Complaint filed on: 28-12-2011
Disposed on: 03-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2373/2011
DATED THIS THE 3rd SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Nandi Dinesh
W/o. Dinesh
A4, 107, Netravathi Block,
National Games Village,
Koramangala
Banalore-47
V/s
Opposite party: -
The Axis Bank,
Cox town, 56, Minuth Crescent,
Coles Road, Frazer town,
Bangalore -05
Reptd by Manager
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to restore the fixed deposit, reduce the interest and other charges dues to the complainant in respect of credit card, and award a consolidated vindictive compensation of Rs.2.5 lakhs alongwith 18% interest per annum and cost.
2. The brief facts of the complaint can be stated as under.
The complainant is the holder of a saving bank account with the OP bearing SB account no.231010100030083. In August 2009, the OP allowed the complainant credit card facility having limit of Rs.20,000=00 and in July 2010 the complainant used the card to purchase some things and incurred liability of Rs.18,758=00, and in August 2010 the complainant purchased some things and liability got increased to Rs.19,758=00, and in the month of August 2010, the complainant paid Rs.2,000=00 towards the liability vide cheque. In the month of August, the complainant’s right hand became weak and could not write or move her hand, because of this, the complainant could not sign the cheque or do anything with her hand and due to this difficulty, the complainant authorized a friend of hers to deposit a cheque in payment of Rs.2,000=00 through the Sky park clearing process. In the September, the complainant requested the OP’s customer service to allow installment payment of the dues and she was informed that the installment payment was allowed. On 10th November, the complainant called the customer service personnel at Bangalore branch, who told her to call the number 65398483, and the complainant called the number and she was informed that there is a dues of Rs.25,685=00 for using the credit card. On 25th the complainant called the Mumbai office of OP and enquired about her problem and she was informed to go to the manager of the bank and make discussion, the complainant went to the bank and when she talked with the manger, he informed that the dues has been paid in cash. The manger checked the matter and informed that the amount has been realized from the complainant fixed deposit of Rs.25,000=00 with the bank. She was astonished and asked the manager, how they could do this without even sending a notice to her or informing her, she also protested to the bank manager that the time limit for exhausting the dues on credit card is 90 days and 90 days has not at all informed in her case, the complainant informed the manager that lady at the customer service has told her specifically that the complainant was allowed installment payment of her dues on credit card and she has paid the first installment by cheque for Rs.2,000=00 in August 2010. The manager informed the complainant that she should sign in some papers accepting the illegal acts done by the bank and ratifying the same, the complainant refused, the manager told that the complainant has a balance of Rs.580=00 from the fixed deposit and she should sign a receipt and get it from the bank. The complainant smelt rat and refused to accept the Rs.580=00 after giving the bank receipt. The bank who is the trustee of the customer’s money has cheated the complainant and unauthorizedly deducted the dues on complainant’s credit card from her fixed deposit. The OP has done this without even giving notice to the complainant, moreover, the OP has charged exorbitant interest on complainant’s dues and appropriated the same unauthorizedly from the fixed deposit. The complainant had kept the fixed deposit money for emergencies to meet medical bills for treatment of ailments unexpectedly ensuing. On deciding to rely on the fixed deposit for treating, the complainant paralyzed hand, the complainant was disappointed and whatever done by the OP has been done unauthorizedly. The complainant is a mental wreck because of OP’s illegal acts. The complainant has suffered great agony and pain enduring OP’s malpractices. The complainant sent a number of complaints and notices to the OP through emails, but they have not cared to redress the complainant grievances. Inspite of all here strenuous efforts many of complainants relatives refused to lend money and it was with great efforts that the complainant borrowed money from her father for treatment. The difficulties, anxiety, mental agony and distress undergone by the complainant can not be explained nor quantified in terms of money. All this ensued only because of the malpractices of the OP, the acts of the OP is very bad service and intolerable and grossly illegal, the complainant’s suffering cannot be quantified in terms of money nor can it be mitigated by compensation. Hence, the present complaint is filed.
3. After service of notice, the OP has appeared through its counsel and filed objection, contending interalia as under.
At the outset, the OP bank denies each and every allegation, contention and statement made by the complainant in the complaint. The complainant has suppressed material facts from this forum which even disentitles the complainant to invoke the jurisdiction of the forum. The complainant does not come with the definition of consumer, so, the complaint of the complainant is not sustainable. The OP bank issued the easy credit card being card no.4074390300189360 as requested in the month of August 2009 secured against fixed deposit of Rs.25,000=00 maintained by the complainant with the OP bank, the said credit card was issued to the complainant by marking lien on the fixed deposit. The complainant has given a lien letter to the OP bank at the time of application for the credit card. The complainant started using the said credit card and as per the statement for August 2010 the liability of the complainant towards the bank for the usage of credit card was Rs.18,758=00 and the same had to be settled on or before 30-8-2010. The complainant contention of payment of Rs.2,000=00 towards the settlement of credit card is not tenable since the complainant has defaulted in payment of her credit card dues from August 2010 till date. The complainant’s contention of speaking to the branch manager regarding the settlement of credit card dues in the month of August 2010 is not tenable as branch manager has not met her nor she visited the branch during the said period. The complainant contention of signing papers given to her by the branch manager is totally false and not tenable as the complainant was not asked to sign any papers regarding the credit card settlement. The complainant’s allegation of not giving notice for pre closure of fixed deposit with the bank is not tenable. At the time of request of application for credit card the complainant has signed lien letter authorizing the bank on her behalf to preclose the fixed deposit towards appropriation of credit card dues if any over and above the period of 90 days over and above the due date for settlement of credit card dues. Hence the question of sending a notice or informing the complainant does not arise at all. The complainant has the knowledge of the same as she has only given the authority to the OP bank. The OP’s action of adjusting the fixed deposit maintained with the bank towards the security for credit card dues is fully justified and it is as per contract and the action of this OP is legal and justifiable. The bank is therefore not liable to refund any amount with compensation as prayed in the complaint. The complainant’s contention of charging exorbitant interest on her credit dues is not tenable as it is in line with her agreement and upto the terms and conditions of credit card agreement executed. The complainant’s agony and pain of mental wreck and bank’s illegal acts paralyzing her hand is her creation and it is an intention of defaulting the bank for her commitments. Hence, the bank cannot be party to her self proclaimed agony and pain. Hence restoration of fixed deposit pre closed towards the settlement of credit card dues is as per the agreement and as per the authority given by the complainant in her original application for issuance of credit card. Hence, the bank is not at fault, and as the fixed deposit pre closure is in line with the agreement executed by the complainant, compensation of Rs.2.5 lakhs along with 18% interest per annum claimed by complainant is void and hence the bank has every authority in claiming the compensation from the complainant alongwith interest as the bank is at loss and out of funds from August 2010 onwards on account of non payment of credit card bills. The complainant has not come with clean hands and there is no deficiency on the part of the OP and this OP is not liable to make any payment to the complainant. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the act of the OP is very bad service, and is intolerable and grossly illegal, and there is deficiency of service on the part of the OP?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced three documents. On the other hand, one Srikanth Pabbathi, Vice-President and GPA holder of the OP has filed his affidavit by way of evidence on behalf of the OP and produced four documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of the both parties meticulously.
7. One Nandi Dinesh, who being the complainant has stated in her affidavit that, she is the holder of a saving bank account no.231010100030083, and during August 2009, the OP allowed the facility of a credit card to her having limit of Rs.20,000=00 and in the month of July 2010, she used the card to purchase some things and incurred a liability of Rs.18,758=00, and in the month of August 2010, she purchased some things and liability increased to the sum of Rs.19,758=00, and in the month of August 2010, she paid Rs.2,000=00 towards the liability vide cheque which deposited in the bank box in accordance with the instruction of the bank manager. Later in the month of August, her right hand became weak due to paralisation and she could not write or move her hand, because of this, she caused to deposit a cheque towards the dues to the bank in the sky park cheque clearing process. Thereafter, she requested the OP manager to allow installment payment of her dues to the bank, the customer service informed her that the request for installment payment by her was allowed. On 10th November, she called the customer service personnel of the OP and that personnel of the OP told her to call nu.65398483 and she called the number and she was informed that there is a dues of Rs.25,685=00. On 25th she called the Mumbai office of the bank and enquired about her problem and told to meet the manager and on meeting she was informed that, it is true that the dues had been allowed to be repaid in installments and the manager checked the matter and informed that the amount has been recovered from fixed deposit of Rs.25,000=00, she was astonished and asked the manager, how they could do this when she was allowed installment payment in the matter and that too without any notice to her. She asked the manager for paying back the dues as her credit card is not over and that it is illegal to realize the dues from her fixed deposit. The manager asked her to sign some papers ratifying and accepting the illegal acts of the bank. She refused and the manager then asked her to sign a receipt to get the balance amount of Rs.580=00, she refused and the bank manager again asked her to sign a blank receipt, she totally refused. The bank has committed breach of trust and cheated her by appropriating money from her fixed deposit towards dues on credit card after allowing her to pay the same by installments. She had kept the fixed deposit for emergencies to meet medical bills for treatments. On deciding to rely on the fixed deposit for treating her hand, the complainant was disappointed and whatever done by the OP has been done unauthorizedly. She was having mental pain and agony and sent emails for getting her grievance redressed, but the OP did not even care to send a reply. She had begged and borrowed from her relatives for treatment of her paralyzed hand. She is a consumer under CP Act, and email sent by the OP is produced and marked as Ex.A1 and A1a, the print out copy of the email sent by her is marked as Ex-A2, the bank email is also produced alongwith complaint, it is marked as Ex-A3. So, she prayed to allow the complaint as prayed for.
8. By reading the averment of complaint and evidence of complainant as mentioned supra, it is made clear that, the complainant has tendered her evidence in accordance with the averment of complaint. Now, we have to make scrutiny of the documents of the complainant, to know whether the oral testimony of the complainant is supported by the documentary evidence or not. Document no.1 of the complainant is the copy of email letter sent by the customer care service addressed to the complainant informing that, they are unable to inform her about the fixed deposit, and below of that letter, the complainant’s message in the form of complaint to the customer services of Axis bank is found, wherein she requested the bank to restore the fixed deposit, reduce the interest and other charges to pay her dues on credit card by installment. The last document of complainant is the copy of complaint forwarded to the customer care services of the bank.
9. By making scrutiny of documents of the complainant, it is made clear that, the complainant has not produced any documentary evidence to show that, she was allowed installment to pay the credit card dues. The oral testimony of the complainant that, she was allowed installment by customer care services of the bank to pay the credit card dues is not supported by any documentary evidence.
10. At this stage, we would like to have a glance at the oral and documentary evidence of the OP. One Srikanth Pabbathi, Vice-President and GPA holder of the OP bank has stated in his affidavit that, the complainant requested to issue the credit card, and accordingly, the OP has issued the credit card as requested in the month of August 2009 secured against the fixed deposit of Rs.25,000=00 maintained by the complainant with OP bank. The said credit card was issued to the complainant by marking lien on the fixed deposit and she has given a lien letter to the OP bank at the time of application for the credit card and she has started using the credit cared and as per the statement for the month August 2009, the liability of the complainant towards the bank for the usage of credit card was Rs.18,758=00 as per the complaint, and the same ought to have settled on or before 30-8-2010. The contention of the complainant with regard to the payment of Rs.2,000=00 towards the settlement of credit card dues is not correct, since at the time of request of the complainant for credit card, the complainant has signed lien letter authorizing the bank to preclose the fixed deposit towards appropriation of credit card dues if any over and above the period of 90 days over and the above the dues date for settlement of credit card dues. The complainant has the knowledge of the same as she has only given the authority to the OP bank. The OP bank’s action of adjusting the fixed deposit towards the security for credit card dues is fully justified and it is as per contract. So the bank is not liable to refund any amount, the bank is not at fault and the complainant has not come up with clean hands. The OP is not liable to make any payment to the complainant. So, the present complaint be dismissed.
11. The OP has produced the copy of deposit receipt of Rs.25,000=00 existing in the name of the complainant, wherein it is mentioned clearly as lien to be marked for credit card and one more copy of lien letter dated 4-8-2009 given by the complainant is produced and that letter shows that, the complainant has been awarded the credit card facility having limit of Rs.20,000=00 by secured amount of Rs.25,000=00 as fixed deposit, and the complainant has authorized the bank to appropriate the said fixed deposit amount towards credit card dues, and that letter bears the signature of the complainant. The oral evidence of the Vice-President of OP that, the complainant gave lien letter to appropriate the fixed deposit amount towards the credit card dues, and accordingly, the bank has adjusted the fixed deposit amount of the complainant towards the credit card dues as per contract stands corroborated by the copies of fixed deposit receipt and lien letter given by the complainant in the name of the OP bank. Having once the complainant has given lien letter in the name of the OP bank to adjust the fixed deposit amount towards credit card dues, it does not lies in the month of the complainant to reiterate on surmise and conjecture that, the bank has cheated her by adjusting the fixed deposit amount to credit card arrears.
12. The Oral evidence of the complainant that, the OP bank has acted illegal by adjusting her FD amount to credit card dues is not countenanced by any documentary evidence. Taking the material evidence of the complainant and compare the same with the oral and documentary evidence of the OP, it is ambiguously clear that, the material evidence of the OP is more believable trustworthy and acted upon than the material evidence of the complainant. In fact, the OP bank has acted as per terms and conditions of the contract entered between the complainant and bank and as the complainant did not pay the credit card dues alongwith interest as per the contract. So, the OP has adjusted the fixed deposit amount of the complainant as per her authority letter given in the name of the OP, and there is no negligence or deficiency of service as such on the part of the OP. On the contrary, the complainant has committed default in paying the credit card dues alongwith interest as per the contract. So, in view of giving lien letter by complainant, OP has appropriated the fixed deposit amount of the complainant and adjusted the same to the credit card dues as per the terms and conditions of the contract. Having considered totally of material evidence of both parties, it is made manifest that, the complainant who come to the forum seeking relief has utterly failed to prove this point by placing clear cogent and consistent material evidence, and accordingly, we answer this point in a negative.
13. In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 3rd day of September 2012.
MEMBER MEMBER PRESIDENT
