Andhra Pradesh

Chittoor-II at triputi

CC/68/2018

M.S.Hariff Basha, s/o M.S.Reddy Ansar - Complainant(s)

Versus

The Branch Manager, Bajaj Financial Services - Opp.Party(s)

National Association of Consumers (NAC)

26 Feb 2020

ORDER

Filing Date: 31.10.2018

                                                                                                                                                                                       Order Date:26.02.2020

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TWENTY SIXTH DAY OF FEBRUARY, TWO THOUSAND AND TWENTY

 

 

 

 

C.C.No.68/2018

 

 

Between

 

 

Mr.M.S.Hariff Basha,

S/o. M.S.Reddy Ansar,

Aged 37 years,

D.No.4-4-728, Nehru Nagar,

Tirupati – 517 501.                                                                            … Complainant.

 

And

 

 

1.         The Branch Manager,

            Bajaj Financial Services,

            New No.441, New Balaji Colony,

            AIR By Pass Road,

            Tirupati – 517 502.

 

2.         The Branch Manager,

            State Bank of India,

            Tilak Road Branch,

            Tirupati – 517 501.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 20.12.2019 and upon perusing the complaint and other relevant material papers on record and on hearing The President, National Association of Consumers (NAC), for complainant, and Sri.V.Upendra, counsel for opposite party No.1, and Sri.D.Jayachandra, counsel for opposite party No.2, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            Complaint filed under Section-12 of C.P.Act 1986, alleging as follows –         A Digital Product Finance (DPF) loan amount of Rs.16,300/- was sanctioned to the complainant by the 1^st opposite party on 15.03.2018 vide DPF loan account No.442DPF67040372 against hypothecation of  Samsung J7/SM-G615FZKDINS mobile phone. The 1^st opposite party collected Rs.3,260/- in cash from him on 15.03.2018 at the time of sanction of loan towards payment of two months advance Equated Monthly Installments (EMI) amount of Rs.1,630/- each. As per the oral instructions of 1^st opposite party, remaining loan amount of Rs.13,040/- is repayable in eight equated monthly installments of Rs.1,630/- each with effect from April 2018. The 1^st opposite party also obtained eight blank cheque leaves of Savings Bank Account No.30693697188 belonging to complainant maintained with State Bank of India, Tilak Road Branch, Tirupati. As per the agreement, he has paid cash in his savings bank account, enabling the 1^st opposite party to recover the entire eight equated monthly installments of Rs.1,630/- each regularly since April 2018. The 1^st opposite party started recovering Rs.1,862/- per month from his savings bank account instead of Rs.1,630/- per month, thus violating terms of loan agreement. The opposite parties 1 and 2 together have debited Rs.3,245/- (Rs.295/- x 11) from his savings bank account since 02.05.2018 without his consent and knowledge and as such the Minimum Average Balance (MAB) reduced and the bank had debited MAB charges every month to my account for not maintaining Minimum Average Balance. The 1^st opposite party has not provided copy of loan sanction letter to him. He has recorded the conversation between him and 1^st opposite party made on several occasions. Notice dt:12.10.2018 was sent by him to 1^st opposite party by registered post and the same was returned undelivered with endorsement “Refused by the First Party”. The complainant visited 2^nd opposite party branch and made a written complaint dt:29.10.2018 to the Branch Manager regarding debit entries for which the Branch Manager has given ambiguous written reply to his complaint. Hence, he has filed this complaint seeking direction to opposite parties to refund illegally debited amount of Rs.3,245/- with interest at 24% p.a. from 02.05.2018, and also to refund Rs.1,856/- which was collected from him by 1^st opposite party in excess of monthly installment of Rs.1,630/- each from April 2018, and to pay compensation of Rs.90,000/- apart from litigation expenses of Rs.4,000/-.

            2.  Opposite party No.1 filed the written version contending as follows – There is no company in existence by name “Bajaj Financial Services”. The complainant has not made M/s. Bajaj Finance Limited as party to the complaint and therefore complaint has to be dismissed on this ground. Further, M/s. Bajaj Finance Limited, is a non-banking finance company and represented by its Legal Officer. It is submitted that the complainant has not approached the Forum with clean hands since he suppressed the real facts. The contents of the complaint are denied. The consumer dispute raised by the complainant is not maintainable. The complainant had taken loan from 1^st opposite party and as such the relationship between the complainant and 1^st opposite party is that of debtor and creditor and not that of consumer and service provider. The Hon’ble Forum has no jurisdiction to entertain the present complaint. On 15.03.2018 complainant had purchased Samsung made 7/SM-G615FZKDINS mobile from 1^st opposite party, by availing financial assistance of Rs.16,300/- vide loan account No.442DPF67040372 from 1^st opposite party, which was repayable in 10 Equated Monthly Installments (EMI) at the rate of Rs.1,630/-. The complainant made down payment of Rs.3,260/- through dealer, which is adjusted as advance for first and second EMIs. As per the agreed terms, remaining loan amount of Rs.13,040/- has to be paid by the complainant in 8 EMIs, which were due on 2^nd of every month commencing from 02.04.2018, till 02.11.2018. The complainant has given Auto Debit Mandate i.e. ECS mandate. However, out of 8 EMIs, complainant has timely honored ECS mandate for EMI Nos.2,3,4,5 and 6 only. The remaining 3 EMIs i.e. 1,7 and 8 bounced and as such bouncing charges were levied in the LAN. Subsequently, complainant has made payment of bounced EMI No.1 only. Still he has not paid bounced EMIs 7 and 8. The statement of account is given below:

Sr.No.	EMI Due Date	EMI Paid on	EMI Paid by	EMI Paid in delay
1	02.04.2018	19.04.2018	Cash	17 days
2	02.05.2018	02.05.2018	ECS	0
3	02.06.2018	02.06.2018	ECS	0
4	02.07.2018	02.07.2018	ECS	0
5	02.08.2018	02.08.2018	ECS	0
6	02.09.2018	02.09.2018	ECS	0
7	02.10.2018	02.11.2018	No	Delay is continuing as complainant has not yet made the payment
8	02.11.2018	05.11.2018	No.	Delay is continuing as complainant has not yet made the payment

      

            The statement of account shows bouncing charges and late payment charges as overdue. On 15.03.2018 complainant also purchased Digital Phone Safe Insurance Policy of Rs.1,849/- against one time insurance premium policy. The complainant has purchased the said insurance policy by availing financial assistance of Rs.1,849/- from 1^st opposite party vide LAN: 442DFS67040506 (Insurance Loan). As per agreed terms, the insurance loan has to be repaid in 8 installments along with interest of Rs.7/-. The complainant has agreed to repay the sum of Rs.1,856/- by 8 EMIs of Rs.232/- each and the said EMIs were due on 2^nd of every month commencing from 02.04.2018 and ending on 02.11.2018. The complainant has given Auto Debit Mandate i.e. ECS mandate. The statement of account is given below:

Sr.No.	EMI Due Date	EMI Paid on	EMI Paid by	EMI Paid in delay
1	02.04.2018	19.04.2018	Cash	17 days
2	02.05.2018	02.05.2018	ECS	0
3	02.06.2018	02.06.2018	ECS	0
4	02.07.2018	02.07.2018	ECS	0
5	02.08.2018	02.08.2018	ECS	0
6	02.09.2018	02.09.2018	ECS	0
7	02.10.2018	02.11.2018	No	Delay is continuing as complainant has not yet made the payment
8	02.11.2018	05.11.2018	No.	Delay is continuing as complainant has not yet made the payment

 

            The statement of account of Insurance Loan showing bouncing charges and late payment charges as overdue. As on 31.12.2018, as per both loan account statements, complainant has to pay balance sum of Rs.6,624/-, the details of which are as under:

LAN	Overdue EMI amount	ECS bouncing charges	Late Payment Charges	Total
442DPF67040372	Rs.3,260/-	Rs.1,350/-	Rs.1,000/-	Rs.5,610/-
442DFS67040506	Rs.464/-	0	Rs.1,000/-	Rs.1,464/-
			Total	Rs.7,074/-

 

            3.  The opposite party No.1 further submitted that complainant has agreed to avail the insurance, which is evident from the Loan Term Sheet wherein he has read, understood and signed. Hence, the complainant cannot state that complainant is not aware of the insurance loan. The opposite party No.1 has not collected any amount of Rs.295/- from complainant’s bank account and the same can be verified by bare perusal of statement of accounts. The complainant has to take-up the issue of deduction of Rs.295/- with opposite party No.2. There is no deficiency of service on the part of opposite party No.1. The loan sanction letter and other documents are available on the portal named as “Experia” of opposite party No.1 company and every customer availing the loan is issued with a user name and password with which he/  she can access and get all the relevant information with regard to the loan availed and the same was also informed to the complainant. The present complaint is therefore frivolous and vexatious and liable to be dismissed.

            4.  Opposite party No.2 filed the written version contending as follows – At the outset complaint allegations are denied. Opposite party No.2 is not concerned with sanctioning of DPF loan in favour of complainant by opposite party No.1 on 15.03.2018 for purchase of Samsung J7/SM-G615FZKDZINS mobile phone vide DPF loan account No.442DPF67040372. Further, they have nothing to do with collection of Rs.3,260/- in cash from complainant on 15.03.2018 by opposite party No.1 at the time of sanction of loan and the same was adjusted towards two months advance EMIs. They are also not concerned with any oral instructions of opposite party No.1 to recover the remaining loan amount of Rs.13,040/- in 8 EMIs at Rs.1,630/- each commencing from April 2018. Opposite party No.2 is not concerned with issuance of 8 signed blank cheque leaves by complainant to opposite party No.1 relating to S.B.Account No.30693697188. The averments that opposite party No.1 started recovering Rs.1,862/- from the savings bank account of complainant in violation of loan agreement dt:15.03.2018 is no way concerned to opposite party No.2. It is further denied that opposite parties 1 and 2 together have debited Rs.3,245/- to his savings bank account No.30693697188 since 02.05.2018 without the consent of the complainant and as such his savings bank account balance was reduced to below the level of minimum average balance (MAB) and that opposite party No.2 started debiting MAB charges every month from the account of the complainant. The other allegations are specifically denied. It is submitted that complainant while obtaining loan from 1^st opposite party had entered into ECS mandate by which the complainant himself allowed opposite party No.1 to recover the monthly installments. Accordingly, opposite party No.1 has sent a request for the realization of Rs.1,862/- per month and the same was debited from the account of the complainant and credited into the account of opposite party No.1. The ECS mandate will be operated at central level and the branch has no control to regulate the software system, as it is under the control of RBI. Hence, opposite party No.2 has nothing to do with deduction of Rs.1,862/- or Rs.1,856/- per month instead of Rs.1,630/- per month. It is purely as per the terms of agreement between complainant and opposite party No.1, amount was deducted. An amount of Rs.295/- was deducted for 11 months, which amounted to Rs.3,245/-, as it is towards ECS mandate failure charges. When opposite party No.1made request for the remittance of EMI from the ECS mandate, it will be sent to system generated operating mode and it will be sent to savings bank account of the complainant maintained with opposite party No.2 and by the date of request if the amount is available in the account, the system will automatically debit the amount from the account of the complainant and credit the amount in the account of the opposite party No.1, as per the request. If the balance is not available on the date of request, the same will be returned as ECS mandate return and as per the norms and guidelines of RBI, the central level monitoring agency will charge ECS mandate failure charges, as the complainant has not maintained the balance for the compliance of ECS mandate. As per the S.B.Account statement of the complainant, opposite party No.1 has sent request for EMI of Rs.1,862/- and there were 11 occasions,  sufficient amount for compliance of ECS mandate was not available in the account of the complainant and thus a sum of Rs.295/- was charged for each failure of ECS. Opposite party No.2 is no way responsible for the same. The defect of not maintaining funds and having issued ECS mandate to opposite party No.1 by the complainant is purely his negligence and he cannot blame opposite party No.2 for the same. Opposite party No.2 has clearly intimated to the complainant that they are not concerned with debiting ECS mandate failure charges, but unnecessarily complainant filed this complaint against the opposite party No.2. Hence, it is prayed to dismiss the complaint with exemplary costs.      

            5.  Complainant filed the chief affidavit as P.W.1 and marked Exs.A1 to A6. One Sri.M.Aravind filed evidence affidavit as R.W.1 on behalf of opposite party No.1 and Sri.P.Ravi filed chief affidavit as R.W.2 on behalf of opposite party No.2 and Exs.B1 to B5 are marked on behalf of opposite parties.

            6.  The point for consideration is whether there is deficiency of service on the part of opposite parties as alleged by the complainant? If so, to what extent the complainant is entitled for the reliefs sought in the complaint?

            7.  Point:-  In the written arguments, complainant contended that he was sanctioned DPF loan of Rs.16,300/- vide loan account No.442DPF67040372, for purchase of Samsung J7/SMG615FZKDINS mobile phone and that opposite party No.1 collected Rs.3,260/- in cash from him on 15.03.2018 at the time of sanction of loan towards payment of two months advance EMIs at Rs.1,630/- each, and on oral instructions of opposite party No.1, remaining loan amount of Rs.13,040/- has to be paid in 8 EMIs at Rs.1,630/- each with effect from April 2018, and that he had also issued eight signed blank cheque leaves relating to his S.B.Account No.30693697188. It is further argued that opposite party No.1 started recovering Rs.1,862/- per month from his S.B.Account instead of Rs.1,630/- per month, thus violating the terms of loan agreement dt:15.03.2018. Further the two opposite parties together debited Rs.3,245/- (Rs.295/- x 11) from his account since 02.05.2018 without his knowledge and consent and as such the Minimum Average Balance (MAB) reduced in his account, for which opposite party No.2 charged MAB charges every month and as such he sustained loss due to deficiency in service on the part of opposite parties 1 and 2.

8. Ex.A1 is Statement of Loan Account showing debit and credit particulars of S.B.Account maintained by the complainant. Ex.A2 is notice dt:12.10.2018 issued by the complainant to opposite party No.1. Ex.A3 is returned cover with endorsement ‘Refused’ by opposite party No.1. Ex.A4 is letter addressed by the complainant to Chief Manager of opposite party No.2 dt:29.10.2018, asking him to provide copies of debit vouchers and debit narration enabling the complainant to file case before the Consumer Forum. Ex.A5 is S.B.Account pass book of the complainant. Ex.A6 is CD - copied conversation between the complainant and 1^st opposite party.

            9.  Opposite party No.1 in the written arguments contended that this Forum has no jurisdiction to entertain the complaint since the relationship between the complainant and opposite party No.1 is that of debtor and creditor, as opposite party No.1 arranged the loan for complainant to purchase Samsung mobile. In the written arguments opposite party No.1 has referred the following judgments -  (i). Judgment of State Commission of Cuttack in C.C.No.81/2008 between Deepak Kumar Nayak vs. Branch Incharge, IndusInd Bank Ltd., (ii). Sheela Kumari vs. Tata Engineering and Locomotive Company and Ors., reported in 2007 NCJ 570, (iii). Kerala State Consumer Disputes Redressal Commission in the case of Sreeja Finance vs. Saumini and Anr. reported in 2008 (1) CPR 128, (iv). National Commission judgment in the case between Manager, St. Ary’s Hire Purchase (P) Ltd. Vs. N.A.Jose reported in III (1995) CPJ 58 (NC), and (v). Ram Deshlahara vs. Magma Leasing Ltd. reported in III (2006) CPJ 247 (NC), wherein it is observed that “the financier does not render any service within the meaning of Consumer Protection Act and consequently the dispute raised by the complainant is not a consumer dispute”. In the written arguments opposite party No.1 relied upon another decision of State Commission, Cuttack in Susanta Kumar Acharya vs. Magma Finance Corporation Ltd. The facts in this decision shows that complainant contended that he has to pay lesser amount, whereas opposite party claimed more amount and the State Commission held that “it is being purely accounts dispute between the parties, Consumer Forum or this Commission cannot decided the same”.

            10. Opposite party No.2 in the written arguments contended that debiting Rs.295/- on 11 occasions has occurred due to electronic clearing system (ECS) mandate failure and this software is controlled by central level monitoring agency as per the norms and guidelines of RBI. Having agreed for ECS mandate, complainant ought to have maintained minimum balance in his account, to enable the bank to deduct the amount as per ECS mandate, and the failure of not maintaining minimum balance is purely negligence on the part of complainant and so he cannot blame opposite party No.2 for the same.

            11.  Ex.B1 is copy of loan statement account, which is equivalent to Ex.A1. Ex.B2 is copy of loan terms and conditions executed by complainant dt:02.03.2018. Ex.B3 is Insurance Statement from 02.04.2018 to 17.12.2018, which shows that every month Rs.232/- is deducted towards installment of insurance loan. Ex.B4 is statement of account showing deduction of Rs.1,862/- every month. Ex.B5 is details of debits and credits in the statement of complainant.

            12.  Complainant case is that as per the terms of agreement opposite party No.1 has to recover Rs.1,630/- every month towards EMS, whereas an amount of Rs.1,862/- has been deducted from his account every month. It is the contention of opposite party No.1 that complainant has suppressed the fact that he has taken Digital Phone Safe Insurance Policy and for that he has to pay every month EMI and the EMIs pertaining to both loan transactions were clubbed and ECS mandate is given by complainant for both loan transactions and as per the said ECS mandate, Rs.1,862/- has been deducted from his account. Complainant contended that he has not given copies of loan particulars by both opposite parties 1 and 2. Had opposite party No.1 deducted Rs.1,630/- per month, there would have been sufficient minimum balance in his account, but as excess amount deducted, minimum balance level reduced, due to which bank has levied charges for not maintaining minimum balance in the account. As rightly contended by opposite party No.2, complainant having agreed for ECS mandate, ought to have maintained minimum balance in his account and he cannot simply throw blame on opposite party No.2 for debiting ECS mandate failure charges. On comparing statements filed by both parties one thing became clear that there is dispute with regard to EMI amount. As rightly contended by opposite party No.1 it is a dispute between debtor and creditor and this Forum has no jurisdiction to entertain such disputes arising out of loan transactions. In view of the citations referred by opposite party No.1, we are of the opinion that this Forum has no jurisdiction to entertain this dispute relating to EMIs and the complainant has to approach proper Forum to seek redressal. Accordingly, we are inclined to dismiss the complaint.

            13. In the result, complaint is dismissed. No costs.                              

            Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 26^th day of February, 2020.

 

       Sd/-                                                                                                                      Sd/-                                                    

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sri  M.S. Hariff Basha (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1:  Sri M. Aravind (Evidence Affidavit filed).

RW-2:  Sri P. Ravi (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Self attested photo copy of BAJAJ FINSERV Statement of Account for Loan Account bearing No. 442DPF67040372 (Loan Transaction details between 15.03.2018 to 11.10.2018).
	Notice dated: 12.10.2018 sent to the 1st opposite party.
	Refused Registered Letter along with Acknowledegement. Dt: 15.10.2018
	True copy of Letter submitted to the 2nd opposite party. Dt: 29.10.2018.
	Original copy of SBI Bank Pass Book of Savings Bank bearing Account No. 30693697188, Mr. Hariff Basha Mallela Shaik, S/o.M.S. Reddy Ansar, 4-4-728, Nehru Nagar, Tirupati.
	Original copy CD copied conversation between the complainant and 1st opposite party.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	True copy of Statement of Account regarding Insurance Loan for the period from 15.03.2018 to 17.12.2018 obtained by the complainant.
	True copy of Loans Terms and Conditions executed by the complainant. Dt: 02.03.2018.
	True copy of Particulars of Statement of Account regarding Insurance Loan for the period from 02.04.2018 to 17.12.2018 obtained by the complainant.
	True copy of SBI, Tilak Road, Tirupati-Statement of Account for the period from 01.05.2018 to 01.11.2018 of the complainant. Dt: 03.01.2019.
	True copy of Details of Debtor/Creditor Summations of complainant of SBI account bearing A/c.No.30693697188, Mr. Hariff Basha Mallela Shaik, S/o.M.S. Reddy Ansar, 4-4-728, Nehru Nagar, Tirupati.

 

 

                                                                                                                                    Sd/-

                                                                                                                           President (FAC)

     

                                    // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

        

 

  Copies to:-   1.  The complainant.

                        2.  The opposite parties.