DATE OF FILING : 11.2.2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29^th day of August, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

C.C No.33/2011

Between

Complainant : P.S. Suresh, S/o P. Selvaraja Nadar,

Pillaiyan Manai (Das Villa),

M.S.A. Road, Munnar,

(Proprietor – Marikar and Co.

HP Dealer, Main Road, Munnar)

Munnar P.O.,

Idukki District.

(By Adv: Shiji Joseph)

And

Opposite Parties : 1. The Manager,

Dhanalakshmi Bank,

Munnar, Munnar P.O.,

Idukki District.

2. H. R. Rangarajan,

Executive Vice President,

Planning Department,

Dhanalakshmi Bank,

Thrissur.

(By Adv: Ajith Pottas)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant is the proprietor of the HP Petrol pump at Munnar. He is having current account as No.67.53.1904 with the 1^st opposite party. The complainant has been operating the account for the last 6 years. Through this account, the complainant is making payment for the petroleum products to the HP Corporation by availing RTGS facility. Approximately about Rs.4 crores transaction is doing in a year by the complainant. But the opposite parties never made any unusual charges on the account of the complainant till September, 2009. But between 26.9.2010 to 4.10.2010, on 19.10.2010 to 22.11.2010 and on 23.11.2010, the opposite party deducted Rs.52,800.63/-, Rs.1,688.45/- and Rs.5,355/- respectively from the complainant's account. Thus a total of Rs.60,570/- was deducted till 23.11.2010. These deductions were made without any notice and knowledge of the complainant.

(cont....2)

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When the complainant enquired about the charges, the 1^st opposite party informed the complainant that the charges were deducted mainly as cash counting charges and they are entitled to do so. The conditions printed over the pass book did not authorise the 1^st opposite party to deduct any charges as cash counting charges. The complainant made several complaints to the 1^st and 2^nd opposite parties against the unauthorised deductions made all of a sudden in the complainant's account. A complaint also filed to the 2^nd opposite party, and the 2^nd opposite party called for a personal hearing on 4.1.2011 at Thrissur. The complainant hired a taxi and reached Thrissur on 4.1.2011. The 2^nd opposite party during the meeting shouted at the complainant, in spite of hearing the grievance of the complainant and so the 2^nd opposite party ridiculed the complainant. The complainant travelled about 150 Km from Munnar to Thrissur spending about Rs.5,000/- as taxi charge expecting justice from the 2^nd opposite party. This incident was shocking and made mental agony to the complainant. Again the complainant claimed Rs.50,000/- as compensation. So this petition is also for getting compensation for the mental agony and financial loss caused to the complainant due to the act of the opposite party and also for getting back the amount illegally deducted from the complainant's account as Rs.60,570.60, with interest.

2. As per the written version filed by the opposite parties, the complainant is not the holder of the account in his self personal capacity, but the account holder is M/s. Marikar and Co., H.P. Dealer, Munnar, Kerala and the account type is “Regular Current Account”. M/s. Marikar and Co. is the dealer of Hindustan Petroleum Corporation Ltd., being a huge commercial establishment doing crores of various businesses. The complainant as the nominal proprietor of M/s. Marikar and Co. is operating the current account and is availing the RTGS facility for his various commercial transactions alone. Real Time Gross Settlement is for transactions above Rupees One Lakh only. RTGS charges were debited to the account for the respective amounts transferred by the complainant prior to September 2010, and an amount of Rs.135.96 and Rs.14.04 for RTGS charges and service tax respectively for the month of July 2010, Rs.181.27 and Rs.18.73 for RTGS charges and service tax respectively for the month of August 2010, Rs.407.87 and Rs.42.13 for RTGS charges and service tax respectively for the month of September 2010, Rs.271.91 and Rs.28.09 for RTGS charge and service tax respectively for the month of October 2010 were thus debited to the account. Cash handling charges were introduced with effect from 1^st March 2010. It is not denied that the opposite parties deducted Rs.6,621/- and Rs.683.95/- towards cash handing charges and service tax respectively for the month of March 2010, Rs.7,437/- and Rs.768.24/- towards cash handling charges and service tax respectively for the month of April 2010, Rs.9,287/- and Rs.959.35/- towards cash handling charges and service tax respectively for the month of May 2010, Rs.6,170/- and Rs.637.36/- towards cash handling charges and service tax respectively for the month of June 2010, Rs.5,838/- and Rs.603.06/- towards cash handling charges and

(cont....3)

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service tax respectively for the month of July 2010, Rs.6,339/- and Rs.654.82/- towards cash handling charges and service tax respectively for the month of August 2010, Rs.6,788/- and Rs.701.20 towards cash handling charges and service tax respectively for the month of September 2010, Rs.5,355/- and Rs.553.17/- towards cash handling charges and service tax respectively for the month of October 2010. Thus a total of Rs.60,579.25/- has been debited to the account towards Cash deposit and RTGS charges and it is as per the prevailing law. No unusual charges has been deducted from customers including the complainant at any time by the opposite party. As per RBI/2008-09/207.DPSS.CO.No.611/03.01.03 (P) 2008-09 dated 08.10.2009 had acknowledged and allowed cash handling charges levied by banks for handling large value cash transaction. Subsequently the RBI vide their Master Circular No.DBOD NO.Leg.BC.19/09.07.006/2010-11 dated July 1, 2010 had advised that “the decision to prescribe service charge has been left to Individual Banks.” Further vide the same circular the RBI, while fixing the maximum limit for charge for service like RTGS/NEFT/ECS and outstation cheque collection, specifically noted that “the provision for maximum limits are not applicable to cash handling charges levied by banks for handling large value cash transactions”. Cash handling charges were implemented in the opposite parties' bank from 1^st March 2010 as per new schedule of charges vide opposite party's circular No.P&D/104/2009-10 dated 30.1.2010. During the 30^th of January 2010 itself, these matters were displayed conspicuously on the notice board, customer information folder kept in the branch of the 1^st opposite party and on the website of the bank. The opposite party clearly given notices of more than one month prior to the introduction of the revised charges, as per the direction of the RBI. Even the conditions on the passbook clearly and specifically invites the attention of the depositor/customer to bank account rules which govern the conduct of the bank accounts. The 2^nd opposite party is unnecessarily dragged into this case. And nothing has happened to the allegation.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of oral testimony of PW1 and Ext.P1(series) marked on the side of the complainant and oral testimony of DW1 and Exts. R1 to R10 marked on the side of the opposite parties.

5. The POINT:- The manager of the petrol pump deposed as PW1. PW1 deposed that the Marikar and Company is having a current account as No.67.53.1904 from the last 10 years with the 1^st opposite party and without the knowledge and consent of the complainant, the 1^st opposite party deducted about Rs.60,579.25 from different dates in between 27.9.2010 to November, 2010. Ext.P1(series) is the

(cont.....4)

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statement of account of the complainant's transaction at the 1^st opposite party's bank from 1.9.2010 onwards. Due to the realisation of the cash handling charge in a lump sum with retrospective effect, the opposite party was deprived the right of the complainant to quit the transaction with the opposite party. It was deducted without the notice to the complainant, all of a sudden. Mr. Suresh had given a complaint to the 2^nd opposite party regarding the same. On 4.1.2011 he met the 2^nd opposite party at Thrissur for a personal hearing at about 10 a.m. During the meeting, the 2^nd opposite party shouted at the complainant. The complainant arranged a taxi to reach there. The unexpected deduction of the amount caused financial loss to the complainant. The complainant is having a spices shop and also a resort in the name “Emarald Inn”. PW1 is not aware of the current turn over of the complainant and he is the manager of the petrol pump and there is a turn over of Rs.1 lakh per day. He was working as a manager for the last 2 years. He is not having a knowledge on the computer. The cheque leaves were signed by the complainant himself and cash payment slips were also signed by the complainant himself. PW1 is not aware whether the complainant has been filed a complaint regarding the same. PW1 is aware that there is a notice board at Munnar branch of the 1^st opposite party and customer intimation board also there. PW1 is not known about the number of bank accounts operating by the complainant.

The manager of the opposite party filed affidavit and produced evidence as DW1. The circular of the RBI regarding the levy of the service charges for Electronic payment products and outstation cheque collection, dated 8.10.2008 is produced and marked as Ext.R1. Copy of the circular dated 30.1.2010, of the opposite party bank stating the Revision of service charge is marked as Ext.R2. Ext.R3(series) are the Revised Schedule of Charges for current accounts with effect from March 1, 2010. The opposite party had displayed about the details of the service charges in the website and the copy of the print out of the website of the opposite party displaying the charges of the current account are marked as Ext.R4(series). Copy of the current account pass book within the current account rules of the opposite party is marked as Ext.R5 and Ext.R6 is the sample pass book issued by the opposite party. Statement of account of the opposite party bank at SBT Munnar is marked as Ext.R7(series). Similarly, other banks also charges for large volume and large value services provided to current account customers. The 1^st opposite party is also paying cash handling charges to SBT Munnar branch in large volume cash transactions of its account No.57064109070. The schedule of service charges of the SBT is marked as Ext.R8. The complainant was also informed about the introduction of cash handling charges personally and directly by the 1^st opposite party on 30.1.2010 itself. The 2^nd opposite party never received any complaint from the complainant. The 2^nd opposite party did not call or invite the complainant for a personal hearing on 4.1.2011 never insulted or ridiculed the complainant. The

(cont.....5)

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service of the 1^st opposite party vide the account No.67.53.1904 are not used by the complainant himself personally, but is being used by a commercial establishment, that is M/s Marikar and Co., entirely for various pure commercial purpose only and not for deriving any income by way of self employment. The true copy of the account having the name of M/s Marikar is marked as Ext.R9. During the period from 1.3.2010 to 31.12.2010 a debit of Rs.5,75,48,067.39/- and a credit of Rs.5,75,51,682.61/- and thus a total value of transaction Rs.11,50,99,750/- were carried in the account of M/s.Marikar and Co. and the statement of account No.006705300001904 of M/s.Marikar and Co. is marked as Ext.R10. Also the complainant held another current account for his self purpose vide account No.67.53.828 with the 1^st opposite party and also vide account No.10100200003826 with the Federal Bank Ltd., Munnar Branch. So as per the pass book issued by the opposite party, the service charge is collecting quarterly or half yearly. But here it is charged on half yearly. Now the opposite parties are not charging service charge from the complainant because as per the instruction from the Head Office. The complainant is a main customer of the opposite party and the matter was informed to the complainant and he is life time free from the service charge. But cash handling charges are still existing now to other customers. Thus 3 more customers are also providing the same including the complainant.

As per the complainant, the opposite party, without any notice to the complainant, deducted about Rs.60,579/- from the account of the complainant as service charge and cash handling charge and it is against the prevailing law. So the complainant is entitled to get the amount returned. But as per the opposite party, they are deducting the service charge and cash handling charges for only large value of cash transactions as per the circular of RBI and the Head Office of the 1^st opposite party bank. Ext.R1, which is the circular of the RBI explains about the levy of the service charges for electronic payment products and also for outstation cheque collection and Ext.R3 also shows about the revision schedule of charges for current account with effect from March 1, 2010 of the opposite party. Another circular from the opposite party bank dated 30^th January, 2010 also states about the revision of service charges and it is marked as Ext.R2. It is written in the current account pass book and copy of the same is also produced and it also shows that the opposite party can charge service charge from the customers.

The only dispute of the complainant is that the matter was not at all informed to the complainant personally and no notice has been served to the complainant and the amount has been deducted from the account of the complainant and it made a financial crisis to the complainant. Without the knowledge of the complainant, the amount deducted from the account of the complainant by the opposite party. On cross examination of the learned counsel for the complainant, DW1 deposed that they

(cont....6)

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have displayed the notice about the revision of service charge on the notice board and also in the customer information booklet and also in the website and the matter was also intimated to the complainant. So we think that Ext.R5 is the copy of the current account pass book issuing to the current account holder of the 1^st opposite party in which the current account rules are also mentioned and in page 6 as clause 27 (a), it is written that, service charges per half year (minimum) will be levied and debited to an account every half year irrespective of the fact whether there is operation in the account or not, as clause 27(b), whether the operations in the current account are very heavy and/or the parties do not maintain even the minimum balance, the service charges will be increased and as clause 27(c), standing instruction: mainly on the basis of the cost per transaction will be levied. In addition to this charge, the actual postages or other out of pocket expenses, if any, also will be levied. Where the transaction involves issue of Pay Order or a Demand Draft, additional charges by way of exchange for issue of Pay Order / Demand Draft also will be collected. As clause 29, the bank reserves to itself the right to amend, delete or add to these rules at any time without notice. So it is very clear from the Ext.R5 pass book issued to the complainant and this matter are not at all challenged by the complainant in anywhere. There is no case for the complainant that the current account pass book is not having the current account rules and it is not issued to the complainant. Ext.R4 is the copy of the website of the opposite party bank in which the RTGS charges are also written and the complainant also never challenged about the same while cross examining the DW1. It is also written that fees as Rs.1 lakh to Rs.5 lakh – Rs.25/transaction, Rs.5 lakh and above – Rs.50/transaction and it is written as clause 6 in the revised schedule of charges for current accounts with effect from March 1, 2010 in Ext.R4(series).

The opposite party is having an account at the SBT Munnar branch and the statement of account of the opposite party at Munnar SBT is also produced and they are also charged cash handling charges from the opposite party bank and the statement of account of SBT Munnar also produced. So the only dispute of the complainant is that the opposite party has not intimated the deductions of service charges from the complainant's account. But as per the circular of the bank and also as per the website and also in the pass book, it is written about the charges which can be levied from the account holder and the bank has the power to vary the same. As per the complainant, he was called for hearing at the opposite party Head Office at Thrissur and the 2^nd opposite party insulted and shouted against him at the time that he appeared there. But the complainant never appeared before this Forum and never produced any evidence to substantiate the same. Even the account of the complainant is in the name M/s. Marikar and Co. and the complainant is a partner of the same and the cheque and pay-in-slips are issuing by the complainant himself, but the complainant never produced evidence before this Forum to show that the opposite

(cont.....7)

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party never informed the matter of levying the service charges to the complainant directly. PW1 is the manager of the petrol pump of the complainant and he is not aware of the meeting of the complainant at the 2^nd opposite party office. But now the opposite parties are not charging the cash handling charges from the complainant because he is one of the main customers of the opposite party and is as per the direction of the Head Office, they have avoided the complainant from charging the same. That is also deposed by DW1. Another contention of the opposite party is that the complainant is having a transaction of Rs.11 crores in his account named M/s Marikar and Co. and the businesses conducting by the complainant are absolutely commercial and the account is for a commercial establishment firm and not for deriving income for self employment. The complainant is having so many businesses at Munnar including resort. So this complainant will not come under the purview of the Consumer Protection Act because the account carrying by the complainant is absolutely for the commercial purpose. In the argument, the opposite party summarised the decision of the Hon'ble National Consumer Disputes Redressal Commission,

in consumer complaint No.159 of 2009 filed by 1. M/s Silvertone Motors Pvt. Ltd and 2. M/s. Kunal Enterprises a proprietorship concern, Vs. ICICI Bank Ltd. held that, "would not bring the case within the ambit of the explanation appended to the section" that is Section 2(1) (d) (ii). "The service have been availed for commercial purpose. Complainants cannot be termed as consumer nor this complaint is maintainable under the Act.

So we think that the opposite party is charging as per the direction and rules of RBI and so that service charges has been received. So no deficiency has been proved by the complainant against the opposite party.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 29^th day of August, 2011

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

(cont....8)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Jayakumar.

On the side of the Opposite Parties :

DW1 - Franklin Jeeva.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - The statement of account of the complainant's transaction at the

1^st opposite party's bank from 1.9.2010 onwards.

On the side of the Opposite Parties :

Ext.R1 - The circular of the RBI dated 8.10.2008.

Ext.R2 - Copy of the circular of the opposite party bank dated 30.1.2010.

Ext.R3(series) - Copy the Revised Schedule of Charges for current accounts

with effect from March 1, 2010.

Ext.R4(series) - Copy of the print out of the website of the opposite party displaying

the charges of the current account.

Ext.R5 - Copy of the current account pass book within the current account

rules of the opposite party.

Ext.R6 - Sample pass book of the opposite party.

Ext.R7(series) - Statement of account of the opposite party bank at SBT Munnar.

Ext.R8 - Copy of the schedule of service charges of the SBT.

Ext.R9 - The true copy of the account having the name of M/s Marikar in the

opposite party bank.

Ext.R10 - The statement of account of M/s.Marikar and Co. in the opposite

party bank.