Kerala

Idukki

CC/15/349

Mr.George Maxin - Complainant(s)

Versus

The Branch Manager ICICI Bank - Opp.Party(s)

27 Sep 2019

ORDER

DATE OF FILING : 30.11.2015

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27^th day of September, 2019

Present

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.349/2015

Between

Complainant : George Maxin, S/o. T.S. Varkey,

Thadathil House,

Thattakkuzha P.O.,

Udumbannoor, Idukki.

(By Adv: V.C. Sebastian)

And

Opposite Parties : 1. The Branch Manager,

ICICI Bank Ltd.,

2^nd Floor, EMGEE Square.

Padma Junction,

M.G. Road, Kochi- 682 035.

(By Adv: Lissy M.M.)

2. The Branch Manager,

State Bank of Travancore,

Idukki Branch,

Painavu, Idukki – 685 603.

(By Adv: Babichen V. George)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

Complainant availed a vehicle loan of Rs.3 lakhs from 1^st opposite party in the month of February 2013. The repayment was on instalment basis @ Rs.8352/- per month. The complainant remitted the 1^st EMI on 14.3.2013 to the loan account No.LVCOC00026754963, as instructed by the 1^st opposite party. Thereafter the complainant continued the payment of the instalments regularly through 1^st opposite party. In the month of October 2013, the complainant got a direction from 1^st opposite party, directing him to remit the remaining instalments through the account of the complainant maintained with the 2^nd opposite party. On the basis of this direction, the complainant remitted the next instalment at his account

(cont....2)

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maintained with 2^nd opposite party. Later on the complainant found that this amount was not transferred to the loan account. Then the complainant contacted 1^st opposite party and as per their direction, the complainant paid the further instalment to the loan account directly. While so, the complainant received a legal notice dated 24.3.2015, issued for and on behalf of 1^st opposite party, stating that the complainant was a defaulter and asking the complainant to remit Rs.11,879/-. Again the complainant received another lawyer notice dated 27.4.2015 alleging that he was a defaulter and further asked the complainant to remit Rs.12,138/-. Thereafter the complainant approached 1^st opposite party and enquired about the notice, at that time, 1^st opposite party assured the complainant that it was a mistake and they would rectify it immediately and pronounced the complainant a good service from their part.

 

The complainant further averred that, when he approached the 1^st opposite party to remit the instalment for the month of October 2015, the cashier of the 1^st opposite party stated that, that month's EMI is only Rs.6187/- instead of Rs.8352/-. Hence the complainant paid the amount as stated by the cashier of the 1^st opposite party. Next day, the complainant received a phone call from 1^st opposite party directing him to remit the further loan instalments through the account of 2^nd opposite party bank. When he narrated his painful experience of remitting the loan instalment to the officer of the 1^st opposite party, she replied that they have rectified all mistakes by admitting that the complainant is not a defaulter. As directed by the 1^st opposite party, the complainant remitted his next instalment to her account maintained with 2^nd opposite party. After few days on verification, it is seen that the amount has not been transferred to the loan account of the complainant. On enquiry it is learnt that the 1^st opposite party officer has not done necessary formalities as per the ECS Mandate, for transferring the amount to the complainant's loan account from his account with 2^nd opposite party. It has also been realised that a huge amount has been debited by the 2^nd opposite party illegally from the account of the complainant on various dates. From the beginning itself, the service from the 1^st opposite party to the complainant is too deficient and harassing. The complainant has to spend a large amount and precious time due to the lack of service which is expected from a banking institution like the 1^st opposite party. Hence the complainant approached

(cont....3)

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1^st opposite party on 20.11.2015 with balance loan amount to close his account. But the 1^st opposite party denied to receive the amount and close the loan account, on the reason that the complainant had to pay the balance loan amount with a penalty, which is also illegal.

 

Hence alleging deficiency in service from the part of opposite parties 1 and 2, complainant filed this petition seeking relief such as to direct the 1^st opposite party to close the loan account by receiving the balance loan amount without any interest. Direct the 2^nd opposite party to return the amount realised by them from the account with interest. Further directs the opposite parties to pay compensation and cost.

 

Upon notice, 1^st opposite party entered appearance and filed detailed reply version.

 

First opposite party in their version, contended that the repayment of loan in question was through electronic clearing system (ECS) from the account maintained by the complainant with the 2^nd opposite party. The ECS mandate was not activated due to the best reason known to the 2^nd opposite party for the repayment of the loan and hence resulted in the non-credit of the EMI amount towards the loan account. This opposite party had not given any assurance to the complainant and the complainant was a defaulter of the loan from the beginning onwards. The complainant himself had violated the terms and conditions of the loan agreement. The above facts are well aware to the complainant and he had approached the Forum suppressing all these facts. Hence there is no deficiency in service as alleged by the complainant from the side of this opposite party.

 

In their written version, 2^nd opposite party specifically stated that this opposite party has only realised the charges legally entitled. The complainant do not have any right to get compensation for deficiency in service, from this opposite party. The complainant is having account with this opposite party. When availing the loan, the 1^st opposite party might have signed the ECS mandate from the said bank. Through this step, complainant is enlisted in RBI list of ECS and it is done through a common clearing house. When the complainant is enlisted in ECS list, the mandate is returned for the lack of fulfilling the formalities with this

(cont....4)

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opposite party. The ECS mandate will be returned for technical error and the system of this opposite party will charge mandate return charges for every return. The opposite party has levied actual charges payable to them for the return of ECS mandate for which this opposite party cannot be held liable. It is the duty of the complainant and 1^st opposite party to check whether the ECS mandate formalities have been created and completed property at the opposite party's branch. Failure to do so may be attributed to respective parties. Complainant do not have any sort of cause of action against this opposite party. Hence this was no instance of deficiency in service with complainant at any point of time.

 

The evidence adduced by the complainant by way of proof affidavit and documents. Complainant was examined as PW1 and Exts.P1 to P10 marked. Ext.P1 is the loan statement of account of 1^st opposite party. Ext.P2 is the loan account pass book. Ext.P3 is the copy of receipt. Ext.P4 is the demand legal notice. Ext.P5 is the copy of reply given to the District Legal Services Authority. Ext.P6 is the copy of receipts showing loan EMI payments. Ext.P7 is the loan pass book original. Ext.P8(series) are receipts. Ext.P9 is the loan repayment schedule. Ext.P10 is the demand legal notice dated April 27, 2015.

 

From the opposite side, Managers of the 1^st and 2^nd opposite parties were examined as DWs1 and 2 respectively. Ext.R1 to R4 marked. Ext.R1 is the power of attorney. Ext.R2 is the courier delivery details. Ext.R3 is the copy of acknowledgement card. Ext.R4 is the statement of account of the complainant, which is maintained with 2^nd opposite party bank.

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have heard the counsel for both sides and have gone through the records. It is an admitted fact that complainant availed a loan from 1^st opposite party and at the time of sanctioning loan, 1^st opposite

(cont....5)

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party received signed papers from the complainant for availing the facility of ECS for the repayment of monthly loan instalments. Eventhough the complainant given permission for activating ECS facility as per the direction of the 1^st opposite party, complainant remitted the EMI directly to 1^st opposite party's Thodupuzha or Kattappana branch. It is further admitted that from the 4^th month of 2013 to 10^th month, complainant remitted the EMIs directly to 1^st opposite party. In the month of October 2013, as per the direction of 1^st opposite party, complainant deposited the EMI to his SB account maintained with 2^nd opposite party. But on verification, complainant came to know that this amount was not transferred to the 1^st opposite party's loan account in the due date. Hence this instalment was remitted only after the due date. It means that, eventhough there is sufficient fund in the account of the complainant with 2^nd opposite party, the ECS system was not activated and it caused non-transfer of EMI on the due date. This changed the status of the complainant from regular to a defaulter. On perusing the complainant's averment and deposition of the complainant, it is seen that after the default of ECS facility, complainant continued to remit the EMIs directly to 1^st opposite party for some more months. On perusing Ext.P4, it is seen that 1^st opposite demanded Rs.11,879/- as default charges. Again as per Ext.P10, 1^st opposite party demanded Rs.12,138/- on 27.4.2015 as default payment. From Ext.P8(series) receipts, it is seen that complainant remitted all the instalments regularly and if any instalment was defaulted, it is due to the non-activation of ECS facility. It is not a wilful negligence on the part of the complainant. After the month of October 2015, also the 1^st opposite party directed the complainant to remit the EMI in his SB account maintained with the 2^nd opposite party. From the evidence, it is seen that there after also ECS facility was not worked out. From the records produced by the complainant, it is very clear that 1^st opposite party dragged the complainant here and there for remitting the EMI, at the same time, it is pertinent to note that 1^st opposite party has not took any initiative to check out why the ECS mandate was not functioning.

 

To prove the contention of the reply version, opposite party produced Exts.R2 and R3 to convince the Forum that they send ECS request to the 2^nd opposite party, in proper time. On perusing the exhibits, the Forum found that Ext.R2 is the courier delivery details and Ext.R3 is the copy of

(cont....6)

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AD card. On further perusal, it is seen that as per Ext.R2, a letter was issued to Techprocess Payment Services Pvt. Ltd. and it was returned as “party refuse to accept”. No further records are produced by the 2^nd opposite party to convince the Forum that whether the letter send to the Techprocess is for availing ECS facility for and on behalf of the complainant. The Ext.R3 shows that it is an acknowledgement card addressed to State Bank of Travanocore, RECS, Trivandrum. The 1^st opposite party miserably failed to prove that whether these documents are related to the procedure initiated by them for availing ECS facility in this loan account. The legal manager of 1^st opposite party, who was examined as DW1 deposed that, ''ECS {]Imcw ]Ww A¡uWvS-­n \n¶pw t]mbn-«nà F¶v ]e {]mh-iyw ]cm-Xn-¡m-c³ \n§sf kao-]n-¨n-«p-f-f-Xmbn Adn-bm-tam ?(Q)  Adnbmw (A).   \n§-fpsS repayment schedule {]Imcw ]cm-Xn-¡m-c³ EMI AS-¨n-«p-Wvs­S¶v ]d-bp¶p ?(Q) icn-bm-Wv (A).””(page No.9 of deposition).

 

From the admission of DW1, it is very clear that complainant was punctual in his repayment and as and when the ECS was failed, he intimated the 1^st opposite party. But even after proper intimation, 1^st opposite party has not took any steps to find out actually what error is caused in the request of ECS. This is an instance of gross deficiency in service on the part of the 1^st opposite party. Moreover, DW1 has no specific answer to the question put by the learned counsel regarding the realisation of Rs.10,532/- by way of EMI instead of Rs.8352/- actual EMI on 19.1.2017. The witness further failed to give specific explanation regarding the realisation of Rs.8352/- each on 13.4.2015 and 16.4.2015, that is, two EMIs in a month. Likewise, the realisation of Rs.6187/- on 9.10.2015.

 

At the same time, on perusing the reply version of 2^nd opposite party and the deposition of 2^nd opposite party, the Forum found that, the complainant has not approached them directly for activating ECS facility. Evenif the complainant is enlisted in ECS mandate as per the request of 1^st opposite party, it is the liability of the 1^st opposite party to check out whether the ECS formalities are complied or failed. As per the deposition of DW1, when the complainant is enlisted in ECS list and due to the lack of fulfilling the formalities with the opposite party, the ECS mandate will

(cont....7)

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be returned for technical error and the system of the 2^nd opposite party will charge mandate return charges for every return. From the version of 1^st opposite party, it is very clear that 1^st opposite party failed to monitor whether the ECS mandate formalities have been created and completed properly at the 2^nd opposite party bank. No evidence is produced by the 1^st opposite party to convince the Forum that, whether they took proper steps to activate the ECS facility in the loan account.

 

On the basis of above discussion, Forum is of a considered view that, the inconveniences are caused to the complainant from the date of availing the alleged loan is due to the irresponsible attitude of the 1^st opposite party alone. Hence 1^st opposite party alone is liable to compensate the complainant for his mental agony and sufferings.

 

Under the above circumstance, the complaint allowed. 1^st opposite party is directed to close the loan account in question having No.LVCOC00026754963, by receiving the balance principal loan amount only from the complainant and further directed to pay Rs.3000/- as the cost of the complaint, within 30 days from the receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 27^th September, 2019

 

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

 

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

 

 

 

 

 

(cont....8)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - George Maxin.

On the side of the Opposite Party :

DW1 - Vibin M.R.

DW2 - Sujith Menon.

Exhibits :

On the side of the Complainant :

Ext.P1 - loan statement of account of 1^st opposite party.

Ext.P2 - loan account pass book.

Ext.P3 - copy of receipt.

Ext.P4 - demand legal notice.

Ext.P5 - copy of reply given to the District Legal Services Authority.

Ext.P6 - copy of receipts showing loan EMI payments.

Ext.P7 - loan pass book original.

Ext.P8(series) - receipts.

Ext.P9 - loan repayment schedule.

Ext.P10 - demand legal notice dated April 27, 2015.

On the side of the Opposite Party :

Ext.R1 - power of attorney.

Ext.R2 - courier delivery details.

Ext.R3 - copy of acknowledgement card.

Ext.R4 - statement of account of the complainant, which is maintained

with 2^nd opposite party bank.

 

 

 

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT