Tamil Nadu

South Chennai

CC/144/2016

M/s.S.Balaji - Complainant(s)

Versus

The Manager, HDFC Bank Ltd - Opp.Party(s)

S.Baskar & Govindarajan

27 May 2022

ORDER

Date of Complaint Filed : 22.04.2016

Date of Reservation      : 06.05.2022

Date of Order               : 27.05.2022

 

                                            DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                 : PRESIDENT

                      THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                  :  MEMBER  I 

                   THIRU. S. NANDAGOPALAN., B.Sc., MBA.,             : MEMBER II

 

CONSUMER COMPLAINT No.144/2016

FRIDAY, THE 27^th DAY OF MAY 2022

Mr. S. Balaji,

S/o. R. Srinivasan,

Flat No.1, BFI Srinivasa Apartments,

Thirumalai Main Road,

Pammal,

Chennai – 600 075.                                                                                                              ... Complainant                  

 

..Vs..

1.The Manager,

   HDFC Bank Ltd.,

   Pallavaram Branch,

   Pallavaram,

   Chennai- 600 043.

 

2.The Manager (Credit Cards),

   HDFC Bank Ltd.,

   L.B Road,

   Thiruvanmiyur,

   Chennai – 600 041.                                                                                                      ...  Opposite Parties

 

******

Counsel for the Complainant            : M/s. S. Baskar

Counsel for the Opposite Parties       : M/s. T K M Sai Krishnan

 

        On perusal of records and after having heard the oral arguments of the Opposite Parties and having treated the written arguments of the Complainant as oral  arguments, we delivered the following:

ORDER

Pronounced by the Member Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to jointly pay a sum of Rs.1,50,000/- for his hardship and mental agony and directing the 1^st Opposite Party to pay a sum of Rs.50,000/- towards the refund amount which was taken by the party of the 1^st Party bank from his credit card account and a sum of Rs.10,366.85p transferred from his S.B Account to the Credit Card Account, totalling a sum of Rs.60,366.85/- and directing both the Opposite Parties to pay a sum of Rs.10,000/- towards cost of the complaint.

2.     The averments of Complaint in brief are as follows:-

The case of the complainant is that he is a physically Handicapped paraplegic person. He opened a S.B. Account No.20501930000364 with the 1^st Opposite Party and the 1^st Opposite Party elaborated him about the benefits of availing the HDFC Life Insurance Policy and also informed him that since he has transactions with the 1^st Opposite Party Bank could avail the HDFC Bank Credit Card with which he could utilize the credit Card for Premium amounts for which transactions so affected would carry no interest. He took the HDFC Life Insurance Policy as advised by the said representative thereof and signed the HDFC Credit Card forms of the 1^st Opposite Party Bank. Thereafter the 1^st Opposite Party Bank issued a Credit Card Bearing No.5241111000820434.  He also took an Insurance Policy of 1^st opposite party Bank bearing Policy No.15549272 dated 09.11.2012. The half yearly premium payable at Rs.50,000/- from the date of commencement of policy the sum assured was Rs.10,00,000/- and the Policy term was for the period of 10 years.  The first premium of monthly EMI of Rs.8333/- was taken from his credit card and he paid for six months.  He met the 1^st Opposite Party’s Pallavaram Branch (Persona in-Charge) in person and instructed him not to take the second premium instalment for the Insurance Policy from his Credit Card and he also called upon Ms.Vennila of the 1^st Opposite Bank and informed about the same. In spite of informing the 1^st Opposite Party Bank in person and also through phone the 1^st Opposite Party Bank has wantonly deliberately taken a sum of Rs.50,000/- for the insurance policy for the second premium instalment (Second half yearly payment) from his credit card account and also transferred a sum of Rs.10,366.65p from his S.B.A/c. No.20501930000364 to his credit card account on 24.01.2014 without any prior intimation or notice given to him, being aggrieved, he lodged a police complaint before the Inspector of Police, Pammal, Chennai – 600 075 and a CSR No.35/14 dated 29.04.2014 was issued and the same was pending for enquiry. The 1^st Opposite Party Bank on coming to know about the police complaint, issued a false and mischievous notice for their wrongful gain through their counsel dated 07.11.2014, to which a fitting reply notice dated 21.11.2014 which was received and acknowledged by the counsel of the 1^st Opposite Party bank, for which a rejoinder notice dated 08.01.2015 was sent by the Counsel for the 1^st Opposite Party bank with baseless allegations and called upon him to pay the sum of Rs.58,106.58p. He once again received a notice dated 16.11.2015 from the Counsel for the 1^st Opposite Party bank calling upon him to pay the sum of Rs.67,435.05p at 18% per annum. As he had paid the first half of the six months EMI amount and thereafter since he was not desirous of availing the Insurance Policy premium and also not only intimated but also instructed the 1^st Opposite Party bank to desist from taking any amount from his credit card account or from his S.B. Account but, whereas the 1^st Opposite Party has withdrawn the sum of Rs.10,366.85p and transferred to his credit card account, when previously the 1^st Opposite Party bank had debited the sum of Rs.50,000/- from his credit card account, without giving him prior notice/intimation which is in gross violation of the banking rules practiced throughout the world. The 2^nd Opposite Party bank to who is having its registered office at L.B.Road, Thiruvanmiyur, Chennai – 600 041 having miserably failed to take action upon the grievance of the complainant is also jointly and severally liable to pay compensation to the Complainant. Due to the negligence act of both the Opposite Parties he was not only forfeited the sum of Rs.60,366.85/- illegally on account of which he was put to loss, untold hardship him being a handicapped person and misery thereon, his rights were reserved and he established his claim there was deficiency in service by the act of both the Opposite Parties Bank on account of which he was put to mental agony. Hence this Complaint.

4. Written Version filed by the Opposite Parties in brief are as follows:-

        The Complainant had voluntarily applied for a Credit Card and based on the said application a credit card bearing Number 5241111000820434 was issued to him. The Complainant had used the said credit card in various

retail transactions but failed to pay the due amount on the schedule date. Further the Complainant had failed to pay even the minimum amount due as prescribed in the monthly statement of accounts of the said credit card. In such event as per the card member agreement charges shall apply for such non-payment of dues within the schedule dates. Further submitted that the HDFC bank Ltd is a separate legal entity from HDFC Life insurance Co Ltd, in such event HDFC life insurance Co Ltd has to be implicated as a necessary party to this complaint, but the Complainant for the reason known to him failed to join HDFC life insurance Co Ltd as a party to this complaint, therefore the complaint had to be dismissed in limini for non-joinder of parties. The Complainant had agreed in his complaint that he had availed the insurance policy and also given instructions to the Opposite Parties Bank to pay the insurance premium through the credit card bearing Number 5241111000820434. Based on the instructions given by the Complainant the insurance premium of Rs.50,000/- was paid from the credit card account by the Opposite Parties bank to the Insurance company in one single payment. Further he had agreed to pay the said premium amount to the Opposite Parties bank credit card account by six equated monthly instalments of Rs.8333/- each. The Complainant with his complete knowledge, had availed the insurance policy from HDFC life insurance Co Ltd and instructed the Opposite Parties Bank to make the payment of the premium amount from the said credit card. Further the Insurance Policy document containing 26 pages had been served, but the Complainant had filed only the second page of the policy document alone and failed to file other pages containing terms and conditions, would show the dishonest intention to mislead this Commission for wrongful gain. Only based on the instructions given by the Complainant, the premium had been paid by them to HDFC Life Insurance CO Ltd and denied the instructions given by the Complainant not to pay the Second premium amount of Rs.50,000/- to the said Insurance Company. They had issued notice dated 09.01.2014, 01.06.2014 and 13.08.2014 to the Complainant with respect to lien of the said amounts of Rs.10,366.85p, Rs.736.01p and Rs.5220.01p respectively as envisaged in section 171 of Indian Contract Act. The said amounts were set off by the Opposite Parties bank for the non-payment of dues in the above mentioned credit card of the Complainant.

        The letter dated 11.09.2013 was never communicated to the Opposite Parties bank as alleged by the Complainant, further the complainant had not produced any proof, such as proof of dispatch or proof of service of the said communication letter dated 11.09.2013.

        The complaint was filed by the Complainant before the Inspector of Police, Pammal, and since there was no proper evidence in support of the Complainant, the concerned police officers had refused to take any further action which clearly establishes the fact that the Complainant after trying all arm twisting tactics to evade the legitimate payments due to the Opposite Parties bank. A notice dated 07.11.2014 was sent to the Complainant, demanding a sum of Rs.55,053.51p against the credit card for which, the complainant replied with  a  notice dated 21.11.2014. The Opposite  Parties

bank had promptly replied to the Complainant’s notice dated 21.11.2014. As the Complainant had not paid six months EMI amount on the schedule date and hence appropriate charges were applicable as per the terms and conditions of the Card Member Agreement/card usage guide. Further the said amount of Rs.10,366.85p had been lien marked and set off by the Opposite Party bank as envisaged under section 171 of Indian contract act. Moreover the Complainant had to approach HDFC life insurance Co Ltd to cancel the life insurance policy within a stipulated time as per the terms and conditions envisaged in the life insurance policy agreement. The Complainant wantonly not impleaded the HDFC life insurance Co Ltd and further not attached the terms and conditions of the insurance policy, so that it was convenient to confuse and mislead this Hon’ble Commission for the Complainant’s wrongful gain. Further the Opposite Parties bank had at all times communicated notices as per law to the complainant before setting off the said amounts. Further the Complainant with an ulterior motive to evade the payment of the lawful dues payable to the Opposite Party Bank initiated this complaint. Hence the complaint is to be dismissed.

5.      The Complainant filed his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-11 were marked. The Opposite Parties filed their Proof Affidavit and Written Arguments. On the side of the Opposite Party, documents Ex.B-1 to Ex.B-6 were marked.

6.  Points for Consideration

1. Whether the complaint is to be dismissed for non joinder of parties?

2. Whether there is deficiency in service on the part of the Opposite Parties?

3. Whether the Complainant is entitled for reliefs claimed?

4. To what other reliefs the Complainant is entitled to?

Point No.1 :-

Heard the arguments on both sides and perused the Exhibits of documents filed by either side. The question arose before this Commission is to determine whether the Complaint is to be dismissed for non joinder of parties, on the Contention raised by the Counsel for Opposite parties as the 1^st Opposite Party, HDFC Bank Ltd is a separate legal entity from HDFC Life insurance Co Ltd, hence HDFC life insurance Co Ltd would be implicated as a necessary party to this complaint, but the Complainant had failed to join HDFC life insurance Co Ltd as a party to this complaint, hence the complaint had to be dismissed in limini for non-joinder of parties.

From reading of the Complaint, it is clear that the 1^st Opposite Party Bank had paid the second premium of Rs.50,000/- to HDFC Life Insurance Co Ltd, towards his Insurance policy and the 1^st Opposite Party had debited a sum of Rs.10,366.85p by the 1^st Opposite Party on 24.01.2014 from his SB account and credited to the 2^nd Opposite Party’s account towards his credit card dues.

As admittedly, the Complainant had taken Insurance Policy of HDFC Life Insurance Co Ltd which is a separate legal entity from the 1^st Opposite Party Bank, the  disputes  raised  by  the  Complainant  in  the complaint  is

claiming wrongful debit made by the 1^st Opposite Bank from his Savings Bank account maintained with the 1^st Opposite Bank and claiming wrongful transfer made by the 2^nd Opposite Party to HDFC Life Insurance Co Ltd, hence we are of the considered view that HDFC Life Insurance Co Ltd is not a necessary party to the complaint and the complaint is not defected by Non Joinder of Parties and the Complaint filed by the Complainant against the Opposite parties is maintainable.

Point No.2 :-

The Contention of the Counsel for Complainant is that in spite of the instructions given in person orally, over phone and by his letters dated 11.09.2013 and 14.01.2014 (Ex.A2) to the 1^st Opposite Party Bank, the 1^st Opposite Party Bank had paid the second premium of Rs.50,000/- from his credit card and paid to HDFC Life Insurance Co Ltd, towards his Insurance policy against his instructions and also had debited a sum of Rs.10,366.85p by the 1^st Opposite Party on 24.01.2014 from his SB account and credited to the 2^nd Opposite Party’s account towards his credit card dues, without any prior intimation or notice to the Complainant, the act of the Opposite Parties are in gross negligence of deficiency of service.

The Contention of the Counsel for the Opposite Party is that only based on the instructions given by the Complainant, the premium had been paid by them to HDFC Life Insurance CO Ltd and denied the instructions given by the Complainant not to pay the Second premium amount of Rs.50,000/- to the said Insurance Company.

In this regard, a letter dated 11.09.2013 though averred in the complaint has not been produced and filed by the Complainant before this Commission and as rightly pointed by the Opposite parties Counsel the said letter dated 11.09.2013 was denied as never communicated to the Opposite Parties bank as alleged by the Complainant and contended that no proof of dispatch or proof of service of the said communication letter dated 11.09.2013, has been produced and filed before this Commission, as the said letter was not  produced as evidence before this Commission, the letter dated 11.09.2013 cannot be relied upon by this Commission.

But the Complainant had marked Ex.A2 a Letter dated 14.01.2014 to the 1^st Opposite Party Bank, though it is not averred in complaint, the same was allowed to be marked by the Opposite parties, but Ex.A2 though marked does not contain the signature of the Complainant and no proof for despatch or delivery to the 1^st Opposite party, hence the same could not be relied upon by this Commission. Though EX.A2 a letter dated 14.01.2014 issued after giving credit to the insurance policy from his credit card, but the amount of Rs.50,000/- towards his insurance policy was found to be transferred on 10.05.2013, as found in Ex.B2 (page no.15 of the Typed Set of Documents filed by the Opposite Parties, being the Credit Card Statement of the Complainant running till page No.33), hence the Complainant had failed to prove when he had approached and requested the 1^st Opposite party Bank not to transfer money to his Insurance policy from his credit card and further  the  debit of Rs.10,366.85p  made  on  24.01.2014  by  the 1^st

Opposite Party to the 2^nd Opposite Party’s account, as Ex.A2 is decided as not a valid document to be considered and as the Complainant had failed to prove when he had approached and requested the 1^st Opposite party Bank not to transfer money to his Insurance policy from his credit card, as rightly contended by the Counsel for the Opposite parties that any instruction alleged to have been made by the Complainant should be in writing and otherwise not valid relying on Ex.B3, being the notice dated 09.01.2014 the proof of service, found to be issued prior to Ex.A2, it was intimated that the Bank had placed a ‘Hold on Funds’ in the captioned HDFC Bank A/c by exercising the ‘Bankers lien and Right of Setoff’. Further it is rightly contended by the Opposite Parties that if at all the Complainant was not willing to continue his insurance policy he would have approached the Insurer and would have surrendered his policy with the insurer before the second premium commenced and  the Opposite Parties had-acted genuinely following the banking procedure, hence we are of the considered view that the Opposite Parties had not committed any deficiency of service to the Complainant. Accordingly, Point No.2 is answered.

Point No.3 & 4 :-

As we have discussed and decided point no.2 as against the Complainant that the Opposite Parties had not committed any deficiency of service. we are of the considered view that the Complainant is not entitled for the reliefs claimed in the complaint or for any other relief/s. Accordingly, point No.3 & 4 are answered.

In the result the Complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 27^th day of May 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

 List of documents filed on the side of the Complainant:-

Ex.A1	-	Disability Certificate issued by the Government Peripheral Hospital Chennai
Ex.A2	14.01.2014	The letter given by the complainant to the Manager HDFC Bank, Pallavaram Branch.
Ex.A3	10.05.2014	Complaint given to the Inspector of Police, Pammal, Chennai – 600 075.
Ex.A4	29.05.2014	CSR given by Inspector of Police, Pammal, Chennai – 600 075
Ex.A5	07.11.2014	Notice given by the 1st Opposite Party counsel to the Complainant
Ex.A6	21.11.2014	Reply notice given to the 1st Opposite Party counsel
Ex.A7	26.11.2014	Acknowledgment card received by the 1st Opposite Party counsel
Ex.A8	08.01.2015	Reply notice given by the 1st Opposite Party counsel to the Complainant’s counsel
Ex.A9	16.11.2015	1st Opposite Party counsel notice issued to the complainant
Ex.A10	09.11.2012	HDFC LIFE INSURANCE POLICY
Ex.A11	06.01.2014	Complainant’s Bank Statement

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	-	Credit Card Application Form
Ex.B2	-	Credit Card Statement of Accounts
Ex.B3	-	Legal Notice dated 09.01.2014
Ex.B4	-	Legal Notice dated 09.06.2014
Ex.B5	-	Legal Notice dated 13.08.2014
Ex.B6	-	HDFC Life Insurance Policy Agreement

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT