This appeal is directed against the final order of Ld. DCDRF, Siliguri dated 09.08.2017 in CC NO. 71 of 2015. The C.C. No. 71 of 2017 was registered by one KCP Agarwal against. Branch Manager IDBI, Siliguri, which was dismissed on contest and said complainant registered the appeal before Hon’ble SCDRC at Kolkata and the said appeal was reassigned here.
The consumer complaint case in brief is that the complainant is running the business of oil distribution for earning his livelihood in the name and style "M/S Joy Service Station" and also used to maintain its account with HDFC Bank, State Bank of India and also swap machine of the said bank. In course of his business, the OP IDBI bank by its letter dated 10.09.2010 approached the complainant and offered to provide the different banking services and in view of personal request of the OP bank through its authorized officer, the complainant opened one bank account with the OP bank after closing all bank accounts as maintained with said other banks. In the month of January, 2012, the complainant found that the OP bank has started to debit the account of the Complainant on different pretext and on different heads without any written information to the complainant and accordingly the complainant by a letter dated 09.01.2012 requested the OP to reverse the said entries by crediting the said amount which the OP bank has started to debit in the account of the complainant since January, 2012. Even after receipt of the said letter the OP bank had not stopped to debit the account and neglected to reverse the said entries which were already debited in the account of the complainant. Complainant again sent another letter dated 12.07.2012 to the OP bank and categorically stated that Op has debited a sum of Rs.1.30 lacs (Approx.) from January, 2012 to May, 2012 and then the OP bank gave assurance to the complainant to solve the matter within June, 2012 but neither the OP credited the said amount nor solve the matter in any way.
On perusal of the bank account the complainant it is found that the OP bank has debited a sum of Rs.375/- in January, 2012, Rs.88,107.99/- in February. 2012, Rs.25,318/- in March, 2012 and Rs.6,004/- in between April, 2012 to January, 2013 totaling a sum of Rs.1,20,804.99/-.
It has been asserted by the complainant that at the time of opening the bank account, the OP bank categorically told the complainant that it would not debit the account of the complainant in any way on any head, but the OP bank has debited the account of the complainant to the tune of Rs.1,20,804.99/ without giving any information in any way. The complainant is legally entitled to get the reverse of the said entries which the OP bank has unauthorizedly debited form the account of the complainant since January, 2012 onwards together with interest as accrued thereon. Accordingly, the complainant sent one letter dated 18.07.2013 to the OP bank through his lawyer Sri S. K. Mitruka through registered post with A/D and soon after the receipt of the said legal notice, the OP bank contacted with the complainant through its authorized officers and asked the complainant to wait for some more time on the ground of auditing work of their accounts and assured the complainant to reverse the said entries in the said bank account of the complainant and/or to refund the said amount separately by issuing a banker's cheque positively within the period of the financial year i.e., 31 March, 2014 but the OP did not refund the said amount to the complainant even within 31 March, 2014. Such act on the part of the delinquent officials of OP is unjustified and unreasonable and the OP bank has been found deficient and negligent in the matter of performance of work and services. The complainant has been harassed without having any cause and suffered mental pain and agony due to such negligent and deficiency of service on the part of the OP and OP had/has also been found involved in unfair trade practices and accordingly the complainant has filed the instant case against the OP bank with a prayer to direct the OP to credit the bank account of the complainant for payment of a sum of Rs.1,20,804.99/- towards the refund of the amount debited and further a sum of Rs. 1,00,000/- towards deficiency in service and negligence and harassment and further a sum of Rs.50,000/- for mental pain and agony and litigation cost.
The OP entered appearance and contested the case by filing a written version wherein the material averments made in the complainant have been denied and it has been contended inter-ala that the instant case is not maintainable. It has been contended by the OP that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 under the OP and therefore not entitled to come before this Forum for any relief against the OP. It has been further submitted by the OP that the current account vide no.182102000009638 under scheme Code RCGEN maintained by the complainant in the name of his proprietorship business with the OP was opened in the year 2010 on being satisfied with the terms and conditions as applicable in respect of maintaining the said account and in respect of other operational aspect and on 11.01.2012 the complainant requested the OP to upgrade the said account as he has been able to maintain the stipulated average quarterly balance of Rs. 10,00,000/- only as applicable under scheme Code RCSPL and considering the request of the complainant, account was duly upgraded to scheme code RCSPL but since the time of up gradation of the aforesaid account to shrine Code RCSPL, the complainant failed to maintain the average quarterly balance and therefore as per rules, the alleged amount has been debited from the account of the complainant. It has been further submitted by the OP that OP is guided by its own rules as a financial institution and also the rules and regulations provided by RBI and since the date of up gradation of the account of the complainant to scheme code RCSPL the complainant failed to keep his words in maintaining the average quarterly balance as applicable and as per the rules the alleged amount has been debited from the aforesaid account of the complainant. It has been further submitted by the OP that at the time of opening as well as up gradation of the account the complainant was in sufficient knowledge that the required average quarterly balance in his account shall always have to be maintained to avoid any short of debutante from his account for shortfall of average quarterly balance but he failed to maintain the average quarterly balance and as such he is not entitled to get any relief as claimed for and the instant case is liable to be dismissed.
Ld. Forum after recording evidences and on the basis of evidences, documents, and hearing the case had passed the impugned Judgement by point wise and came to a conclusion that the complainant is making his income in the form of commission from I.O.C. by commercial activities and as such he is not consumer as defined is Sec 2(I)(d) of CP Act, 1986.
Ld. Forum further observed that after the letter dated 11.01.2012 addressing to the bank, the complainant was abiding himself with the schedule of facilities to be withdrawn in the average balance in the current A/C could not be maintained in two consecutive quarters.
Being aggrieved with the final order, the appeal follows on the grounds that the observation of the Ld. Forum was wrong, misconception of Law without appreciation of facts and circumstances.
In the appeal, Mr. S. Mitruka was represented the appellant while Ld. Advocate Mr. D. Bhattacharya has represented the respondent at the time of hearing.
Decision with reason
Admitted position is that on the basis of offer letter of respondent bank dated 10.09.2010, the appellant as local distributer of I.O.C., open the current A/C and in this offer letter, besides other facilities, the bank assured the appellant “No average quarterly balance amount system”. In sprite of such assurance the bank started to debit cash deposit charge from the said current A/C, since January, 2012 for not maintain minimum average balance amount in the account.
Ld. Advocate of the complainant by siting some Judicial decision
List of citations submitted on behalf of the appellant above named: -
- 2022 Live Law (SC) 197.
- (2020) 12 Supreme Court cases 235: 2019 SCC online SC 1506.
- (1995) 3 Supreme Court cases 583.
- I (2015) CPJ 597 (NC)
- IV (2009) CPJ 3(SC)
Makes argument that the appellant/complainant earns his livelihood by doing this business as a proprietor of M/S. Joy Service Station. It is in the course of his said, that the opposite party bank had approached and offered the appellant/complainant for different banking services by its letter dated 10.09.2010 assuring the appellant/complainant that the opposite party bank would not debit the said account on any head. It is established law that “earning livelihood” is a case of an exception to the exception of 'commercial purpose in the definition of expression consumer under the Consumer Protection Act. 1986 as explained in detail below. The Ld. Court failed to appreciate the argument of the appellant/complainant or determine on the basis of the facts and circumstances of the case and on the basis of evidence whether the appellant/complainant is a consumer under the Consumer Protection Act, 1986.
It is also submitted that the Ld. Court has erroneously recorded that the appellant/complainant had suppressed material facts particularly the letter dated 11.01.2012 by virtue of which the appellant/complainant allegedly requested the OP bank to upgrade the disputed account under the scheme Code RCSPL for availing certain special facilities. It is submitted that the Ld. Court could not have taken the argument that any material facts were suppressed by the appellant/complainant when no such plea was averred by the opposite party bank anywhere in its written version.
The Ld. Court also failed to appreciate that the letter had no relevance to the proceedings before the Ld. Court and being immaterial it was not produced before the Ld. Court by the appellants complainant. The charges debited by the opposite party bank, as evident from the bank statement of the appellant/complainant fall under Cash Handling Charges, RTGC Charges and have no bearing on the alleged up-gradation of the account of the appellant/complainant.
The Hon'ble Supreme Court of India has consistently taken the view that "earning livelihood is a case of an exception to the exception of commercial purpose" in the definition of expression 'consumer' under the Consumer Protection Act, 1986.
That the explanation to Section 2(d)(ii) creates exceptions to what qualifies as commercial purpose. It states "For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
It is submitted that the Ld. DCDRC failed to take into account that the first letter for erroneous deductions on the part of the opposite party bank was sent by the appellant/complainant to the opposite party bank on 09.01.2012 i.e., before the letter dated 11.01.2012. The Ld. DCDRC had a duty to enquire why such charges were debited from the account of appellant/complainant before 11.01.2012 but it failed to do so.
The charges to the tune of Rs. 1,20,804.00/- debited from the bank account of the complainant maintained by the opposite party bank were illegally and wrongfully charged to the complainant by the opposite party bank and therefore amounted to deficiency in service?
It is submitted that the opposite party bank has started to debit the account of the appellant/ complainant on different pretexts and different heads, without giving an explanation, to the appellant/complainant since January 2012 to the tune of Rs.1,20,804.99/-. The appellant/complainant had sent a letter dated 09.10.2012 and 12.07.2012 to the opposite party bank requesting to reverse the said entries by crediting the said amount which the opposite party bank had erroneously debited. The perusal of the offer letter dated 10.09.2010 shows that the facilities of the current account are free of charge. No explanation has been provided by the opposite party bank for debit of such charges from the account of the appellant/complainant unilaterally by the opposite party bank.
Ld. Advocate of the respondent/Bank in counter argument mentioned that in the present appeal, it appears that the appellant/complainant is the proprietor of "M/S Joy Service Station", the Indian Oil Distributors. The oil products are being supplied by the Indian Oil Corporation to the appellant/complainant for the purpose of reselling the same and not for the appellant's /complainant 's own consumption. The complainant is also earning profit on the resale of the oil though it is in the form of commission fixed by the corporation from time to time.
Therefore, the appellant/complainant is making money in the form of commission which the Indian Oil Corporation is paying to it. So, the appellant/complainant would not be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
Issue no.2 and 3: Arguments of the Respondent /OP. Bank.
That the appellant/complainant maintaining the said commercial account with the respondent/OP bank and in respect of operational aspect letter dated 11.01.2012 issued by the appellant/complainant being the sole proprietor of his business vide letter 11.01.2012 requested the respondent/OP bank to upgrade the appellant/complainant’s said account as he has been able to maintain the stipulated balance as applicable in maintaining the current account vide Account No.1821000009638 under scheme Code RCGEN, and by that letter assured the respondent/OP. bank that the appellant/complainant shall be maintaining the stipulated average quarterly balance of Rs. 10,00,000/- only applicable under scheme Code RCSPL.
That the respondent/Op. bank considering the request of the appellant/complainant, the aforesaid account was duly upgraded to scheme Code RCSPL.
That the appellant/complainant totally suppressed this fact before the Forum as well as in the complaint petition and also as well as in the evidence.
That the point of argument of the respondent/OP bank is that since the time of upgradation of the disputed account of the appellant/complainant to scheme Code RCSPL the appellant/complainant failed to maintain the average quarterly balance as applicable and therefore, the respondent/OP. bank as per its own rules as a financial institution and also the rules and regulation provided by RBI has debited the alleged amount from the account of the appellant/complainant.
That the appellant/complainant has failed to maintain the average quarterly balance under scheme Code RCSPL with revised terms and conditions with effect from January 1, 2012 and as a result the respondent/OP. bank debited the alleged amount from the account of the appellant/complainant.
After hearing both sides, it has established beyond any shadow of doubt that by virtue of offer letter dated 10.09.2010, the respondent bank did not charge any money till 11.01.2012 for not maintaining average quarterly balance in the said current A/C of the appellant.
But as soon the appellant approved the bank by letter to upgrade the account to scheme code RCPCL and by virtue of entering into the scheme, that special facility to exemption “No average quarterly Balance maintenance system” stood withdrawn.
The complainant/appellant argued, that even before the said upgradation dated 11.01.2012, Rs. 1.30 lacs(approx.) was debited as charge and the same was intimated to the bank vide letter dated 09.01.2012 shows the bank’s unlawful apportionment of charge and requested to make a reverse credit was not properly attended.
This argument of the appellants does not cut much ice as because the appellant, by advocate is letter dated 18.07.2013 concedes the fact (Part-3) that the bank has started debit the account from the month of January, 2012.
So, the Ld. Forum has rightly observed that at the time of upgradation of the account (11.01.2012), the complainant was well aware that the required average quarterly balance in his account shall always have to be maintained to avoid any short of debutante from his account for short fall of average quarterly balance. Now he can not avoid the said burden.
The observation of Ld. Forum that due to commercial activity on the part of the appellant, he is not a consumer as provision of Sec 2(I) (d) of CP Act is not appreciable in law as because, there was no direct dealing of goods between the appellant and respondents. Bank was mere giving service through which the transaction of Oil price is held between a distributer and a producer of fuel. Rather, the appellant availed the service of bank for maintaining his livelihood. So, he is a bonafide customer of bank and a good consumer as defined in Sec 2(I) (d) of the Act, 1986.
However, in over all view, the main contention whether there was any deficiency of service on the part of respondent bank or any unfair trade practice on its’ part remained unproved.
Thus, the appeal has lost its merit.
Hence it is ordered
That the appeal be and the same is dismissed on contest without cost.
Let the order be communicated to the Ld. DCDRF, Siliguri.
