This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 12 of the Consumer Protection Act, 1986.
The case of the complainant , in short, is that the complainant purchased a digital mobile phone Vide Model No-J 730 made by Samsung which was purchased from M/S Eureka Computer on 19/02/2018. The price of the said mobile phone was Rs. 19,900/- and the mobile hand set was covered under the insurance policy bearing No. OG-18-2401-9931-00009439 under Bajaj Finserv Ltd. The monthly EMIs for repayment of the said amount of Rs. 2,254/- and the total installments was seven. The said EMIs were taken by the O.Ps by way of ECS from the account of the complainant from State Bank of India, Alipurduar Branch. The completion of the said installments the complainant went to his bank and updated his bank account and found from his bank account that the O.P No. 1 has deducted the excess amount of Rs. 11,200/- from his account. The complainant contacted with the O.P No.1 but O.P No.1 failed to give any satisfactory reply about the said excess deduction amount. After that the complainant went to the office of the O.Ps in several times but they have given various plea about the deduction of the said excess money. Ultimately, on 12/09/2019 O.Ps refused to return the said amount of Rs. 11,200/-. Thereafter, on 17/09/2019 the complainant sent a legal notice to the O.Ps through Registered Post with A/D for his claim but O.Ps have refused to pay the same. Ultimately, the complainant has filed this case of this Commission and praying for Rs. 11,200/- for his claim amount with interest and also claim Rs. 1,00,000/- for his harassment, mental agony and sufferings and also claim Rs. 8,800/- as litigation cost.
The O.Ps have filed the written version and evidence-in-chief. They have denied all the allegations made by the complainant. The specific case of the O.Ps are that after purchased of the said mobile phone through financial help of the O.P No. 1 (Bajaj Finserv Ltd.) was initiated from HDFC STANDARD LIFE INSURANCE COMPANY by availing loan from the O.Ps. The O.Ps further stated that the complainant paid all his EMIs regarding the purchased of the mobile phone but he did not pay the EMIs of the loan amount of Rs. 7,917/- for HDFC STANDARD LIFE INSURANCE. The O.Ps have issued the no objection certificate regarding the purchased of the mobile phone by making payment that EMIs regularly. But the complainant has suppressed that he had availed a group insurance policy from the HDFC STANDARD LIFE INSURANCE COMPANY in the month of November, 2018 via tele binding. O.Ps further submitted that after taking consent of the complainant the premium of the insurance was booked in the name of the complainant as agreed by the complainant and the O.P No. 1 has paid the entire premium of the HDFC Life as a loan sanctioned in favour of the complainant. The caption insurance loan was to be paid via eight EMIs of Rs. 2,240/- each and accordingly the complainant has paid the five EMIs on the due date and remains three EMIs have been bounced due to insufficient fund. The O.P No. 1 further submits that the policy of the insurance was duly sent to the registered email ID of the complainant and also by ordinary post. He further submits that the complainant did not appear before this Commission in a clean hand and he has suppressed that the material facts in this case and accordingly the case is to be dismissed.
We have perused the materials on record meticulously. Considering the above pleadings the following issues are necessarily come out to consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.12 (1)(d)(ii) of Consumer Protection Act, 1986 ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as he prayed for?
DECISION WITH REASON
Considering the nature and character of the case all the points are taken up together for consideration for the sake of brevity and convenience.
Point Nos. 1 and 2:- It is an admitted position that the complainant took a loan from O.P No. 1 for purchasing a mobile phone and the allegation is that the O.P No. 1 has taken all the EMIs of the purchased amount but he has withdrawn excess amount of Rs. 11,200/- which did not return till date. As per provision of Consumer Protection Act, the complainant is a consumer and he is entitled to file this case for his relief. The O.Ps run his business within the jurisdiction of this Commission accordingly, the case is well maintainable.
Point Nos. 3 and 4:- It is an admitted position that the complainant purchased a mobile phone from M/S Eureka Computer amounting to Rs. 19,900/- with the financial help of O.P No. 1 and the O.P No. 1 also initiated one Bajaj All Risk Insurance against the said mobile phone and the total EMIs for the said insurance as well as the loan amount was Rs. 2,254/- and the complainant has repaid the said amount in equal installments and the O.Ps had issued the NOC in this regard for repayment of the loan amount and also the loan amount of insurance.
The disputes started when the complainant found that five installments of Rs. 2,240/- each has been deducted by the O.P No. 1 from his savings bank account. According to the complainant he is not at all aware why the amount was deducted from his account but the O.Ps said that the complainant availed a general insurance from HDFC General Insurance Company Limited and this O.Ps have paid the amount of insurance for which EMIs of Rs. 2,240/- each was deducted from the account of this complainant in five installments and still three installments are unpaid. In this regard the version of the complainant is that it is not within his knowledge that the said group insurance policy was initiated by O.P No. 1. No policy was issued in his name although the O.Ps said that the policy was issued through email. The O.Ps said that the consent was taken over phone. After careful scrutiny of the documents filed by both the parties we find that from the loan statement filed by the O.Ps it appears that one Bajaj All Risk Insurance was started and for that purpose a loan of Rs. 1,847/- was paid by the O.P No. 1 and the complainant has repaid the said amount of the monthly installments. It also appears that the loan amount of the purchased mobile phone of Rs. 19,900/- and the loan tenure was ten installments and out of that Rs. 1,990/- was paid as a initial EMIs and the complainant has paid all the EMIs and the O.Ps admit that NOC has been issued by both the loans. Now the question is whether any life insurance regarding phone binding was availed by the complainant or not. The complainant specifically denied that he did not avail this type of life insurance from HDFC General Insurance Company Limited and he did not give any consent to the O.P No. 1 for payment of premium of this HDFC General Insurance Company Limited of any insurance policy in his favour. Except one statement filed by the O.P No. 1 regarding the loan amount of life insurance phone binding, no documents has been filed from either side that one insurance policy was issued in favour of the complainant from the side of the O.Ps. It is stated that the policy documents were sent through email from the O.Ps. It appears that one Radhika Nedungadi of HDFC sent a email to one Roopesh Sharma regarding sending of policy through email. The emails of the complainant as mentioned in that said email is denied by the complainant that it is not his email ID. From the statement of loan regarding the said life insurance it appears that the registered email ID of the complainant is not mentioned in any documents even the statement filed by the O.Ps. The question is how the email ID has been collected by the HDFC General Life Insurance Company Limited. That apart the copy of the said insurance policy has not been filed by the O.Ps. It is quite astonished that the O.P No. 1 has initiated a Bajaj All Risk Insurance at the time of purchase of the mobile phone and the loan amount of the said insurance has already been paid. Then why another life insurance has been initiated by the O.Ps through HDFC life without the consent ad knowledge of the complainant. Only the plea of the O.Ps that over taking consent from the complainant by tele binding the said insurance has been initiated. We find that it is totally illegal and at the same time unfair trade practice caused by the O.Ps upon the complainant without taking his consent. No policy or it’s connected papers have been filed by the O.Ps to prove their contention. If the policy is issued why the policy deed has not been filed by the O.Ps. We find that if any policy of life insurance is required to be initiated at the time of purchased of the mobile then why the O.Ps did not disclosed the same to the complainant at the time of purchase of the mobile. If any policy of life insurance has been initiated then it was done without consent of the complainant creating unfair trade practice and the O.P No. 1 has no authority to withdraw the amount of Rs. 11,200/- from the savings bank account of the complainant. It is completely unfair trade practice caused by the O.Ps upon the complainant and at the same time the deficiency in service by taking five installments of Rs. 11,200/- in total from the bank account of the complainant without informing him or without taking any consent from him. We find from the evidence on record that complainant is entitled to get his relief which he has prayed for return of the amount of Rs. 11,200/- along with interest, the compensation for his harassment, mental agony and sufferings and litigation cost due to the unfair trade practice of the O.Ps, O.Ps are bound to the return of the excess amount of Rs. 11,200/- which he had withdrawn from the savings account of the complainant along with other compensation.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is allowed on contest against the O.Ps. The complainant do get the award of Rs. 11,200/- for excess amount withdrawn by the O.Ps regarding the alleged life insurance phone binding of HDFC Life Insurance along with 6% interest Per Annum from the date of filing of this case and till the realization of the money. The complainant is also do get an award amounting to Rs. 50,000/- as compensation for his mental agony and sufferings and also Rs. 8,000/- as his litigation costs; total decreetal amount of Rs. 69,200/- (Sixty Nine Thousands Two Hundred Rupees Only) excluding interest. The O.Ps are hereby directed to pay the decreetal amount along with the interest upon the return amount of Rs. 11,200/- as stated above till the payment is made to the complainant. The O.Ps are directed to the pay the said award to the complainant within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
