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:- The Complainant is a consumer of Opposite Party Bank and holder of current account bearing No.162005000460.  The Opposite Party’s agents approached the Complainant and canvassed the current account with offers and by believing the words of Opposite Party, the Complainant opened an account in their branch and Opposite Party assured their services free from all charges.  The Complainant had made several transactions in the account on the assurance of Opposite Party.  Then on verification of accounts, it was found that the Opposite Party bank had illegally and without any right, embezzled an amount of Rs.2,59,390.97/- from the Complainant’s account as charges from the period 01.01.2016 to 30.09.2018.  When the Complainant was aware of the debits in the account, complained about the illegal acts of the Opposite Party and demanded to refund the amount on 06.10.2018.  The Opposite Party assured the Complainant that they would refund the charges collected within a short time, but till this date the Opposite Party has not refunded the amount to the Complainant’s account.  The Opposite Party has no right to charge any amount from the Complainant’s account and the act of Opposite Party is highly unfair trade practice and deficiency of service.  The Opposite Party has gained unlawfully and caused unlawful loss to Complainant.  Therefore, the Complainant prays

1. To direct the Opposite Party to refund Rs.2,59,390.97/- as the charges collected by the Opposite Party with 12% interest from the date of collection of the money till realization
2. To direct the Opposite Party to pay Rs.50,000/- as compensation
3. To direct the Opposite Party to pay Rs.5,000/- as cost of this proceedings and cost of legal notice
4. To grant any other relief that this Forum deems fit to grant.

3.  On getting summons, the Opposite Party appeared before the Commission and filed version by the first Opposite Party, the contents of which are as follows:-  It is submitted that, the complaint is neither maintainable in law nor on facts and is filed without any bonafides and only with an intention to harass the Opposite Parties. The Complainant is not a consumer as defined under the Consumer Protection Act and therefore, the dispute alleged is not a consumer dispute. The petitioner is not a “consumer” as defined under Sec. 2 (d) of the Act. He is not at all a consumer of this Opposite Party. He never availed any service from the Opposite Parties for consideration.  The Complainant herein, who is engaged in business, approached this Opposite Party branch for opening current account for his business purpose and the relevant account bearing No: 162005000460 was opened on 12.09.2013.  In the current account segment, there are different types of current accounts and the terms and conditions of the current account are different. Depending up on the needs and requirements, the Complainant chose Smart Business CA 50K account and at the time of opening this account, the customer had agreed for all terms and conditions and executed necessary documents in this regard. As per the terms and conditions of the smart business CA 50K account, the customer had to maintain Rs.50,000/- as minimum average balance and at that time total cash deposit limit was Rs.50,00,000/-. If the customer maintained monthly average balance amount of Rs.50,000/- for 12 times he is entitled for free cash deposit limit. Free cash deposit limit is not entitled if the customer is not maintaining Monthly average balance. And if the customer is not maintaining MAB and cash deposits are above the free limit, Bank can charge fine. Hence, it is not true that this Opposite Party assured that we had given assurance that our service was free from all charges. As stated above, at the time of opening this current account total cash deposit limit was Rs.50,00,000/- and monthly average balance was Rs.50,000/-.  But since his Transactions were very high, the consumer requested for upgrading the account and the account was upgraded to CA M 20 100 K to enhance cash deposit free limits up to 1 Crore on 15.06.2016. As per CA M20 100K , the customer had to maintain Rs.1,00,000/- as monthly average balance and customer could enjoy free cash deposit limit up to 1 crore by keeping just 1 lakh as MAB. No free cash deposit limit was available if the customer failed to keep the required monthly average balance. It is not true that illegally and without right, this Opposite Party had embezzled an amount of Rs.2,59,390.97/- from the account. The bank had levied Rs.1,58,245/- as charges during the financial year 2015-2016, 2016-2017 and 2017-2018 for not maintaining  MAB and for depositing cash above the free limit. At the time of entering into the agreement, the Opposite Party had clearly communicated to the customer about the MAB and NMAB charges and charges of cash deposit over and above the limit and knowing fully well about its consequences, the Complainant got his account upgraded.  But at the initial stage itself Complainant violated the terms and conditions of the cash deposit. The charges debited from the Complainants account were reflected in his account statement every month and no objection was raised by the Complainant. Still the Complainant is continuing his business through this account. It is therefore very evident that the Complainant was well aware about the terms and is now raising such frivolous contentions in order to get refund of the amount levied from his account. It is not true that this Opposite Party had assured the Complainant that the Opposite Party should refund the charges collected.

            4.  Chief affidavit was filed by the Complainant Exts.A1 to A3 were marked and he was examined as PW1.  Ext.A1 is the details of charges debited and reversed in the account from 01.01.2016 to 30.09.2018; Ext.A2 is the Letter dated 06.10.2018 issued by the Complainant to the Opposite Party and Ext.A3 is the Summary of accounts held under customer ID XXXXX6029 as on March 31, 2019 for the period from 01.03.2019 to 31.03.2019.  From the part of the Opposite Party chief affidavit was filed; Ext.B1 and B2 were marked subject to proof, as they were photocopies and the Assistant Manager of the Opposite Party Bank was examined as OPW1. 

            5.  On a detailed perusal of the complaint, version, affidavits, documents marked, oral evidences and the arguments of the counsels in hearing on 07.07.2023, the following points are raised for consideration

1. Whether the complaint is legally maintainable under Consumer Protection Act 1986…?
2. Whether there has been any deficiency in service/unfair trade practice from the part of Opposite Party Bank…?
3. Relief and Cost with quantum, if any….?

6.  Point No.1:-  In version, the Opposite Party has contended that the Complainant is not a consumer as defined under S. 2(d) of the Consumer Protection Act 1986 he is not at all a consumer of the Opposite Party bank; he never availed any service from the Opposite Party for consideration etc.  As per section 2(d) “consumer” means any person who

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. “hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or, avails of the services for consideration paid or promised, partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.  From this definition it is very clear that by opening a current account by the Complainant in the Opposite Party bank, the Complainant has availed the services of the Opposite Party bank by way of deposits and withdrawal of money for consideration by way of bank charges. As per S.2(0) “service” means service of any description which is made available to potential  users and includes, but not limited to the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or loadging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”.  In this definition of “service” banking is included and hence, the contention of the Opposite Party bank that the Complainant has not availed any service from the Opposite Party for consideration will not stand.  Considering and in the light of Section 2(d) and Section S. 2(o) of the Consumer Protection Act 1986, the Complainant is a consumer of the Opposite Party bank and hence, this complaint is legally maintainable before this Commission.

7.  Point No.2:-  The allegation of the Complainant is that the Opposite Party Bank embezzled an amount of Rs.2,59,390.97/- from the current account of the Complainant as charges from the period 01.01.2016 to 30.09.2018 which is deficiency in service/unfair trade practice and hence this complaint with prayers.  But the contention of the Opposite Party Bank is that the current account was opened by the Complainant and the Complainant had chosen smart business CA 50K at the time of opening the account.  The Complainant had agreed for all the terms and conditions and executed necessary documents in this regard.  As per the terms and conditions of the smart business CA 50K account, the customer had to maintain Rs.50,000/- as minimum average balance and at that time cash deposit limit was Rs.50,000/-.  If the Complainant had maintained monthly average balance amount of Rs.50,000/-, for 12 times he was entitled for free cash deposit limit.  Free cash deposit limit was not entitled, if the customer was not maintaining MAB.    If the customer was not maintaining MAB and cash deposits above the free limit, bank could charge fine.  Afterwards, the Complainant upgraded to CA M20 100K to enhance cash deposit free limits up to one crore on 15.06.2016.  As per CA M 20 100K, the customer had to maintain Rs.1,00,000/- as MAB and customer could enjoy free cash deposit limit up to one crore by keeping just one lakh as MAB.  No free cash deposit limit was available if the customer failed to keep the required MAB.  According to the Opposite Party, the Bank had levied only Rs.1,58,245/- but not Rs.2,59,390.97/- from the account due to not maintaining MAB and depositing cash above free limit as contented by the Complainant.  The charges debited from the Complainant’s account reflected in his account statement every month and no objections were raised by the Complainant.  Still the Complainant is continuing his business through this account and therefore the Complainant was well aware about the terms and conditions.  The Opposite Party has not committed any unfair trade practice or deficiency in service from the Opposite Party bank and hence prayed to dismiss the complaint with compensatory cost.  Commission on perusal of the documents marked by the Complainant as well as the Opposite Party Bank.  From the part of the Complainant, Exts.A1 to A3 documents were marked which were subject to production of originals but the originals were not produced.  While, from the side of the Opposite Party, Ext.B1 and B2 were marked which also were photocopies objected by the Complainant.  But the originals of the exhibits marked were produced neither by the Complainant nor by the Opposite Party and hence, the only available evidence before the Commission is the oral evidence adduced by PW1, OPW1 and OPW2.  In further chief examination of PW1,  the Complainant has admitted the following (1) “A1 Fsâ A¡u­n \n¶pw ssS¸v sNbvXv X¿mdm¡nbXv, _m¦n \n¶pw \ÂInbXÔ (2) “Fsâ A¡u­n \n¶pw ]nSn¨ XpI _m¦v Xncn¨p \ÂInbXnsâ tcJbmWv A3”.    In cross examination, PW1, the Complainant has admitted that (1) “A2  Fsâ H¸v, aäv Imcy§Ä F¶nhbnÔ.  (2) “162005000460 F¶XmWv Current Account  \¼À.  BZyw AXv CA 50 K F¶ A¡u­v Bbncp¶p.  AXv {]Imcw minimum balance 50,000 Dw max 50,00,000 Bbncps¶¶v F\n¡v AdnbnÃmbncp¶p”. (3) “BZyw A¡u­v FSp¯ kab¯v Fsâ balance  50,000 \v Xmsgbpw 50,00,000 \v tatebpw h¶n«p­v.  AXpsIm­mWv Fsâ A¡u­v A]vt{KUv sNbvXXv.  Bbncp¶Xn\m balance IrXyambn maintain sN¿m³ Ignªncp¶nÔ. (4)  “Mother Bank  \n¶ÃmsXbpff  branch IfneqsSbpff CS]mSpIÄ¡v  charge CuSm¡p¶Xv  bank sâ policy  bmsW¶v charge CuSm¡nbt¸mÄ Rm³ a\Ênem¡n”.  (5)  “Cu _m¦pambn Ct¸mgpw A¡u­v maintain  sN¿p¶p­v”.   (6)  “Ct¸mÄ Fs¶ ImWn¨v migration of current account  ImWp¶Xv Fsâ H¸mWv”.  But in cross-examination of OPW1, the Assistant Manager of the Bank has admitted that “Ext.A3 bnse 25.03.2019 se ‘7’ entries ]nSn¨ charge refund sNbvXXmWv”. Relationship keep sN¿m\mbn ]cmXn¡mcsâ  request {]Imcw  refund sNbvXXmWv”.  From the above depositions, Commission has convinced the following.

1. Some amounts recovered as charges from the account of the Complainant were refunded by the Opposite Party Bank to the Complainant.  Which is evident from the admission of the Opposite Party in cross-examination of PW1 “Ext.A3 bnse 25.03.2019 se ‘7’ entries ]nSn¨ charge refund sNbvXXmWv”. 
2. The balance in the account of the Complainant had been less than Rs.50,000/- and above Rs.50,00,000/- as admitted by the Complainant. In cross-examination the Complainant had stated that “A¡u­v FSp¯ kab¯v Fsâ balance  50,000 \v Xmsgbpw 50,00,000 \v tatebpw h¶n«p­v”.
3. That the Complainant had the awareness of the occurance of charges as and when the balance came less than 50,000 and gone above 50,00,000 as per the Rules of the Bank.  Which is evident from the statement of the Complainant in cross-examination that   “A¡u­v FSp¯ kab¯v Fsâ balance 50,000 \v Xmsgbpw 50,00,000 \v tatebpw h¶n«p­v.  AXpsIm­mWv Fsâ A¡u­v A]vt{KUv sNbvXXv”.

            The claim of the Complainant is that the Opposite Party had embezzled an amount of Rs.2,59,390.97/- from his account but the contention of the Opposite Party is that they had embezzled only an amount of Rs.1,58,248/- as charges during the financial year.  No substantial and valid evidence is produced either by the Complainant or by the Opposite Party Bank before this Commission, to prove the sanctity and clarity of the amount of charges made as narrated by the parties to the complaint and hence the Commission is not in a position to get a clear picture as to the correctness of the amount embezzled by the bank as illegal charges.  So Commission is not making an order in this regard.  But, one thing is very clear that OPW1 has admitted in cross-examination that “Ext.A3 bnse 25.03.2019 se ‘7’ entries ]nSn¨ charge refund sNbvXXmWv”.  “Relationship keep  sN¿m\mbn ]cmXn¡mcsâ request {]Imcw refund sNbvXXmWv ”.  From this admission of the OPW1, it is evident that they had effected illegal charges from the account of the Complainant and that is why they had refunded the amount to the Complainant as per his request.  The statement of OPW1 that “the amount was refunded to the Complainant was to keep the relationship with the Complainant”, can no way be admitted as no bank can refund any charges legally effected.  Any amount illegally charged from an account of a customer, though refunded afterwards, shall amount to unfair trade practice/deficiency in service.  Therefore, there has been deficiency in service/unfair trade practice from the part of the Opposite Party.  So, Point No.2 is proved against the Opposite Party.

8.  Point No.3:-  For the deficiency in service/unfair trade practice from the part of the Opposite Party, they are liable to pay compensation and cost to the Complainant.  So, Point No.3 is also against the Opposite Party.

In the result, the complaint is partly allowed and the Opposite Party is directed to

1. Pay Rs.20,000/- (Rupees Twenty Thousand Only) as compensation and
2. Pay Rs.5,000/- (Rupees Five Thousand Only) as cost of this complaint.

The above amounts shall be paid to the Complainant within one month from the date of this Order by the Opposite Party Bank, failing which the amount will carry interest @ 9% per annum from the date of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 26^th day of July 2023.

Date of Filing:-10.10.2018.

PRESIDENT   :Sd/-

MEMBER       :Sd/-                   

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Noushad. M. K.                               Business.

Witness for the Opposite Party:-

OPW1.          Robin. T. S.                                       Assistant Manager, ICICI Bank.

OPW2.          Biju P. S.                                            Bank Employee.

Exhibits for the Complainant:

A1.                  Copy of details of charge debited.

A2.                  Copy of Letter.                                            Dt:06.10.2018.

A3.                  Copy of Summary of Accounts of Complainant.

Exhibits for the Opposite Party:-

B1.                  Copy of Customer Relationship Form.

B2.                  Copy of Migration of Current Account. Dt:15.06.2016.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-