DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 26^th day of July 2023

C.C.109/2022

Complainant

Beena.K.C

Orchid house,

Sixth Mile, Keezhmad Road,

Velliparamba(P.O), Medical College,

Kozhikode – 673 008.

(By Adv.Sri.Pavithran.K)

Opposite Parties

1. Suraj Rajendrababu

         Senior Area Manager,

         Debt Management Services, Sal flow-collection,

         Bajaj Finance Ltd, Blue star arcade,

         Manjalikulam Road, Thampanoor,

        Thiruvananthapuram – 695 001.

Suppl. 2 – The Manager

          Bajaj Finserv Office,

          Marina Tower, Near English Church,

          Nadakkavu,

          Calicut – 673 011.

Suppl. 3 – Mr. Arun Menon

          Bajaja Finserv Office,

          Marina Tower, Near English Church,

          Nadakkavu,

          Calicut – 673 011.

 (Suppl. 2 and 3 impleaded as per order dated 01/09/2022 IA No.190/2022)

ORDER

By Sri. P.C. PAULACHEN – PRESIDENT 

           This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2.  The case of the complainant, in brief, is as follows:

The complainant had applied for a personal loan of Rs.1,00,000/- from the opposite parties.  The sales representative of BAJAJ FINSERV Sri. Arun Menon told the complainant that she was eligible for Rs.4,00,000/- and since the loan granted is a personal flexi loan, she could request for the remaining amount, if she needed, through a login ID created for her by the company.  The interest rate was 16 % p.a.  The EMI for repayment was for 5 years starting from 5/5/2017 to 5/5/2022.  On 5/5/2017 the complainant had to pay Rs.7,367/- as the first EMI and from 5/6/2017 to 5/4/2022 she had to pay Rs.5,667/- as EMI for a loan amount of Rs.4,25,000/-.  On 25/3/2017 she received the pricing details in which it was indicated that the loan amount was Rs.4,00,000/-.  On 27/3/2017 the loan details received through email showed an enhanced loan amount of Rs.4,25,000/-.  On 28/3/2017 the complainant received an email regarding login ID created for requesting/repayment of the amount she needed.  On the same day, an amount of Rs.3,88,626/- was credited to her SB A/c.  On 29/3/2017 as per the welcome letter received through email, the loan amount was given as Rs.4,25,000/-, interest rate 16% and processing fee Rs.9,775/-.  On 31/3/2017 the financial fitness report was received.  On 4/5/2017 the complainant received a letter from the opposite parties asking her to login to their website to refund the unwanted/unsused amount Rs.2,88,626/- to the company.  But the website showed error, when she tried to login.  Though she contacted Sri.Arun Menon, he did not respond.  On 6/4/2022 an overdue intimation was received from the opposite parties stating that bullet EMI of Rs.4,30,667/- got bounced on 5/4/2022.  On 20/4/2022 the complainant had to pay Rs.4,35,000/- to BAJAJ FINSERV to close the loan account.  She had suffered huge monetary loss due to the negligence of the opposite parties and she was compelled to pay interest for an amount of Rs.4,25,000/-.  The loan amount she requested was only Rs.1,00,000/-, but the loan given was Rs.4,25,000/- .  The excess payment done was Rs.2,55,000/- and interest was Rs.2,29,500/-.  Thus the complainant had to suffer a monetary loss of Rs.4,84,500/-.  Besides, she had to undergo mental agony.  Hence the complaint claiming compensation of Rs.5,00,000/- from the opposite parties.

3. The supplemental opposite parties 2 and 3 were impleaded as per order dated 01-09-2022 in IA No.190/2022.

4. All the opposite parties were set ex-parte. Petition filed as IA No.29/2023 to set aside the ex-parte order and to receive the written version was dismissed by this Commission as per Order dated 19/6/2023.

5. The points that arise for determination in this complaint are :

1. Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?
2. Reliefs and costs.

6. The complainant was examined as PW1 and Exts A1 to A13 were marked.

7. Heard.

8. Point No.1– The complainant has approached this Commission alleging deficiency of service and unfair trade practice on the part of the opposite parties. The specific allegation is that due to the negligence and deficiency of service of the opposite parties, the complainant had to suffer monetary loss to the tune of Rs.4,84,500/-, besides being put to intense mental agony.   The claim for compensation is Rs.5,00,000/-.

9. PW1 has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the email communication dated 22/3/2017, Ext.A2 is the copy of smart statement of BAJAJ FINSERVE, Ext.A3 is the copy of the email, Ext A4 is the payment advice, Ext A5 is the copy of the agreement dated 20/3/2017, Ext A6 is the copy of the letter of continuity of demand promissory note, Ext A7 is the copy of the email, Ext A8 is the copy of the statement of account, Ext A9 is the copy of the no due certificate dated 21/4/2022,  Ext A10 is the list of dates and events, Ext A11 is the overdue intimation, Ext A12 is the copy of the loan details and Ext A13 is the copy of the reply notice dated 18/4/2022.

10. It is well settled that in a consumer case, the onus to prove deficiency of service is on the complainant and without proof of deficiency, the opposite party cannot be held liable.  In the instant case, the main allegation of the complainant is that she had applied for a personal loan of Rs.1,00,000/- from the opposite parties whereas she was seen granted a loan of Rs.4,25,000/-.  To decide the dispute, the best evidence is the loan application.  But the copy of the loan application is not brought in evidence by the complainant.  Ext A1 email does not speak about the loan amount applied for.  In this context, Ext A5 loan agreement which was executed prior to the sanctioning of the loan, assumes importance.  The complainant has not disputed Ext A5 which is produced by her.  It is seen signed by the complainant.  The recitals in Ext A5 show that the loan amount is Rs.4,25,000/.  The rate of interest was 16% p.a.  Loan tenor (months) was 60.  The fee and charges including insurance and repayment dates, full pre-payment charges, part pre- payment charges and other terms and conditions are clearly and specifically stated in Ext A5.  The complainant has no dispute with regard to the contents of Ext A5.  She has no case that Ext A5 is vitiated by any vitiating elements like misrepresentation, coercion, fraud, undue influence etc.  The complainant who has executed Ext A5 is not an illiterate.  According to the complainant, she is the Audit Officer of the Kerala State Audit Department.  The case of the complainant that the loan applied for by her is for Rs.1,00,000/- only is not supported by any documentary evidence.  On the other hand, Ext A5 would prove that the loan amount was Rs.4,25,000/-.

11. The complainant has no case that she had approached any authorities against the opposite parties for sanctioning a higher amount as loan against her wish.  It is also seen that she has not registered any protest against the opposite parties as well.  Another aspect is to be noted that the loan was sanctioned in the year 2017 and the complainant was silent all these years.   It is also pertinent to note that the complainant has no case that she did not utilize the whole loan amount sanctioned by the opposite party.  All these circumstances go against the complainant.  Having agreed to the terms and conditions of the loan as per Ext A5 and utilizing the entire loan amount, the complainant cannot now turn around and say that she was sanctioned a higher amount of loan than what she had applied  for. 

12. The contention of the complainant is that she was facing problem in refunding the additional amount of Rs.2,88,626/- as the website showed error when she tried to login.  Even if it is taken that the website showed error as alleged, the complainant could have very well approached the opposite parties directly and refunded the amount.  If she was facing any problem in refunding the amount, as a prudent lady, she should have directly approached the opposite parties.

13. As we have already stated, Ext A5 loan agreement executed by the complainant contains all the terms and conditions in detail.  There is nothing to indicate that the opposite parties have acted against the terms and conditions in Ext A5 and extracted any amount illegally by way of interest and incidental and processing charges, contrary to the terms and conditions of the loan agreement.  After having availed and enjoyed the entire loan amount as per the terms and conditions in Ext A5, the complainant cannot now be heard to say that she did not apply for that much amount as loan and by sanctioning a higher amount she had to pay interest.  That being so, no deficiency of service or unfair trade practice can be attributed against the opposite parties.

14. It is true that the opposite parties were set ex-parte.  But the mere fact that the opposite parties remained ex-parte does not automatically entitles the complainant to get an order as prayed for.  It is for the complainant to prove his allegation.

15. From the above discussion, what emerges is that there is no proof of any deficiency of service or unfair trade practice on the part of the opposite parties and consequently the complaint must fail.

16. Point No.2 :  In view of the finding on the above point, the complainant is not eligible to claim and get any relief.

In the result, the complaint is dismissed.However, no order as to costs.

Pronounced in open Commission on this the 26^thday of July 2023.

Date of Filing: 25-04-2022.

                            Sd/-                                                                                                  Sd/-

                    PRESIDENT                                                                                    MEMBER

Exhibits for the Complainant :

Ext A1 - Copy of the email communication dated 22/3/2017.

Ext.A2 - Copy of smart statement of BAJAJ FINSERVE.

Ext.A3 - Copy of the email, Ext A4 is the payment advice.

Ext A5 - Copy of the agreement dated 20/3/2017

Ext A6 - Copy of the letter of continuity of demand promissory note.

Ext A7 - Copy of the email.

Ext A8 - Copy of the statement of account.

Ext A9 - Copy of the no due certificate dated 21/4/2022.

Ext A10 - List of dates and events.

Ext A11 - Overdue intimation.

Ext A12 - Copy of the loan details.

Ext A13 - Copy of the reply notice dated 18/4/2022.

Exhibits for the Opposite Parties:

Nil

Witnesses for the Complainant:

PW1 -Beena.K.C (Complainant) .

Witnesses for the opposite parties:

Nil

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