O R D E R

By Sri. A.S. Subhagan, Member:-

          This is a complaint filed under section 12 of the Consumer Protection Act 1986.

          2. Facts of the case in brief:-   The Complainant  is a firm represented by its Proprietor Mr. George Varghese,  dealing with the sale  of  steel,  hardware and  cement.  The Opposite Party is the Manager of Axis Bank, Sulthan Bathery Branch.  In the month of March 2017,  the    agent   of   the   Opposite Party approached  the Complainant and as a consequence the Complainant availed a POS machine from the Opposite Party,  as a part of its digitalization programme. The POS machine was purchased by the Complainant on the  basis of the assurance given by the Opposite Party that the RTGS service to the Complainant will be free,  no  other charges will be levied for the POS machine etc. The POS machine was availed by the  Complainant firm for the current account No. 917020021537106  maintained by him in Opposite Party’s bank. On the  basis of the assurance given by the Opposite Party,  the Complainant had made several RTGS transfers in the account.  It was found  that the Opposite Party    had   illegally   withdrawn   an amount of Rs.12,000.11 from the Complainant’s account as charges.  When the Complainant became aware of the  illegal withdrawal on 18.09.2017  lodged a complaint before the Opposite Party with demand for refund of the amount so charged  and made  an application for cancellation of service of the POS machine of the Opposite Party.  The act of the Opposite Party was highly unfair trade practice and deficiency in service through which the Opposite Party has gained unlawfully and caused unlawful loss to the Complainant.

          3. Hence the Complainant has approached this Commission lodging  this complaint with the following  prayers to direct the Opposite Party.

1. To refund Rs.12,348/-  and Rs.1,965/-  as the charges collected by the Opposite Party with interest at the  rate of 12% from the  date of collection of the money.
2. To pay Rs.10,000/-  as compensation.
3. To pay Rs.5,000/-  as cost of the  complaint and legal notice.
4. To grant any other relief that the Commission deems fit.

4. The  Commission    registered   a case and   notices were issued to the

Complainant and the Opposite Party.  The Opposite Party entered  appearance and detailed version was filed.  According to  the Opposite Party he had not approached the Complainant but it was the Complainant who had approached the Opposite Party in part of digitalization programme.  In  fact the POS machine was allotted by the Opposite Party on the request of the Complainant.  The Opposite party admits that the Opposite Party had assured that the RTGS service  would be free and no other charges would be taken for the POS machine.  The Opposite Party contents that he has not charged  any amount for the RTGS service.  The allegation of the Complainant that the Opposite Party has charged for RTGS service is false and as per the agreed terms and conditions,  the Opposite Party has charged an amount of Rs.750/-  and GST towards the yearly rent of the POS machine  and has not charged any additional amount as service charge. 

          5. The complainant  had opened an account under CAPHM scheme whereby he had to maintain a minimum average monthly balance of Rs.25,000/-  and could  deposit amount in this account 12 times of the minimum ie,  25,000x12=3,00,000.    If this amount exceeds the limit of average minimum,  an amount  of Rs.3 per thousand will be charged as per the terms and  conditions of the account.  Moreover,   an amount of Rs.1,500/-  would be charged if the minimum average amount of Rs.25,000/- is not maintained monthly.   The Complainant was not regular in maintaining the minimum average amount and had been depositing  amounts more than the allowed 12 times than the minimum balance.  Although the Complainant was informed many times of these irregularities,   he was neither keeping the minimum monthly average of Rs.25,000/-   nor  depositing  the amount as per the allowable multiples.   So charges were levied for not keeping minimum average monthly balance and  for depositing  amount exceeding the limits.    To the Opposite Party he has not charged any excess amount and  not charged any amount for RTGS service and for POS machine.  The amount charged was appropriated towards the charges for  non maintaining of the minimum average monthly amount and for exceeding  the  limit of amount deposited by the Complainant.  So  the Opposite Party prays before  the Commission,  as there has been no unfair trade practice or deficiency in service on the  part of the Opposite Party, to dismiss  the complaint with the compensatory cost of the Opposite Party.

          6. Affidavit was filed by the Complainant and documents Exts.A1 to A2 were marked from his side.  Ext.A1 is the Statement of accounts with the bank and Ext.A2 is the letter for closure of account issued by the Complainant  to the Opposite Party on 18.09.2017  and the Complainant was examined on 17.02.2018  as PW1.  Affidavit was filed by the Opposite Party and documents Exts.B1 to B5 were marked from his side. Ext.B1 is the application for opening the account, Ext.B2 is the copy of statement of account of the Complainant with the bank.  Ext.B3 is the customer profile sheet

executed by the Complainant,  Ext.B4 is the  non individual FATCA-CRS form signed by the Complainant on 31.01.2017  and Ext.B5 is the account/schedule of charges. The Opposite Party was examined on 31.01.2020 and 11.03.2020 as OPW1.  The complaint was finally heard on 19.11.2020.

          7. On perusal of the complaint,  version, affidavit filed,  documents marked and oral evidence adduced in examination of witnesses,  the Commission raised the following points for consideration.

1.  Whether there has been any unfair trade practice/ deficiency in service on the part of the Opposite Party?
2. If so whether the Complainant is entitled to get  compensation as prayed for?
3. Whether the Complainant is entitled to get cost of the complaint?

8. Point No.1:-  It is the admitted fact that the Complainant had a current

account with the Opposite Party  bank and a POS machine  was availed by the Complainant.  The Complainant allegates that the POS machine was availed by him on the basis of the assurance given by the Opposite Party that no amount would be charged for the POS machine;  not less than a minimum transaction for Rs.25,000/-  should be   made in   the  account in a month;  no minimum balance in the account is applicable to the current account;  no charges would be made even if there is zero balance in the account etc.  But illegally charged Rs.12,348/-  as consolidated charges and Rs.1,965/-  service charge.  He  had also applied for closure of his account with the bank  on 18.09.2017  which is revealed from Ext.A2 copy of application.  But the Opposite Party failed to close his account.

9. On the other hand  the Opposite Party contents that he has not charged any amount illegally.  The  Complainant has signed the account opening application which contains the terms and conditions of operating the account and also contains the declaration of the Complainant.  The Complainant says that he has signed it without reading its contents included in it.  He also contents that the bank had not convinced the terms and conditions of  the operation of the account to the complainant.  As the application for opening the account with its conditions together with the declaration has been duly signed by him,  the Commission cannot admit this contention of the Complainant.  The Opposite Party has admitted in  examination of him as OPW1 that the matter of charging  @ of Rs.3 and Rs.1500  has not  been mentioned in Ext.B2.

On going through the oral evidence given by the  Opposite party in examination  of witness,  it is seen that contradictory statements of evidence are there in the evidence given by him on 31.01.2020  and on 11.03.2020.  So the contents raised by the Opposite Party against the Complainant is not reliable  and hence cannot  be  believed.  It is admitted by the Opposite Party that he has charged Rs.1,500/- per month for non keeping of minimum monthly average balance of Rs.25,000/-  in  the  account  and @ Rs.3 per thousand as the  deposit amount exceeded 12 times of the minimum balance ie,  25,000 x12=3,00,000.    From the charges noted above it is seen  clear   in the exhibit  marked as A1 that the Opposite Party has recorded the amount charged as “consolidated charges for account” and “service tax on charges” etc.  Here the Complainant has the right to know the bifurcation of  the charge levied against him but the Opposite Party has failed to show or explain the bifurcation of the consolidated charges in  to  each  head  of  charge.    Further the Opposite Party has also failed to indicate the names and number of months in which minimum balance was not there in the account of the Opposite Party.  Without indicating this fact,   charging  amounts as consolidated charge is illegal and cannot be accepted.  Levying  the charge against a person without explaining him the quantum of  charge on each head is not admissible as it is against the principle of natural justice.  The Opposite party has admitted that he had offered the Complainant that no charges would be applicable to POS machine but at the same time admits that he has charged  rent in respect of POS machine.  As he had admitted that no amount shall be charged in respect of POS machine he has no

right to charge any amount as rent for POS machine also.  So, the charging of rent for the POS machine is also  cannot be accepted.  Here, as the charges made against the current account is not admissible,  the GST charged on the  charges is also not admissible.  As the consolidated charges made  against the current account,  the GST levied on the charges and the Rent on POS machine charged etc  are not admissible,  there has been  unfair trade practice/ deficiency in service on the part of the Opposite Party.  Therefore  point No.1 is  in favour of the Complainant and hence he has  the right to get back the amount levied  illegally on his current account. 

          10. Point No.2:-  As point No.1 is  proved in favour of the Complainant he has the right to get compensation.

          11. Point No.3:-  As point No.1 and 2 are proved  in favour of the  Complainant he has the right to get the cost of the complaint.

          12.  In the result,  the complaint is allowed and the Opposite Party is directed to pay the Complainant:-

1. Rs.12,000/-  (Rupees Twelve thousand only) being the amount noted by the Complainant in the petition as charges claimed to be levied by the Opposite  Party with interest  @ 6% from the date of charging  each amount as seen in the statement of account (B2)
2. Rs.8,000/-  (Rupees Eight thousand only)  as compensation and
3. Rs.5,000/-  (Rupees Five thousand only)  as cost of the complaint and legal notice.

The Opposite Party is directed to pay the above amounts within 30 days from the date of receipt of a copy of this order failing which the Complainant shall have the right to recover the amounts by due  process of law.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the day of  17^th  December 2020.

                                                                    PRESIDENT:     Sd/-                                                                                                

                                                                     MEMBER   :    Sd/-

                                                                        MEMBER  :     Sd/-

APPENDIX.

Witness for the Complainant.:-

PW1.              George Varghese                           Complainant.                                              

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Witness for the Opposite Party:-

OPW1.          T. Ajesh Nair.                                   Bank Manager       

Exhibits for the Complainant:    

A1.      Statement of Accounts.                           

A2.      Copy of Letter.                                            dt:18.09.2017

Exhibits for the Opposite Party:-

B1.      Copy of Application.                                 

B2.      Copy of Statement of Account.

B3.      Customer Profile Sheet.                          

B4.      Non- individual: FATCA- CRS form.       dt:31.01.2017.

B5.      Pharma Current Account/ Schedule of charges.