KUNDAN KUMAR KUMAI

This is an Appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the judgement and order dated 24/11/2022, passed by the Ld. DCDRC, Raiganj in Complaint Case no.07/2022.

Brief facts of the appellant’s case, is that the deceased/husband of the appellant, during the tenure of his service had obtained a house repairing loan amounting to Rs.4,12,500/- (Rupees four lakhs twelve thousand five hundred) only, from the respondent nos. 1 & 2 @ 9% per annum, payable by 144 EMIs, @ Rs.4,700/- (Rupees four thousand seven hundred) only each, to be deducted from the bank account, lying with the respondent bank, from the month of April, 2007 till March, 2019. At the time of obtaining the loan the deceased/husband had to assign LIC Policy Nos. 455408065 and 456252530, as security to the above loan. That apart the deceased/husband had to insure the loan amount by a Policy from Bajaj Allianz by depositing a premium of Rs.18,885/-. But the respondent nos. 1 & 2 continued to deduct the EMI of Rs.4,700/- (Rupees four thousand seven hundred) after the expiry of March, 2019, but, once the deceased/husband noticed the same, he intimated the same to the respondent no.1, who assured that he would stop the deduction. But the deceased/husband fell seriously ill and expired on 14/07/2021, leaving behind the appellant and proforma respondent nos. 3 & 4. After the intimation of the death of the deceased/husband had been made to respondent no. 1, who stopped to deduct the EMI amount of Rs.4,700/- (Rupees four thousand seven hundred) only, on and from 04/06/2021. The appellant had then claimed the amount due from LIC Policy no. 455408065, which had matured in the meantime and the maturity amount of Rs.3,42,158/- had been lying in the account of the deceased/husband, after the same had been transmitted by the LICI. The other LIC Policy No. 456252530 lying in the name of the deceased/husband was also in the custody of the respondent no.1. The appellant visited the office of the respondent no.1 from time to time with a request for return of the excess amount i. e. Rs.4,700/- x 27 months (April, ’19 to June’21) totaling to Rs.1,26,900/- (Rupees one lakh twenty-six thousand nine hundred) only, which had been drawn by the respondents along with Rs.3,42,158/-, transferred by the LICI.

The appellant had then obtained bank’s statement on 16/08/2021 and found that the account opening date had been shown 23/04/2009 instead of April, 2007 and the outstanding loan amount had been shown as 32,740/- (Rupees thirty-two thousand seven hundred forty) only. On 31/08/2021 the proforma respondent no.3 had written to the respondent no.1, for proper statements of accounts, but the respondent no. 1 had failed to do so.

The appellant, thereafter, submitted the complaint before the Assistant Director, Consumer Affairs and Fair Business Practice, Raiganj, but the respondents failed to appear for the settlement. The acts of the respondents fell within the purview of deficiency in service and unfair trade practice. Finding no alternative, she lodged a complaint before the Ld. DCDRC, Raiganj with necessary prayers mentioned in the complaint. Hence this case.

The respondents appeared to contest the claim by filing written version, wherein the appellant’s case was denied on the ground, that the technology used by the respondents did not allow the withdrawal of excess EMI. That apart, the return of the amount from the LIC Policies placed with the bank could be done only after the adjustment of dues. Furthermore, the account statements supplied would only be from 23/04/2009 as prior to that the accounts were maintained in the manual data entry system and which was lying with the pass-book of the deceased/husband. The deceased/husband had obtained loan on flexible rate of interest and the same had been calculated till Nov., 2019. The legal heirs have been intimated to submit application in proforma but they had failed to do so and for which reason the case below should be dismissed.

After going through the evidence of the appellant and her documents and after hearing both the sides the Ld. DCDRC passed the impugned order dismissing the case on contest but without cost.

Being aggrieved by the impugned order, the appellant preferred this instant appeal on the ground that the Ld. DCDRC below, erred in law and facts while passing the impugned order.

                                                                         Decisions with Reasons

Ld. Advocate for the appellant at the time of final hearing, submitted that the Respondents committed deficiency in service as well as unfair trade practice, when they started deducting EMI amounting to Rs.4,700/- (Rupees four thousand seven hundred) only from April, 2019 onwards till June, 2021, without intimating the deceased/husband of the appellant, during his life time. In this regard, he has relied in the judgement passed by the Hon’ble State Consumer Disputes Redressal Commission on 11/05/2021 in Vishnu Bansal Vs. ICICI Bank Ltd. and in the guidelines of Fair Practices Court for Lenders passed by the RBI. Moreover, the Respondents in support of their assertions, that the heirs had been intimated, to submit application in proforma for receiving the LIC value, was not corroborated by any other evidence. He also assailed the observation in the impugned order that the Banking Ombudsman Scheme, 2006 was not resorted to before filing this case. He, therefore, prayed for setting aside the impugned order.

Ld. Advocate for the Respondents at the time of final hearing submitted, that the loan obtained by the deceased/husband of the appellant, had been governed by the floating interest scheme as per the RBI guidelines and therefore the question of excess withdrawal of the EMI from April, 2019 does not arise. Moreover, the appellant had not submitted any succession documents either from the local Gram Panchayat or from any Competent Authority, for which reason the LIC amount could not be disbursed after deducting the dues from the account of the deceased/husband. That apart the impugned judgement did not suffer from any irregularity or illegality.

To start with, the sanctioned letter dated 31/01/2007 issued by the Respondent/Bank clearly established, that the deceased/husband had obtained a loan amounting to Rs.4,12,500/- (Rupees four lakhs twelve thousand five hundred) only and 9% per annum floating interest, payable by 144 instalments, starting from April, 2007 to March, 2019. Till March 2019, the loan of the EMI payment is not disputed as there is nothing in the record. The main dispute arises from the deduction of EMI from April, 2019 till June, 2021 when the deceased/husband expired on 14/7/2021, established by the Death Certificate dated 24/07/2021. The fact that the above loan was governed by the floating interest is not disputed as well as the amount of EMI remaining the same throughout @ Rs.4,700/- (Rupees four thousand seven hundred) only, with the tenure to be extended on the increase of the interest component.

It is well settled law, that the Commission has no power to look into the modalities of the loan agreement, between the warring parties. Therefore, the short question that needs to be decided is, whether the Respondents in the absence of any written direction ought to have intimated the deceased/husband of the appellant, with regard to the increase of the loan tenure in the wake of increase in the interest component. In this regard, the appellant has relied in the judgement passed by the Hon’ble State Consumer Disputes Redressal Commission on 11/05/2021 in Vishnu Bansal Vs. ICICI Bank Ltd. and in the guidelines of Fair Practices Court for Lenders passed by the RBI. However, the principle espoused in the above judgement has been overruled by the Hon’ble NCDRC in appeal dated 23/11/2022, stating that the principles of deficiency of service and unfair trade practice would not be attracted, when the respondent would be fully aware of the deductions made from his account. Hence, from the principles percolating from the above judgement clearly indicate that the Respondents were not at fault while deducting the EMIs on and from April, 2019, without intimating the deceased/husband of the appellant. However, as already stated above this Commission having no authority to review the agreement entered into by the concerned parties, this appeal is bound to fail.

However, the Respondents should disburse the maturity amount amounting to Rs.3,42,158/- (Rupees three lakhs forty-two thousand one hundred fifty-eight) only received against the maturity of the LIC Policy No.456252530 as per established norms. Similarly, the LIC Policy No.455408065 should also be returned accordingly. Under the circumstance, the appeal fails.

                                                                        It is therefore,

                                                                          ORDERED

That the instant appeal be and the same is dismissed on contest but without cost.

The impugned order is hereby upheld.

Copy of this order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRC, Raiganj for necessary information and action.