BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of December 2013
Filed on : 24/01/2012
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. V.K. Beena Kumari, Member
CC.51/2012
Between
Fasila Azees, : Complainant
W/o. Jinesh S.Das, (By Adv. Lakshmanan T.J,
Now residing at ‘Gayathri’, Penta Queen, Padivattom,
Gazari Nagar, Ayyampilychira Lane, Kochi-24)
Eroor North, Thripunithura-682 306.
Vs
1.The Branch Manager, : Opposite parties
HDFC bank, Elmar Square, (By Adv. Lal K. Joseph,
39/4157. M.G. Road, Ravipuram, M/s. Sheriff Associates,
Kochi-682 016. 41/318-C, Kolliyil buildings,
Near Mullassery Canal
2. HDFC Bank Ltd., Cards Division, 8, Road, Kochi-682 011)
Lattice Bridge Road, Thiruvanmiyur,
Chennai-600 041, rep. by its Manager.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant had started an account with the 1st opposite party. Later the complainant was provided with a credit card. The facts being so the opposite party debited a sum of Rs. 4,779/- and Rs. 2,206/- towards an insurance and Rs. 150/- towards processing fee for the insurance. At the instance of the complainant the opposite parties had credited Rs. 4,779/- and Rs. 2,206/- in her account. But the processing fee was not credited. Again the opposite parties had debited Rs. 398.25 and Rs. 183.83 towards insurance. When the complainant asked about the details of the accounts the opposite parties agreed to credit the amounts. From the account statements dated 16-12-2010, 16-01-2011 and 16-02-2011 the amount of Rs. 398.25 and Rs. 183.83 each had been taken by the Bank from the account of the complainant. As per the account statement dated 16-02-2011 the total dues shown is Rs. 17,183/-. On receipt of the same the complainant approached the 1st opposite party and requested to close the credit card account by paying the balance amount after deducting the amounts debited from her account from 16-10-2010 onwards. Accordingly the complainant paid an amount of Rs. 12,500/- towards full and final settlement of the credit card account. On 16-04-2011 again the opposite parties started to issue statement to the complainant stating Rs. 3,903.87 as the due. On enquiry the 1st opposite party informed that she need not pay the amount. Contrary to the assurance they had started sending statements from16-05-2011 to 16-12-2011. On 11-01-2012 the 2nd opposite party had sent a notice to the complainant demanding to pay
Rs. 9,042.61 on or before 26-01-2012 failing which they will be exercising Banker’s Lien and right of set off option from her bank account. Though the complainant approached the 1st opposite party to withdraw the demand, the opposite parties informed that they will proceed with coercive steps. The complainant is not liable to pay the amount taken by the bank towards insurance benefit scheme. The amount taken by the bank towards insurance without the consent of the complainant amounts to unfair trade practice. The complainant is entitled to get set aside the notice dated 11-01-2012 and also entitled to get a compensation of Rs. 10,000/- and Rs. 5,000/- towards costs of the proceedings. This complaint hence.
2. The version of the opposite parties is as follows.
The complainant had availed an insurance policy from HDFC Ergo General Insurance Company Ltd. As per the request of the complainant the opposite parties had paid the amount from insurance premiums towards the insurance company and the complainant had agreed to repay the said amount in 12 equal monthly instalments. The complainant is an account holder of the opposite party and at her request the opposite parties had issued a credit card to the complainant. The complainant had failed to pay the amount as per credit card statement dated 16-01-2011 for an amount of Rs. 15,495.36. the due date for the payment was on 05-02-2011. Since the complainant had failed to pay the same within due date the opposite parties had issued credit card statement dated 16-02-2011 directing her to pay Rs. 17,183.32. But the complainant paid only Rs. 12,183/- on 19-02-2011. The opposite parties had collected Rs. 398.25 and Rs. 183.83 on 16-10-2010 as ‘Dial an EMI RTL’. The complainant’s acceptance of the insurance policy is more evident from the payment of EMI’s on 08-11-2010, 07-12-2010 and 03-01-2011. On 05-01-2011 the opposite parties received a request from the complainant to close the insurance policy. The opposite parties forwarded the same to the insurance company. They cancelled the insurance contract with the complainant and returned Rs.3,438/- and Rs. 1,589/- to the opposite parties and the opposite parties credited the amounts to the credit card account of the complainant. The complainant had not put forward any request for closing her credit card account. After enjoying the benefits of the policy by the complainant the opposite parties shall not be directed to recredit the amounts since the opposite parties had already paid for the insurance policy of the complainant. The opposite parties had never entered into a settlement agreement with the complainant for the payment of the dues. As per the law of contract and as per the terms and conditions in the agreement, the opposite parties had exercised the banker’s lien and right of set off. The current dues of the complainant towards the opposite parties is Rs. 10,056.59. There is no unfair trade practice on the part of the opposite parties and the complaint is liable to the dismissed.
3. No oral evidence was adduced by the complainant. Exts. A1 to A5 were marked on her side. The witness for the opposite parties was examined as DW1 and Exts. B1 to B4 were marked on their side. Heard the learned counsel for the parties.
4. The points that came up for consideration are
i. Whether the complainant is entitled to get set aside the impugned
notice dated 11-01-2012?
ii. Whether the opposite parties are liable to pay compensation and
costs of the proceedings to the complainant?
5. Point No. i. Admittedly the complainant is an SB account holder of the opposite parties. The complainant was issued with a credit card in the said account. According to the complainant the credit card account was closed fully and finally on receipt of the account statement for Rs. 17,183/- dated 16-01-2011 by paying Rs. 12,183/- after deducting the insurance premium amounts debited from her credit card account. The opposite parties maintain that the complainant did not close the credit card account on 19-02-2011 on the date of payment of Rs. 12,183/- and an amount of Rs. 5,000.32 was outstanding as on that date .
6. At the instance of the complainant vide order in I.A. No. 39/2012 this Forum passed the following order.
“This petition is put in by the complainant seeking direction against the opposite parties to keep the notice dated 11-01-2012 in abeyance till disposal of the complaint.
2. We have heard the counsel for the complainant and gone through the documents on record. Prima-facie, the apprehension of the complaint is sustainable. Therefore, we allow this petition and direct that the opposite parties shall refrain from taking any further action in their notice dated 11-01-2012 until further orders, since the same would not preclude them from going ahead legally.”
7. Indisputably nothing is on record to show that the opposite parties had accepted Rs. 12,138/- against the demand for Rs. 17,183/- on 19-02-2011 from the complainant towards full and final settlement of the credit card account of the complainant. Moreover even according to the complainant she had not put it in black and white requesting the opposite parties to close the credit account at any point of time. However it is to be noted that the complainant had not used the credit card since 19-02-2011 evidenced by Ext. B3 credit card account statement.
8. Evidently the opposite parties had been debiting Rs. 398.25 and Rs. 183.83 from 16-10-2010 to 16-02-2011 from the credit card of the complainant, without any plausible reasons that too without the consent of the complainant. Though the opposite parties contented that they have debited the amounts at the request of the complainant towards insurance premium, they have failed to produce any evidence or documents to substantiate the same. In the absence of any evidence we are only to hold that the above conduct of the opposite parties amounts to deficiency in their service. The opposite parties are legally liable to refund the said amounts to the complainant with interest, since the debit of the above amounts have been without the consent of the complaint.
9. Considering the contentions of the complainant and the opposite parties, and on perusal of the documents on record we are of the opinion that prima-facie contributory negligence is writ large on the part of the complainant and the opposite parties for reasons stated above.
10. To set things right we are only to pass the following order.
i. We set aside Ext. A1 the impugned notice
ii. The complainant is not liable to pay any more amount in her credit
card account.
iii. The opposite parties shall refrain from marking any lien on the SB
Account of the complainant.
iv. The order in I.A. No. 39/2012 is made absolute.
v. No order as to compensation and costs of the proceedings.
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Notice dt. 11/01/2012
A2 : Copy of statement dt. 16-10-2010
A3 : copy of statement dt.16- 12-2010
A4 : “ “ dt. 16-01-2011
A5 : “ “ dt. 16-04-2011
Opposite party’s exhibits :
Ext. B1 : Power of attorney
B2 : Credit card brochure cum application form
B3 : Copy of letter dt. 21-02-2011
B4 : Copy of certificate dt. 15-05-2012
Depositions:
DW1 : Ashok Kumar R.
