Tamil Nadu

South Chennai

375/2008

R.T.Gopan - Complainant(s)

Versus

The Manager, ICICI Bank Ltd & another - Opp.Party(s)

S.J.Jagadev

19 Jan 2017

ORDER

                                                                        Date of Filing :   23.09.2008

                                                                        Date of Order :   19.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II          

C.C.NO.375/2008

THURSDAY THIS  19^th DAY OF JANUARY 2017

 

Mr. R.T. Gopan,

S/o. Late R. Thirumalai,

Plot N.925 37^th Street,

Korattur, Chennai 600 080.                                .. Complainant.

 

                        ..Vs..

1.  The Manager,

ICICI Bank Limited,

2^nd Floor, East Wing,

No.24, South Phase,

Ambattur Industrial Estate,

Chennai 600 058.

 

2. The Manager,

ICICI Bank Limited,

46, Gandhi Mandapam Road,

Kotturpuram,

Chennai N.A.                                                 ..Opposite parties.

 

Counsel for the Complainant           :  M/s. S.J.Jagadev & another   

Counsel for the opposite parties      :  M/s. Dev, Sai & Shaffiq Associates.  

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to recall the demand notice and also to pay a sum of Rs.2,00,000/- as damages for mental agony and hardship and
Rs.10,000/- towards cost of the complaint.

1. The averment of the complaint are brief as follows:

         The complainant is the customer of opposite party’s bank having following credit cards

1. ICICI card bearing No.9401-2701-4798-5001
2. ICICI card bearing No.4477-4604-2963-9000
3. ICICI card bearing No.4477-4652-1299-8000

The 2^nd opposite party issued demand notices dated 9.7.2007 and 20.8.2008 demanding Rs.98,760/- with interest from the complainant, as if the complainant is co-applicant for a personal loan of Rs.1,00,000/- availed by one Albert Nadan who is not known by the complainant.    The complainant never signed as co-applicant in any loan application submitted by the said Albert Nadan for availing any loan from ICICI bank.  

2.     The complainant sent his lawyer’s reply dated 24.8.2007 to the above referred demand notices issuing by the 2^nd opposite party clearly stating that he is no way connected with loan taken by one Albert Nandan and not to make any such further illegal demand.   Inspite of the said reply again on 10.10.2007 the 2^nd opposite party issued another demand notice to the complainant demanding the very same amount.  It was followed by lawyer’s notice dated 28.6.2008 issued on behalf of the 1^st opposite party reiterating the very same demand.   The complainant inturn sent his lawyer’s reply dated 14.7.2008 denying any liability and calling upon the 1^st opposite party to recall the said demand notice.  

3.     The complainant submits that the Marketing staff of the said Bank had obtained previously signatures in various documents when this complainant applied for credit card and also loans.   It is probable that such documents are now being misused to connect the complainant as co-applicant to the personal loan taken by Albert Nadan, who is a complete stranger to this complainant.    The opposite party have adopted unfair trade practices which amounts to deficiency of service and unfair trade practice.  Hence the complaint.

4. Written Version of  opposite parties are  in brief as follows:

           These opposite parties denies all the allegations that are contents of the complaint filed herein except such facts that are specifically admitted.   As per the banking procedure a co-applicant need to be introduced by the person who is applying for the personal loan.  In the instant case Mr.Albert Nadan who was the principal applicant introduced the complainant as a co-applicant and both had submitted an application dated 12.12.2006 duly singed by the complainant as a co-applicant and Mr.Albert Nadan as applicant to the loan.   The application  and other documents available with the bank clearly establishing the fact that the complainant had affixed his signature as a co-applicant in the loan account bearing No.LPCHE00008975766.   The terms and conditions under which the said personal loan was issued to Mr.Albert Nadan is a known fact to the complainant and he cannot escape from his liability as a co-applicant by filing false and frivolous complaint before this Hon’ble forum.  

5.     After availing the loan, Mr.Albert Nadan was grossly failed and neglected to pay the agreed EMI within the due date Mr.Albert Nadan and the complainant had been duly informed on numerous occasions about the default.  Inspite of receiving repeated request and demand both Mr.Albert Nadan and the complainant evaded the payments under one pretext or the other.   The documents which are available with the bank along with the photograph and signatures of the complainant would clearly establish the fact that the complainant had stood as a co-applicant and suppressed the fact in order to derive illegal and unlawful advantage in the present complaint before this Hon’ble forum.   Hence the present complaint is devoid of merits and liable to be dismissed with an exemplary cost of the complainant. Had the complainant felt his application was misused by Mr.Albert Nadan the complaint ought to have filed criminal complaint before the Jurisdictional police for appropriate action.  In the present case no such legal remedies either taken or contemplated by the complainant for the reasons known to him.   The bank is having a lawful and statutory right to claim its dues from the principal debtor and the co-applicant jointly or severally.  

6.     It is a known fact that the complainant trying to find one reason or the other in order to escape from the liability in the loan account bearing No.LPCHE00008975766.    As it is settled principle that there should be evidence on record to establish any loss or injury alleged to have been suffered by the complainant.  Under sec.14 (1) (d) of the Consumer Protection Act, the term compensation means equivalence and the award of compensation by the forum has to be based on well recognized principles governing the quantification of loss or injury suffered to assess compensation and not arbitrarily and also it has to be established whether the loss alleged was direct result of negligence or whether it is remote.  In the absence of such proof the claim cannot be sustained and has to be rejected totally.   Further the complainant initiated these proceedings with the sole intention to defeat the process of law and evade the payments.   The bank have never committed any deficiency in service as alleged by the complainant.  Hence this complaint is liable to be dismissed.      

7.    In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 marked.  Proof affidavit of opposite parties filed and Ex.B1 and Ex.B2 documents marked on the side of the opposite parties.

 

8   At this juncture, the point for the consideration before this

        Forum is:  

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite parties as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

 

 

9. Point No.1

As per the case of the complainant is that though the complainant is no way connected with the personal loan of Rs.1,00,000/- availed by one Albert Nadan, who is unknown to the complainant and the complainant never signed as co-applicant in the alleged loan application and the document obtained by the Marketing staff of the opposite party’ bank from the complainant  and it is probable now such document are being misused to connect the complainant  as co-applicant to the personal loan taken by Albert Nadan and thereby the opposite party committed unfair trade practice which is clearly amounts to deficiency of service.

10.    While being so, the opposite party vehemently contended the allegation made in the complaint and as per the terms and conditions the complainant cannot escape from his liability as a co-applicant, since the complainant affixed his signature as a co-applicant in the loan account bearing No.LPCHE00008975766.  It is further contended that it is utterly false to say that the complainant does not known Mr. Albert Nadan and never signed as co-applicant in the alleged loan application and in fact the complainant had executed such documents by affixing his photos and signatures as a co-applicant for the loan availed by Mr.Albert Nadan and thereby  the complainant suppressed the real facts and moved this forum without clean hands with a sole intention  to defeat the process of law and evade the payments. 

11.    At this juncture, the duty cast upon the complainant to prove the allegation made in the complaint against the opposite party through consistent evidence.    First of all, on careful perusal of the evidence of the complainant it is seen that the complainant having three credit cards which are marked as Ex.A1 series.   It is further narrated by the complainant that he has received the demand notices which are marked as Ex.A2 & Ex.A3 from the opposite party pertaining to the personal loan availed by one Mr.Albert Nadan in which the complainant is a co-applicant in which the complainant actually never signed in any loan application availed by one Mr.Albert Nadan who is unknown to the complainant and thereby the complainant has sent  lawyer notice is marked as Ex.A4 and again the complainant received another demand notice which is marked as Ex.A5 from the opposite party-2 and also lawyer notice issued by the opposite party-1 which is marked as Ex.A6 and for which the reply notice sent by the complainant through his lawyer to the opposite party-1 is marked as Ex.A7 and the acknowledgment card is marked as Ex.A8.    Except the above exchange of notices there is no document filed on behalf of the complainant to show that the complainant has not signed in the alleged personal loan application availed by Mr.Albert Nadan.  

12.    Such being so, on seeing through the evidence of the opposite parties it is enlightened that Mr. Albert Nadan who was the principal applicant introduced the complainant as a co-applicant and both were submitted an application dated 12.12.2006 which is duly singed by both of them which is marked as Ex.B1 and the other documents available with the bank clearly establishing the fact that the complainant affixing the signature as co-applicant the loan amount and as per the terms and conditions when the applicant failed to pay the loan amount the complainant who is being a co-applicant having liability to pay the loan amount and in order to escape from the process of law.   The complainant stated that he does not unknown Mr.Albert Nadan and never singed as co-applicant in the loan application, but actually it is not true.  It is further stated by the opposite party that the complainant had wantonly suppressed the real facts as a sole intention to defeat the process of law and evade the payments and the opposite party had acted due of process of law and therefore there is no unfair trade practice and deficiency of service committed by them as alleged in the complaint.

13.    At this juncture, on careful perusal of the rival submission put forth on either side it is crystal clear that the complainant had never denied the signature found in Ex.B1.  Only dispute raised by the complainant is that when he applied for obtaining Ex.A1 credit card the Marketing staff of the opposite party bank had obtained various documents with his signature and later it is probable such documents are being misused to connect the complainant as a co-applicant  taken by Mr.Albert Nadan who is stranger to the complainant.   In such circumstances once the signature admitted in Ex.B1 application  and enclosure, the burden of proof that the complainant has not signed for the alleged personal loan, await by one Mr.Albert Nadan is only on the complainant.   While being so the complainant has stated in his evidence as well as complaint that Ex.B1 application is not pertaining to the personal loan and only pertaining to the issuance of the credit card.  In the instance case, in Ex.B1 application, it is crystal clear that the complainant affixing his photo as well as signature as a co-applicant and therefore in order to prove the same there is no concrete and consistent evidence produced on the side of the complainant.   Furthermore it is noticed from the complaint as well as evidence that the signed document given to the Marketing staff of the opposite party bank was misplaced by Mr.Albert Nadan.   If it is so, it goes without saying that the complaint ought to have filed criminal complaint before the jurisdictional police for appropriate action but the case on hand,  no such police complaint preferred by the complainant which clearly reveals that the plea taken by the opposite party holds good.  

14.    At this point of time the decision relied upon  by the opposite parties in

III (2000) CPJ 393

MAHARASHTRA STATE CONSUMER DISPTUES REDESSAL COMMISSION, MUMBAI.

AMEIRALI A. MUDADAM

          ..Vs..

UNITED INDIA INSURANCE CO. LTD.

       

is squarely applicable to the facts of this case.   In the above said decision is held that

It is very foundation of the complaint is based on disputed documents  This along with other documents will require a lot of evidence and also co-relate them with various other facts and circumstances which have been mentioned in the complaint, the written version and the Surveyor’s report.  This is not a simple case of just raising the percentage of premium as alleged by the complainant.   

 On going through the voluminous documents and numerous facts and circumstances of the case, we find it difficult to decide the complaint in a summary enquiry.  

15.    If it is so the case on hand the complainant had very well disputed Ex.B1 document by stating that the said application is not pertaining to the personal loan but it amounts only for credit card application, and also misused some documents which are signed by him and handed over to Marketing staff of the opposite party.  Such being the fact, it needs elaborate enquiry and also the criminal complaint before the jurisdiction police station is just and necessary.

16.    From the  foregoing other facts and circumstances, it is crystal clear that the complainant is being co-applicant as per the guide line of Reserve Bank of India and as per the terms and conditions of the loan application  the demand notice was issued by the opposite parties to the complainant on available  records with bank is just and proper and there is no question arises that the opposite party had acted unfair trade practice which amounts for deficiency if service.   Furthermore, it is crystal clear, that the complainant has not moved this forum with clean hands and thereby the complaint is devoid of merits.  At the same time the plea taken by the opposite party holds good.    Thus point No.1 is answered accordingly.  

17.   Point No.2

          As per the view concluded in point No.1, the complainant is not entitled for any relief as prayed for in the complaint.  Thus the point No.2 is answered accordingly.

In the result, the complaint is dismissed.  No cost.

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  19^th  day  of  January 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:   

Ex.A1- 9.7.2007    - Copy of credit cards of the complainant.

Ex.A2- 20.8.2007  - Copy of notice issued by 2^nd  opposite party.

Ex.A3- 24.8.2007  - Copy of notice issued by 2^nd opposite party.

Ex.A4- 24.8.2007  - Copy of reply issued by the complainant’s lawyer to the

                              2^nd opposite party.

Ex.A5- 10.10.2007         - Copy of notice issued by 2^nd opposite party.

Ex.A6- 28.6.2008  - Copy of lawyer’s notice issued by 1^st opposite party.

Ex.A7- 14.7.2008  - Copy of reply issued by the complainant through his

                              Lawyer to the 1^st opposite party’s counsel.

Ex.A8- 18.7.2008  - Copy of Ack. card.

Opposite party’s side document: -   

 

Ex.B1- 12.12.2006         - Copy of  application form.

Ex.B2- 8.5.5009    - Copy of statement of account.

 

 

MEMBER-I                        MEMBER-II                              PRESIDENT.