Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in a few words is that the Complainant Biswarup Roy purchased a Samsung Mobile Phone vide Model No.A50S from the shop of Drishti Optical through finance of O.P. No.1, the Manager, Bajaj Finance Company Limited, 1st Floor, Kohinoor Mansion, Bangchatra Road, P.S. Kotwali, P.O. & Dist- Cooch Behar on 26.10.19 for a price of Rs.20,900/-. The Complainant finally paid on 26.10.19 through his account for Rs.8,040/- as down payment but the O.P. No.1 mentioned instead as Rs.6,000/- towards down payment. Thus the OP illegally deducted Rs.2040/- from the Complainant. As per the loan statement account the O.P. No.1 clearly mentioned the annualized rate of interest as zero percent but received interest from the Complainant. The Complainant had a savings account with the O.P. No.2, the Branch Manager, IDBI Bank Limited, Cooch Behar having savings account No.101710400006354 under which the loan against Mobile is ECS account. Due to Covid-19 there was Lockdown since March, 2020 and as such as per RBI guideline vide No.RBI/2019-20/186 dated 27.03.20, the RBI granted moratorium for three months on payment of all instalments falling due between 01.03.20 to 31.05.20 for all financial institution. But the O.P. No.1 illegally hit the EMI through ECS of 03.04.20, 07.04.20, 13.04.20, 16.04.20, 23.04.20, 28.04.20 and 05.05.20. During the said moratorium period there was shortage of balance in the account of the Complainant. Due to negligence of the O.P. No.1, the O.P. No.2 deducted clearance fine charge on 03.04.20 for Rs.590/- on 08.04.20 Rs.363/-, 29.04.20 for Rs.226.96/-, and Rs.590/- on the same date, Rs.75/- and Rs.145.20 on the same date and Rs.514, total Rs.4,129/-. Despite deduction of said Rs.4129/-, the said amount is not included in the loan account. Due to deficiency in service of O.P. No.1 the clearance charge of Rs.4,129/- was deducted from the Complainant’s account. The Complainant sent SMS to stop EMI on 22.04.20 but the OP did not stop deduction of EMI. In the 1st week of March, 2020, the Complainant informed the matter to the OP but they did not take any step. On 28.05.20 the Complainant sent a written complaint to O.P. No.2 but they did not take any steps. Having found no alternative the Complainant filed a written complaint to CA and FBP Department Cooch Behar against the OP on 24.08.20. Although the O.P. No.2 filed W/S but the O.P. No.1 did not appear during mediation. The Complainant then sent written complaint on 20.06.20 to the O.P. No.1. He again filed the written complaint through registered post on 22.06.20. The aforesaid activities of the OP tantamounts to deficiency in service for which the Complainant suffered heavy financial loss and mental agony. The cause of action arose on 26.10.19 and on subsequent dates lastly on 24.08.20. The Complainant claimed for an award for Rs.4129/-, Rs.2040/- towards extra money received by the O.P. No.1, Rs.50,000/- towards deficiency in service and litigation cost of Rs.10,000/- .
The O.P. No.2 contested the case by denying each and every allegation of the Complainant. The positive defence case of the O.P. No.2 IDBI Bank in brief is that O.P. No.2 is just a banker only. The O.P. No.2 just maintains the S/B account of the Complainant bearing No. 101710400006354. The account of the Complainant contains one ECS in his S/B account being No. 101710400006354 for Mobile loan from the O.P. No.1. As per the complaint petition there is no allegation against the O.P. No.2 since the O.P. No.2 just maintains the savings account of the Complainant. The Complainant was all along aware of the actual State of Affairs and he intentionally suppressed the actual State of Affairs. The present case does not fall within the purview of Consumer Protection Act which is filed just to harass the OP. The O.P. No.2 claimed that the present case is liable to be dismissed with cost.
The O.P. No.1 despite service of notice did not contest the case and as such as per order No.05 dated 07.04.21 the case was decided to be heard ex-parte against the O.P. No.1. However at the fag-end of the case on the last date of argument the O.P. No.1 filed a petition with a prayer to file Vokalatnama and written version but nobody moved the petition and as such as per order No.21 dated 17.01.23 this Commission rejected the prayer of the O.P. No.1. Accordingly, the case was heard ex-parte against O.P. No.1.
The specific case of the Complainant regarding alleged unlawful deduction of money and its rival fact disclosed by O.P. No.2 persuaded this Commission to set up the following points for consideration in order to just and effective disposal of the case.
POINTS FOR DITERMINATION
- Whether the present case is maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
DECISION WITH REASONS
Point No.1.
The O.P. No.1 has not contested the case but the O.P. No.2 in their written version challenged the case on different points touching the maintainability of the case but in course of argument Ld. Advocate for the Complainant did not agitate those points.
However having perused the pleading of the parties and the evidence on the case record the Commission holds that the present case is maintainable. All the parties reside within the jurisdiction of this Commission. The account of disputed money involved in this case as well as the relief claimed is well within the pecuniary jurisdiction of this Commission. Accordingly, the case is maintainable in its present form and prayer subject to entitlement of relief to be decided as per point Nos. 2 and 3.
Accordingly Point No.1 is decided in favour of the Complainant.
Point Nos. 2 & 3.
Both the points are very closely interlinked with one and other and as such these are taken up together for brevity and convenience of discussion.
The Complainant in order to substantiate the case adduced both oral evidence in the form of evidence on affidavit and documentary evidence being Annexure-A to I on behalf of the Complainant.
Annexure-A discloses that the Complainant purchased the disputed Samsung Mobile for a sum of Rs.20,990/- on 26.10.19. Annexure-B is the loan summary as on 14.05.20 wherefrom it is found that the annualized rate of interest is zero percent and down payment against the said purchase is shown as Rs.6,000/-. The Complainant claimed that he paid Rs.8040/- on 26.10.19 as down payment.
The O.P. No.1 could not discard the claim of the Complainant that the O.P. No.1 unfairly deducted Rs.2040/- against down payment. Annexure-E being the pass book of the Complainant Biswarup Roy wherefrom it is found that on 26.10.19 there was an withdrawal of Rs.8040/- which supports the contention of the Complainant that extra money of Rs.2040/- was deducted which was not accounted for.
Annexure-C is the declaration cum guidelines of RBI wherein it was declared inter alia that all lending institutions were permitted to grant a moratorium of three months on payment of all instalments falling due between March, 2020 and May, 2020.
The Complainant filed a copy of the pass book being Annexure-E which reveals that the O.P. No.1 deducted instalments on different dates on 03.04.20, 29.04.20, 08.04.20, 05.05.20 and 28.05.20 which falls within period of moratorium.
Annexure-D is the SMS sent by the Complainant to the OP to stop EMI but the O.P. No.1 did not comply with the said request of the Complainant as per the guidelines of the RBI. So contention of the Complainant that RBI guidelines was not followed by the O.P. No.1 stands well proved.
The Complainant seems to have lodged a complaint to the OP bank on 28.05.20 for refund of money against which O.P. No.2 gave an endorsement that the amount was deducted for dishonour of your request of ECS regarding moratorium of loan during Covid-19, he was requested to contact with the financer. The Complainant demanded Rs.4,129/- from the O.P. No.2.
Although the O.P. No.2 passed an endorsement that the matter relates to the financer but the O.P. No.2 bank as a banker of the Complainant cannot escape the liability, because it is the bank which executes the order of RBI initially. Therefore the O.P. No.2 bank cannot escape its liability. But the O.P. No.2 despite raising the grievance by the Complainant did not take appropriate steps.
It is further found that the matter was moved before the CA and FBP Department for conciliation and settlement. At that time the O.P. No.1 did not appear but the O.P. No.2 advised the FB Department to direct the Complainant to meet with them.
This type of step taken by the O.P. No.1 and 2 also are not as per the provisions of law.
Ld. Defence Counsel for the O.P. No.2 argued that all the major allegation are labelled against the O.P. No.1. The O.P. No.2 just maintains the savings account of the Complainant. There is no specific allegation against O.P. No.2 and as such the case should be dismissed against O.P. No.2.
It is fact that the case is heard ex-parte against O.P. No.1 but the Complainant in sub-para-C and para-18 prayed for relief towards deficiency in service against both the O.P.s and litigation cost against them.
Having assessed the evidence against the specific case of the Complainant through both oral evidence in the form of evidence on affidavit and documentary evidence it is reasonably established and evident that both the O.P.s acted in a manner which is not justifiable in the eye of law.
In the backdrop discussion made herein above vis-à-vis the observation made therein the Commission comes to the finding that the complaint case stands proved against the O.P. No.1 ex-parte and O.P. No.2 on contest.
Point Nos. 2 and 3 are accordingly decided on behalf of the Complainant.
Consequently, the complaint case succeeds.
Hence, it is
Ordered
That the complaint case No. CC/45/2020 be and the same is allowed on contest against O.P. No.2 and ex-parte against O.P. No.1.
The Complainant do get an award for a sum of Rs.4,129/- with up to date interest against O.P. No.2, Rs.2,040/- against O.P. No.1 towards actual money due to the Complainant, Rs.10,000/- towards deficiency in service against O.P. No.1, Rs.5,000/- towards deficiency in service against O.P. No.2 and Rs.10,000/- towards litigation cost against O.P. No.1.
The O.P. No.1 is directed to pay Rs.22,040/- and O.P. No.2 is directed to pay Rs.9,129/- within 30 days from the date of passing Final Order failing which the Complainant shall be entitled to get the interest @ 6% per annum on the awarded money from the date of Final Order till the date of its realization.
The O.P. No.1 is further directed to issue NOC in favour of the Complainant.
The CC case No.45/2020 is accordingly disposed of.
DA to note in the trial Register.
Let a plain copy of this order be supplied to the parties concerned by hand/by post forthwith, free of cost for information and necessary action, if any.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
