file the complaint. And that the complaint is not maintainable and that it is barred by limitation and that the complaint is suffered from mis-joinder and non-joinder of necessary parties. It has been further stated by the OP No.1 & 2 that being intimated by the complainant regarding irregularity in the matter of interest the Bank authority verbally assured him that the matter will be solved. The name and address was written in the insurance policy papers application form of the complaint, if the complainant wants to rectify the said address he has to make the application before the concerned insurance office. The complainant has not given suitable time to solve the irregularities in the matter of calculation of interest and to make compliance report to him. He lodged the complaint regarding the matter in dispute before the Bank Ombudsman and Ombudsman proceeded the matter directing the OP Bank to return the interest amounting to Rs. 31,833/- to the account of the complainant. The complainant did not prefer any appeal against the order of the Banking Ombudsman before the proper authorities within one month from the date of acceptance of the said amount. This act of the complainant shows that the complainant has accepted the award of the Ombudsman. The complainant thereafter issued a vague unsatisfactory letter with an intension not to close the case. The Banking Ombudsman asked the parties to submit through respective calculation sheet and thereafter obtaining such calculation sheet and comparing such calculation sheet submitted by the parties the Banking Ombudsman passed an award directing the OPs his satisfaction letter before the Banking Ombudsman and then the case was disposed of under complaint settled complainant advised of proposed closer 11(1) which is totally suppressed by the complainant to misguide the Ld. Forum. In the arrangement letter it is clearly mentioned that 2% amount will be spread as per interest rate card throughout the loan tenure except first three years that means 2% excess interest will be charged above the SBAR throughout the loan tenure except first 3 years which is accepted by the complainant and the bank has done the same from the period 17.02.2014 to till date and no excess interest has been charged by them in the said period. So there is no question to refund any amount towards interest of Rs. 37,242/- for the period from 17.02.2014 to till date and the OP Nos. 1 & 2 have no liability to change the address of the complainant’s insurance policy paper. However the OPs have taken steps in that regard to give relief to the complainant.
Upon this back ground, the OP Nos. 1 & 2 claimed for dismissal of the case with cost.
Decision with reason
In order to prove the case, the complainant has filed Xerox copies of several documents including loan application, complaint lodged before the Banking Ombudsman, copy of the decision made by the Ombudsman, Card rate, Loan account statement etc. and also he has filed evidence on affidavit. But on the other hand, the OP Nos. 1 & 2 have relied upon the contents of their written version and also Xerox copies of documents on which, the complainant has filed. OP Nos. 1 & 2 also filed written notes of arguments.
This Ld. Commission on 28.09.2016, after going through both oral and documentary evidence, was pleased to dismiss the case on contest against the OPs without any cost.
Against the said judgment, the complainant went on appeal before the Hon’ble State Consumer Dispute Redressal Commission, West Bengal, Kolkata and the Hon’ble State Consumer Dispute Redressal Commission, West Bengal also made observation that “In fact, vide its communiqué dt. 03.11.2016 the RBI intimated the Appellant that, in case the Appellant was not satisfied with the decision of the Banking Ombudsman, he was free to approach any other authority under the law for redressal of his grievance. In view of this, there is no reason to believe that the matter still remains pending with the Banking Ombudsman. Therefore, we deem it appropriate to remand the case to the Ld. District Forum for disposing the case on its merit. The impugned order is hereby set aside”.
In view of the above order of the Hon’ble State Consumer Dispute Redressal Commission, West Bengal, Kolkata, this case is being thus disposed of.
We carefully have gone through the documents and the pleadings of both sides. It is admitted that the complainant took a house building loan amounting to Rs. 8,12,500/- and an agreement was executed in between the parties wherein the complainant has liability to repay the loan amount with its interest at the rate of 8.75% for the first year and at the rate of 9.50% for the second and third year. In view of the said agreement the complainant has also liable to repay the outstanding balance of the loan amount with floating rate of interest and thereafter by installments. Admittedly, at the time of sanctioning the loan the OP No.1 issued a Standard Fire and Special Perils policy (single premium policy) of The New India Assurance Com. Ltd. in respect of the house building in the Insurance policy mentioned valid for the period from 30.08.2011 to 29.08.2026 and there was one time premium of Rs. 4,878/- of said Insurance policy. The OP deducted said premium amount on 19.08.2011 from the loan amount of the complainant. In the complaint the complainant has brought an allegation to the effect that the OP with ill-intension and applying unfair trade practice charged interest more than the rate as mentioned in the agreement and the OPs also have deducted illegally Rs. 5,152/- from the loan account as insurance premium for the second time on 23.04.2014. For rectification of the such irregularities caused by the OPs, the complainant made several correspondences by writing letters, sending e-mails etc. but no effect. The specific case of the complainant has not been admitted by the OPs.
Further the complainant has stated that the OPs did not take any steps to go with relief to him in the matter as mentioned above. He lodged a complaint before the Banking Ombudsman on 12.01.2015 and the said complaint was registered as complaint No. 201415005003083. On the basis of the said complaint the Banking Ombudsman delivered a judgment directing the OPs to settle the dispute and OP No.1 refunded Rs. 31,831/- on 19.02.2015 and intimated the same without sending any correct authenticated statement or calculation sheet to the complainant and the OP No.1 intimated the complainant that the OP No.1 has refunded Rs. 5,006/- on 30.09.2014 after deducting the policy cancellation charge in respect of Rs. 5,152/- which was deducted due to mistake by the OP No.1 as insurance premium for the second time. The complainant has further stated that being dissatisfied with such acts of the OPs the complainant made objection before the Banking Ombudsman and being directed the complainant submitted his calculation sheet. It is the case of the OPs that on the basis of the calculation sheet the OPs again refunded Rs. 5,409/- as difference of the claim amount of the complainant and also the OPs have refunded Rs.410/- as difference amount of such insurance premium and interest of Rs. 5,152/- for the period from 23.04.2014 to 29.09.2014. Regarding these refunds by the OPs the complainant has raised no objection but the complainant has brought a specific case stating that the OP No.1 has not paid any amount as interest on Rs. 37,242/- deducted as excess amount of interest for the period from 17.02.2014 to 18.03.2015. The complainant further stated that claiming such interest on Rs. 37,242/- he made an objection before the Banking Ombudsman but no relief has yet been received by him.
From the case of the complainant, it is clear that the complainant before institution of this case, made a complaint with the allegations against the OPs before the Banking Ombudsman and the Banking Ombudsman on the basis of this complaint took necessary steps to give necessary relief to the complainant and also of the direction of the Banking Ombudsman the OPs has refunded amount as per calculation sheet submitted by the complainant. In the complaint the complainant has stated that the OPs have not paid the interest on Rs. 37,242/- and as such he being dissatisfied with such acts of the OPs, has made further allegation against the OPs before the Banking Ombudsman and the said matter was placed before the Banking Ombudsman for disposal and the Banking Ombudsman has taken steps to dispose of the matter. It also appears that the major part of the claim of the complainant has been disposed of before the Banking Ombudsman and the claim of interest on Rs. 37,242/- was pending before the Banking Ombudsman. The Banking Ombudsman disposed of the complaint and complainant received the said award and settled the dispute without obtaining any satisfaction letter from the complainant. And the complainant responding the said information sent a letter of unsatisfactory and the objection to the Banking Ombudsman mentioning the refunded amount not equal to sum which was deducted by OP No.1 and the complainant was not satisfied with the action taken by the OP No.1 and requested the Banking Ombudsman to take necessary action so that he can get justice. The OPs have submitted that the complainant received the said award under full satisfaction and for that reason the said case was closed under settled closer by the Ld. Banking Ombudsman and the complainant has not raised any objection before the RBI either before receiving the awarded amount at his account or within 30 days after pronouncing the award by the Ld. Banking Ombudsman. And as such it is well established that the complainant was fully agreed with the award of the Ld. Banking Ombudsman and thereafter to obtain some undue gain, complainant has filed this case. Ld. Advocate for the OP further argued that this case suffered from double jeopardy and barred res-judicata and this Commission on dismissing the case on contest upon considering this settled Principle of Law on the ground that as the complainant has accepted the award of the Banking Ombudsman, he cannot lodge the same before another Forum.
On an appeal, the said order passed by this Commission, is set aside by the Hon’ble State Consumer Dispute Redressal Commission West Bengal in First Appeal No. A/1250/2016 on the ground that the complainant sent several e-mails to the Banking Ombudsman alleging inadequate settlement of his grievances but no such documents are forthcoming wherefrom it can be ascertained that the matter still remains under active consideration of the Banking Ombudsman. And in view of letter dt. 03.11.2016, the RBI intimated that Appellant (complainant) that, in case the Appellant (complainant) was not satisfied with the decision of Banking Ombudsman, he was free to approach any other authority under the law for redressal of his grievance. But at present no such matter is still remains under the active consideration of the Banking Ombudsman and both the sides agreed that the matter in dispute before Banking Ombudsman have been disposed of but the crucial point in dispute is that the complainant submitted that award was not under full satisfaction of the complainant and he sent objection against the said award but the OP submitted that indirectly the complainant is accepted the award passed by the Banking Ombudsman. As the OP No.1 bank ultimately refunded a sum of Rs. 31,833/- on 19.02.2015 as per calculation sheet submitted by the complainant and subsequently Rs. 5,006/- has already been refunded on 30.09.2014 after deduction of policy cancellation charge in respect of Rs. 5,152/- and refunded Rs. 410/- as difference amount of insurance premium.
From letter dated 24.03.2015 issued by the office of the Banking Ombudsman it appears that the complainant was given an information to the effect that the case of the complainant before Ombudsman was closed and forwarded the reply received from S.B.I. And as per the said award of the Ombudsman the OP has cleared the amount due as interest to the complainant. From the information by e-mail dt. 18.03.2015 to the complainant, that they had paid the amount of interest to the complainant as per award of Ombudsman. From the record it appears that the complaint was lodged on 23.12.2015 and the written complaint disclosed that his mails dt. 16.04.2015, 29.04.2014 & 30.05.2015 intimated about the non-payment of interest of Rs. 37,242/- to the Banking Ombudsman but no relief has been got by the complainant till date. But he was informed on 24.03.2015 that his case was closed before the Ld. Ombudsman and on 18.03.2015 he was also informed that as per award of Ombudsman the due interest was paid to him. The OP submitted that after passing award by the Ombudsman they had already paid the due interest to the complainant as per award of the Ombudsman which has been accepted by him indirectly as no complaint has been made before the OP regarding the payment of the said amount as per award. And in view of the letter dt. 03.11.2016 which has received by the complainant with a note that in case the complainant was not satisfied with Banking Ombudsman he is at liberty to approach any other authority under the Law of Redressal of grievances but before it on 23.12.2015 the complainant has already chosen this Commission to ventilate his grievance with a plea that the complainant intimated his grievance to the effect that OP No.1 did not pay amount of interest of Rs. 37,242/- between the 17.02.2014 to 18.03.2015 and compensation vide his mails dt. 16.04.2015, 29.04.2014 and 30.05.2015 intimated about the same to the Banking Ombudsman but no relief has been got by the complainant till date. But it is clear from the letters issued by the Ombudsman and mail by the OPs to the complainant that his case was closed by giving award and the OP S.B.I. has already paid the due interest as per award of Ombudsman. In the present scenario, before receiving of the letter dt. 03.11.2016 to the effect that in case the complainant is not satisfied with Banking Ombudsman’s decision he is at liberty to approach any other authority under the Law of Redressal of grievances, he has already filed the case on 23.12.2015. Therefore it is clear that the complainant prior to order of the Ombudsman he has ventilated his grievance before the Ld. Forum and this letter issued by the R.B.I. has no bearing at all in this case because of filing this case long before receiving the said letter. The Hon’ble High Court at Bombay made observation in Kalyani Avinash Gokhale & Ors. Vs. United India Insurance Company Ltd. and another case that the mechanism of the Ombudsman is a purely voluntary process and the binding character of the recommendation or as the case may be, of an award of the Ombudsman arises only when the complainant has accepted the decision. In this case the complainant has raised no objection in respect of the decision regarding refund of the premium amount of Rs. 5,152/- deducted for the second time by the OPs and regarding refund of the amount of Rs. 37,242/- which was deducted as excess interest by the OPs. So it is clear that the complainant has accepted the decision which has already been made by the Banking Ombudsman. The Hon’ble State Commission did not interfere with the finding of the judgment dt. 28.09.2016 passed by this Ld. Forum except in respect of the issuance of letter by the R.B.I. on 23.11.2016 which have already been discussed. In view of the letter dt. 24.03.2015 issued by the Banking Ombudsman the case has been closed before the Banking Ombudsman.
Under the above circumstances, we are fully in agreement with the submission of the Ld. Advocate for the OPs that it is well established that the complainant was fully agreed with the award of the Ld. Banking Ombudsman.
Under the above facts and circumstances and the foregoing discussions, we are of the opinion that the complainant has failed to establish his case against the OPs.
Hence it is
Ordered
That the case be and the same is dismissed on contest against the OPs, but without any cost. Let a copy of this Order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
