State Consumer Disputes Redressal Commission
Ms. Anjoo Sharma vs (Hsbc Bank), Hyderbad on 17 December, 2009
BEFORE THE A BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. C.C. No. 15/2009 Between: Ms. Anjoo Sharma D/o. Late N. K. Khanna Age: 44 years, R/o. 6-3-883/2/3, 4th Floor Mahalaxmi House Krishna Pearls & Jewels Punjagutta, Hyderabad-82. *** Complainant And The Branch Manager Hongkong & Shanghai Banking Corporation Ltd. (HSBC Bank) At 6-3-1107 & 1108 Rajbhavan Road, Somajiguda Hyderabad- 500 082. *** Opposite Party Counsel for the Complainant: P.I.P. Counsel for the O.P: M/s. V. Padmanabhan HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SRI R. L. NARASIMHA RAO, MEMBER
THURSDAY, THIS THE SEVENTEENTH DAY OF DECEMBER THOUSAND NINE Oral Order: (Per Honble Justice D. Appa Rao, President) ***
1) This is a complaint filed against HSBC Bank to provide copies of complaint made against her to the various Credit Ratings Agencies (CRA) like CIBIL etc. and rectify/delete the black-listed credit rating and pay compensation of Rs. 1 crore and costs.
2) The case of the complainant in brief is that she was holding two credit cards with the opposite party bank with a credit limit of Rs. 2 lakhs on each card for the last five years till January, 2007. While so she visited the bank on 5.1.2007 to get the both credit cards cancelled and clear the outstanding as on date.
On that Ms. Deepthi, Manager, Credit Cards Division gave her the as on date outstanding as Rs. 1,87,996/-
and Rs. 2,08,343/- respectively on the said cards. On which she made payments on spot vide cheques both drawn on IDBI which were received and acknowledged.
However, she received a statement from the bank that she had to pay Rs. 9,000/- more for which she contacted Ms. Deepthi, who in turn directed her to call the Customer Care for the status of her credit cards. On that she gave a complaint on 17.4.2007 to the Associate Vice-President, Customer Services and Personal Finance Service on which she was assured that the credit cards would be cancelled. When she applied for a loan to another bank it had informed that she was declared as International Financial Offender by Credit Rating Agencies (CRA) because of non-payment of dues to the bank towards credit card account. This was humiliating. However, the bank to which she had applied for loan agreed to give 50% in view of her status with CRA. When contacted the opposite party bank through her advocate, she was informed that the bank had not cancelled the second credit card and showed outstanding of Rs. 17,440.15 and on that information CRA agencies like Master Card Negative File (MCNF) and Credit Information Bureau India Ltd. (CIBIL) etc. had black-listed her. When protested Mr. Kamlesh Rangam, Vice President of the bank informed that disputed amount of Rs. 17,440.15 would be waived off and disputed credit card would be cancelled, and assured that negative feeds given against her would be removed. However, he became evasive and non-co-operative at a later point of time. Despite repeated requests by internet banking etc., the same was not rectified. Finally on 1.4.2009 the bank informed her that her name was deleted from MCNF and they have arranged for rectification of her account details with CIBIL. However the bank kept her name black-listed without any fault on her part though she was not a defaulter. While doing so the bank did not follow the Code of Banks Commitment to Customers of the Banking Codes and Standard Board of India and RBI regulations. Thus constitute deficiency in service. When she was paying EMI of Rs. 34,792/- towards mortgaged loan she was treated as defaulter for mere non-payment of Rs. 17,440.15 assuming the same to be the amount due. Her reputation was tarnished. Therefore she filed the complaint directing the bank to provide copies of complaints made against her to various Credit Ratings Agencies and award compensation of Rs. 1 crore for ruining and destroying her credibility and costs.
3) The opposite party bank resisted the case. While denying each and every allegation made in the complaint, however, it admitted that it had issued two credit cards to her one in the month of October, 1999 and another in the month of September, 2005 with a credit limit of Rs. 2 lakhs on each card. The statements of account for the period from 6.1.2006 to 5.1.2007 show that in respect of one of the credit cards the outstanding balance was Rs. 1,95,241.62 against which it has received Rs. 1,87,996/- as on 8.1.2007. Thus the interest amount was not cleared. In respect of second card for the period from 10.11.2006 to 9.12.2006 outstanding balance was Rs. 2,18,342.59 as on 1.1.2007. The bank had received an amount of Rs. 10,000/- on 27.12.2006 and Rs. 2,08,343/- on 8.1.2007. Interest charges on the outstanding payments due on credit cards were levied only on the last date of billing. In the event any payments are made during the period, interest on the outstanding amounts would be charged to the date of payment and the same would be reflected in the subsequent statement. Statements of account for the two credit cards were sent indicating the interest amounts outstanding on the cards. The allegation that Mr. Kamalesh Rangan of the bank promised to waive the interest is not true. The complainant was a defaulter in payment of dues on the credit cards. It had informed about it to CIBIL.
As per the RBI guidelines credit information relating to credit cardholders would be sent to CIBIL on monthly basis. Owing to non-payment for more than 180 days the account was termed as Non-performing Asset and accordingly it had to write off the outstanding on the card account and the same had been updated to CIBIL as directed by RBI. CIBIL has classified the complainant as defaulter and international financial offender, for which it had no control. Since it had written off the amount due in the month of June, 2008 and had sent the requisite details to CIBIL it is for the CIBIL to take appropriate action. It had discharged its duty by informing CIBIL. Since it had discharged its statutory duty, the complainant had to approach the appropriate authorities for deleting her name from the list of defaulters. It was not aware that the complainant has applied loan to HDFC bank on which it agreed to give 50% of the loan amount though it had earlier sanctioned. There was no deficiency of service on their part. The complainant did not come to the court with clean hands. In fact the bank at the request of the complainant as a goodwill gesture written off the interest due and payable by the complainant. The complaint was bad for non-joinder of CIBIL as a party. The complainant was not entitled to any compensation and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A50 marked, while the bank filed the affidavit evidence of its Legal Officer and got Exs. B1 to B26 marked.
5) The points that arise for consideration are :
1) Whether the complainant did not commit any default towards Credit Cards account?
2) Whether the bank had wrongly reported the complainant as defaulter to CRA agencies like CIBIL etc.
3) Whether the complainant had sustained any damage to her credibility and thus entitled to any compensation, if so, to what amount?
4) To what relief?
6) It is an undisputed fact that the complainant had two credit cards issued by the opposite party bank with a credit limit of Rs. 2 lakhs each evidenced from Ex. A1.
Evidently when she was not in the country from 27.9.2006 evident from the stamping on her VISA Ex. A2 and as she found difficulty in receiving monthly statements to make payment on time, she visited the bank on 5.1.2007 with a request to cancel the credit cards after receiving the amount whatever due. She addressed Ex. A4 letter. It was received by the bank evidenced under acknowledgement. She asserted that Ms. Deepthi, Manager of Credit Card Division calculated the amounts and directed her to pay Rs.
1,87,996/- and Rs. 2,08,343/-towards the amounts due on two credit cards. Accordingly, she paid by way of cheques/deposit slips vide Exs. A4 & A5. The Manager endorsed by writing received cheques. As on date outstanding Naturally the complainant was of the opinion that the credit cards would be cancelled and that no amounts were due under the said credit cards. When she did not get any acknowledgement that the credit cards were cancelled , she gave a written complaint under Ex. A7 Dt. 17.4.2007 on that Mr. Kamlesh Rangam, Associate Vice-President, Customer Services & Personal Finance Service waived off the amount due vide Ex. A26 and had cancelled only one of her credit cards vide Ex. A19 in June, 2007.
7) It is not in dispute that the bank without cancelling the other credit card reported her name as Defaulter for non-payment of outstanding amount towards credit card to CIBIL and MCNF and other credit rating agencies. She was not given any prior information or notice before resorting to this extreme step. The very complaint is that by addressing letters to the above said agencies due to which her name was black listed as defaulter and international financial offender thus tarnished her image, preventing the other banks from granting any loan, and even if it granted it was part of the loan amount that too with a stigma. This amounts to deficiency of service. Her image was tarnished. Therefore she was entitled to compensation for mental agony, trauma and loss of her creditworthiness etc.
8) The fact that she had a savings bank was not dispute. The very bank has sanctioned a mortgage loan of Rs. 25 lakhs with an EMI of Rs.
34,792/- which she had been paying without committing any default. The bank while admitting the payments made by her towards credit cards, however contended that in respect of one of the credit cards the outstanding amount was Rs. 1,95,241.62 as against which, it has received Rs. 1,87,996/- as on 8.1.2007. She might have deposited the cheque on 5.1.2007 for payment of said amount but it was cleared on 8.1.2007. Therefore she was liable to pay interest component in the interregnum on the outstanding amount of Rs. 1,95,241.62 levied from 5.1.2007 to 8.2.2007 viz., Rs. 7,245/- This amount was not paid. Pertaining to the second credit card as against outstanding amount of Rs. 2,18,342.59 as on 9.12.2006 the complainant had paid Rs. 10,000/- on 27.12.2006 and Rs.
2,08,343/- on 8.1.2007. She had failed to pay interest for the interregnum period.
They informed the principal outstanding and not interest. In both the cases the effective date of payment could be reckoned from 8.1.2007. The bank asserts that the rules of Reserve Bank of India (RBI) mandates information to CIBIL whenever a customer commits default. Accordingly it had furnished information. It was discharging its statutory obligation. It justified that the information that was sent was correct. It was complainants negligence in non-payment of amounts in time resulted in reporting the matter to CIBIL. She had to approach the CIBIL to get her name deleted from the black list and it had no concern whatsoever for getting her name removed from the said agency.
9) Before appreciating the contention of the bank, it is pertinent to note that admittedly one Ms. Deepthi, Manager of the bank had acknowledged that the bank had received the amounts by way of cheques As on date outstanding vide Ex. A5 & A6 the date being 5.1.2007. As we have earlier pointed out the defence of the bank is that the complainant was liable to pay the amount together with interest till 8.1.2007 the day on which the amount was received and for the interregnum period interest would be charged and therefore till such payment was made, it cannot be assumed that the entire amount was paid. The complainant asserts that had this been the practice Ms. Deepthi, Manager could have informed the said fact or made an endorsement to that effect . Contrarily by positively mentioning As on date Outstanding would undoubtedly indicate that the entire amount was paid. Having given such an endorsement, they are estopped from contending otherwise. The bank could have filed the affidavit of Ms. Deepthi to prove that it was not towards outstanding and some amount was still due. She would be in better position to explain as to the endorsement which completely exonerates the complainant from paying any of the amounts. Equally, when the complainant asserts that when she did not receive any communication with regard to cancellation of these cards, she met Mr. Kamalesh Rangan, Associate Vice-President, Customer Services & Personal Finance along with an advocate Mr. Ramana Rao, who stated that he had waived off the amount due to wrong calculation. The bank did not choose to file the affidavit of said Mr. Kamalesh Rangan to deny the said fact. Instead it had filed the affidavit of Mr. Srikanth Racha, Legal Officer who was admittedly not present at any of these transactions. He could not deny the facts that were alleged by the complainant. He was not aware of any of these transactions. Except reiterating the facts mentioned in the correspondence and documents, he did not deny the above facts. The denial by the legal officer was in general terms, which he was unaware.
10) At the cost of repetition, we may state that though the bank gave an endorsement stating that the complainant had paid the outstanding amout due on the credit cards, solely on the premise that interest accrued between 8.1.5007 and 5.2.007 a paltry amount of Rs. 7,245/- and Rs.
10,000.59 were not paid, dubbed her as defaulter to CIBIL and MCNF under the guise of RBI guidelines.
The bank cancelled one of the credit cards vide Ex. A19 on the ground that it had waived off the amount due, however maintaining that the complainant had to pay the amount due under second credit card. There is no basis for them to cancel one card while keeping alive the second card. The bank reported the matter to above said agencies despite the protests by the complainant repeatedly evidenced under Ex. A21 & A22 and address the agencies to see that the mistake is rectified. It is not the case of the bank even that it gave notice to the complainant alleging that some amounts were due by her and on failure to pay by a particular date, the matter would be reported to the above said agencies. The bank addressing the letters to CIBIL and other credit rating agencies had taken a stand Further, we observe from our records that as we are not in receipt of the payment towards the outstanding against the care statements, you card account was levied with incremental charges and accordingly the data has been submitted with CIBIL. However, as of date there is no outstanding in your card account. We wish to clarify that as per guidelines, banks are required to share the date of their customers repayment behaviour with CIBIL on a monthly basis. Banks are not authorised to delete or remove a customers record completely. Hence, we express our inability to accede to your request.. The same was repeated under Ex. A22.
11) The bank while directing the complainant to address the CIBIL even maintained in its counter that the complainant being a defaulter and the opposite parties discharging their statutory duties it will be incumbent upon the complainant to approach the proper authority for deleting her name from the list of defaulters.
12) The complainant had filed the RBI guidelines as well as circulars of RBI in order to prove that the bank had acted contrary to the guidelines. The bank while admitting that their office had issued the certificate that there were no outstanding wanted to wriggle out by stating simply that it was a mistake on the part of the office. Having accepted the mistake that they are estopped from contending that the amounts due were not paid. It does not lie in the mouth of the bank to state that the officer had committed any mistake. If it was a mistake, it is for the bank to recover whatever amount due. Due to the mistake committed by the officer a customer should not be penalised. Had the bank demanded the complainant could have paid the amount. It could have informed that it was crediting it from the S.B. account. The entire conduct of the officers of the bank in regard to operating of the account, the complainant smacks suspicion.
13) It is not in dispute that CIBIL Indias first credit information bureau is a repository of information which contains the credit history of commercial and consumer borrowers.
CIBIL provides the information to its Members in the form of credit information reports. The opposite party bank is holding 5% share in CIBIL. It is a composite credit bureau which caters to both commercial and consumer segments.
The consumer credit bureau covers credit availed by individuals while the commercial credit bureau covers credit availed by non-individuals such as partnership firms, proprietary concerns, private and public limited companies etc. CIBIL primarily gets information from its Members viz., from banks only and at a subsequent stage will supplement it with public domain information in order to create a truly comprehensive snapshot of a an entitys financial track record. A credit information report (CIR) is a factual record of a borrowers credit payment history compiled from information received from different credit grantors. Its purpose is to hep credit grantors make informed lending decisions quickly and objectively.
14) CIBIL itself does not classify any accounts as default accounts. It merely reflects this information after the Member has classified it as such. The number of days past due and/or asset classification as per RBI definition as submitted by Members is reflected in the CIR. Reports can be accessed by Members on the principle of reciprocity i.e., only those Members who have provided all their data to CIBIL are permitted to access CIRs. Members can do so only to take valid credit decisions. Disclosure to any other person or entity is prohibited.
It provided information by way of question and answers vide Ex. A41. It reads:
Whether the Right to Information Act, 2005 is applicable to CIBIL?
No. The reason being that the CIBIL is not a Public Authority as defined under section 2(h) of the Right to Information Act, 2005 vide Ex. A18 at page 107.
The question framed for purposes of rectifying incorrect information in the credit report by a customer is in the following lines.
Q: How do I rectify information in a credit report drawn on me:
Ans: Please contact the credit grantor from whom you have availed the loan and request the necessary changes. The credit grantor will then report the change to CIBIL and we will subsequently make the necessary updates in our records.
(emphasis supplied) We do not intend to recapitulate the defence of the bank, which was contrary to the above answer. It asked the complainant to get it corrected saying that when once it had sent information it could not do anything. It did not try to rectify even now.
15) The question is, is it mandatory on the part of the bank to take permission to give credit reference to the agency and prior notice to its customers before sending it to CIBIL and other agencies. Banking Codes and Standards Board of India in regard to code of Banks Commitment to Customers mandates the banks to inform the customers. Clause 5.1 (d) & (e) relating to Credit Reference Agencies read as follows :
5.1 (d) Credit Reference Agencies : We may give credit reference agencies other information about the day to day running of your account i f you have given us your permission to do so.
5.1(e) - We will provide you with a copy of the information that we have given to the credit reference agencies about you or provide their leaflets that explain how credit referencing works.
Admittedly the bank did not conform to this clause for obtaining permission or provide a copy of information.
16) The very bank in its The Banking Codes and Standards Board of India agreed to inform change of interest whenever change of interest is affected under the heading Interest Rates:
We will give you information on :
a) the interest rates which apply to your accounts, both deposit and loan;
b) when we will pay interest on your deposits, or charge interest on your loan account;
c) how we apply interest to your account and method of calculation of interest.
We will inform you when we change interest rates on our products.
This was also not admittedly adhered to.
The bank in the brochure HSBC Fair Practice Code for Credit Card Operations at Clause 11.1 mentioned You may terminate your credit card by giving notice to us and by following the procedure laid down by us in our service guide/member booklet after clearing outstanding dues if any.
17) The very guidelines issued by RBI on 1.7.2006 reads:
In case of providing information relating to credit history/repayment record of the cardholder to a credit information company (specially authorised by RBI) the bank/NBFC may explicitly bring to the notice of the customer that such information is being provided in terms of the Credit Information Companies (Regulation) Act, 2005.
Before reporting default status of a credit cardholder to the CIBIL or any other credit information company authorised by RBI, banks/NBFCs should ensure that they adhere to a procedure, duly approved by their Board, including issuing of sufficient notice to such card holder about the intention to report him/her as defaulter to the credit information company. The procedure should also cover the notice period for such reporting as also the period within which such report will be withdrawn in the event the customer settles his dues after having been reported as defaulter. Banks/NBFCs should be particularly careful in the case of cards where there are pending disputes. The disclosure/release of information, particularly about the default, should be made only after the dispute is settled as far as possible. In all cases, a well laid down procedure should be transparently followed. These procedures should also be transparently made known as part of MITCs. (vide Ex. A27). This procedure was not at all followed.
In one word, we can state that the procedure adopted by the bank in declaring the customer as defaulter is contrary to the guidelines.
They are guilty on this score. It is unpardonable.
18) Evidently, after issuing an endorsement that no amount were due, on the very same day i.e., on 5.1.2007 they slapped Rs. 5,855.90 towards finance charges, Rs. 716.76 towards service tax + cess @ 12.24%, Rs. 600/- towards late payment charges, and Rs. 73.44 towards service tax + cess @ 12.24%, altogether Rs. 8,915.04 vide Ex. B7. . Equally so with the other credit card vide Ex. B20 wherein same charges were slapped on 9.3.2009 mentioning Rs. 200.49 towards finance charge, Rs. 24.54 towards service tax + cess @ 12.24%, Rs. 350/- towards late payment charge and Rs. 42.84 towards service tax + cess @ 12.24%. They showed Rs. 1,055.84 as payment over due with a tag that it should be paid immediately, despite the fact that she made final payment as evidenced from Exs. A5 & A6. It looks as though the complainant was protesting from the beginning in not sending the statements of accounts regularly and claiming unrelated charges in a strong language. The officers of the bank must have felt inconvenience and intended to teach a lesson. Having received the amounts towards full payment made an endorsement that no amounts were due they cannot put imaginary figures dub her as defaulter and send intimation to the agencies to declare her as defaulter so that she would not get any loan or privilege from any other bank. It is highly malicious act harboured against a customer taking advantage of the situation that they can send information to the financial agencies. The bank had taken this to its advantage and marred the reputation of the complainant.
19) It is unfortunate that the opposite party a reputed bank should castigate the complainant as a defaulter in spite of clearing the dues and in spite of the fact that the complainant had repeatedly informed them, it suck to its guns and marred the credibility of the complainant. Since the bank did not follow the guidelines which we have earlier adverted to no doubt it amounts to deficiency in service.
The complainant alleges in her complaint, in view of that when she sought for a loan of Rs. 80 lakhs the HDFC bank had granted only 40 lakhs, thus she had not only sustained loss but also her credibility before the other banks.
20) The complainant submits that had there been some miniscule amount payable towards interest the same could have been deducted from her savings bank account. At any rate sending the information to CIBIL is only to mar her reputation. In fact she has been constantly requesting the bank to cancel her credit cards so that she would not be mulcted with amounts by way of interest, finance charges etc.
21) In Ex. A24 they stated that
1) Status of accounts in MCNF -
Further in line with your discussion with Mr. Shahnawaz, we confirm that your name has been deleted from MCNF. We suggest that you verify the status with MCNF to ensure the deletion status at your end. 2) Correction of account status in CIBIL - With reference to the status of accounts as reported to CIBIL, we have arranged for the rectification of the account details. Further, you can approach the credit bureau to view your credit report and confirm the change. Undoubtedly the bank is blowing hot and cold at the same time. It is elementary that a defaulter can never get his/her name deleted or rectified from the defaulters list. If this is permitted every defaulter will see that his/her name is deleted.
Necessarily it is the bank which had furnished the information to these agencies to see that they are rectified.
22) Learned counsel for the bank contended that the every customer who had failed to discharge the amounts within 90 days, his account would be classified as Non Performing Asset (NPA) and immediately it should inform to the above said agencies. Since she had committed default her statement was sent to CIBIL and therefore it cannot be said that there was deficiency in service nor violation of rules of RBI. This contention has no legs to stand. All through in never complained against the complainant for not adhering to the 90 days period. The bank could not have waited if the complainant had committed default. Even otherwise, owing to non-payment of dues for more than 180 days the card account was termed as a Non-Performing Asset and the same has been updated to CIBIL as directed by RBI.
It is the CIBIL that had classified the complainant as international financial offender and the bank had no control over CIBIL. All this contention is contrary to the guidelines referred to above. The bank at no time had issued notice directing the complainant to pay the dues nor addressed a letter stating that the information would be sent to CIBIL in order to classify her an international financial offender. The bank had undoubtedly flouted the RBI rules. The RBI had to take up this matter suo-moto and impose penalty against the bank for violation of guidelines invoking rules issued under Ex. A27.
23) The bank has been misguiding the complainant, in one breath it has taken a stand evident from letter Ex. A20 Dt. 26.12.2008 Since as on date there is no outstanding on your credit card account No. 5548 5120 0536 5251, hence treat this mail as confirmation regarding the deletion of your name from the CIBIL list, and yet another breath five months there after, it addressed a letter on 1.4.2009 stating that it was still arranging to get her name rectified with CIBIL. It may also be stated that if once information is furnished by the bank rightly or wrongly to CIBIL it would be left unchanged for at least 10 years. She gave this statement on oath and the said fact was not be refuted by the opposite party bank. No doubt the record clearly establishes the fact that the bank had illegally sent the name of the complainant to CIBIL so as to see to it that she was dubbed as defaulter and international financial offender by positively stating that the complainant did not pay the interest charges due and was therefore a defaulter. As per the RBI guidelines credit information relating to credit the bank provides credit information relating to its credit cardholders to Credit Information Bureau ( India) Limited (CIBIL) on a monthly basis. The information provided reflects the status as at the previous month-end and includes information regarding whether the credit card account is regular or delinquent. Owing to non-payment of dues for more than 180 days the card account was termed as a Non-Performing Asset and hence the bank had to write off the outstanding on the card account and the same has been updated to CIBIL as directed by RBI. The CIBIL may have classified the complainant as an international financial offender and the bank has no control over the CIBIL. This statement that it has nothing to do with the CIBIL is mis-leading. At any rate the bank did not take any steps to get her name deleted from the black list maintained by CIBIL. The acts of the opposite party bank cannot but be termed as deficient. There cannot be a better example than this.
Their acts are not innocent or by mistake, they are deliberate. They intend to ruin the reputation of the complainant and therefore necessarily the complainant is entitled to compensation. According to her she was paid only Rs. 40 lakhs and to prove the said fact she filed Ex. A9. However, it does not disclose that she had applied a loan for Rs. 80 lakhs. On the other hand against coloumn loan amount only Rs. 40 lakhs was mentioned.
Had she been able to prove that she had suffered a loss of Rs. 40 lakhs the said amount could have been awarded. At any rate, her name was black listed by CIBIL as one of the defaulters and international financial offender.
24) In Ratanlal & Dhirajlal The Law of Torts, 23rd Edition published by Wadhwa & Company at page 486 under the heading Opinion as to creditworthiness relying the proposition in Hedly Byrne & Co. Ltd. Vs. Heller & Partners Ltd., (1964) AC 465 observed:
If a banker gives a reference in the form of a brief expression of opinion in regard to creditworthiness, he does not accept, and there is no expected of him, any higher duty than that of giving an honest answer. But if the circumstances are such that others could reasonably rely on the bankers skill or ability to make careful inquiry before giving information or advice and they could be reasonably expected to rely on the information or advice given, the banker may become liable for giving wrong information or advice negligently. As in all cases of negligence, the criteria for determining liability arising out of negligent misstatement are foresee-ability of harm, proximity of relationship and whether it would be just and reasonable to impose the liability and also whether the case in hand falls within one of the categories where liability has been recognised and if not whether the case bears such an analogy with the recognized categories that a justifiable increment can be made to cover the case.
25) The bank had evidently damaged the reputation of the complainant knowing full well that if once her name is registered in the black list of CIBIL the customer would be dubbed as defaulter and international offender It was not a simple issue that could be ignored. The complainant is admittedly doing business. Her creditworthiness would be at stake which is bread and butter for anybody to do business. Considering the fact that the bank had violated all norms in recommending the name of the complainant to CIBIL and utterly failed to get it corrected despite the fact that the bank had admitted that it was a mistake, amounting to clear deficiency in service and liable to pay compensation.
It has been seen that in determining liability when causation is in issue, it has to be established, like any issue relating to past event, on the balance of probabilities and not on the basis of percentage of probability. But when liability is once established, and the court comes to assessment of damages, which depend its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen our would have happened and reflect those chances, whether they are more or less even, in the amount of damages which it awards. Where a wrong has been committed the wrong does just suffer from the impossibility of accurately ascertaining the amount of damages.
In view of the fact that the bank had negligently and with impunity had violated the confidentiality of the information, we are of the opinion that a compensation of Rs. 20 lakhs could be awarded which we feel reasonable and modest in the circumstances.
26) The learned counsel for the bank contended that this Commission has no jurisdiction to entertain the matter as services under the credit cards would not attract the definition u/s 2(1)(o) of the Consumer Protection Act. Except taking this contention, the bank could not substantiate as to why the banking services could not be termed as Service. Credit cards are basically given for attending to the personal financial needs by using the same instead of payment in cash and for personal use. In fact their services are included in the definition. Therefore, we are of the opinion that this Commission has jurisdiction to redress her grievance.
27) In the result the complaint is allowed in part directing the opposite party bank to address CIBIL and other agencies and see that her name is deleted from the black list of credit rating agencies and provide a copy of such confirmation besides pay a compensation of Rs. 20 lakhs together with costs of Rs. 10,000/-. Time for compliance four weeks.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR COMPLAINANT OPPOSITE PARTY None None DOCUMENTS MARKED FOR COMPLAINANT:
Ex. A1; -- Details of dealings of the complainant with OP.
Ex. A2; 27.09.2006 Emigration Stamping on passport of complainant.
Loan Ex. A3; --- Visa copy of complainant Ex. A4; 05.01.2007 Lr.
Of complainant to O.P. Ex. A5; 05.01.2007 Copy of Deposit Form Ex. A6; 05.01.2007 Copy of Deposit Form Ex. A7; 17.04.2007 Complaint given by complainant to OP.
Ex. A8; 28.06.2008 Copy of Directorship of complainant.
Ex. A9; 28.06.2008 Copy of loan application Ex. A10; -- E-mails of Op to complainant To Ex. A15 --
Ex. A16; 05.01.2009 E-mail of complainant to OP.
Ex. A17; 05.01.2009 E-mail of Op to complainant Ex. A18; 18.02.2009 E-mail of complainant to OP.
Ex. A19; -- E-mails of Op to complainant To Ex. A22;
Ex. A23; 06.03.2009 Notice by complainant to OP.
Ex. A24; 01.04.2009 E-mail of Op to complainant Ex. A25; 08.04.2009 E-mail of complainant to OP.
Ex. A26; --- Antecedents of OP. Bank Ex. A27; -- RBI Guidelines.
Ex. A28; --- Visiting card of Kamlesh M. Rangan.
Ex. A29; -- Car Loan details of Kotak Mahindra.
Ex. A30; 14.07.2001 Receipt issued by Kotak Mahindra Ex. A31; 19.12.2002 Prepayment closure of loan account.
Ex. A32; 08.09.2003 No objection Certificate issued by Maruti Countrywide.
Ex. A33; 15.12.2004 Letter from Op to complainant.
Ex. A34; 18.03.2005 Letter from Op to complainant.
Ex. A35; 27.09.2006 Letter from American Express Bank to complainant.
Ex. A36; -- E-mails from OP to complainant.
Ex. A37;
Ex. A38; -- State of account issued by OP to complainant.
Ex. A39 -- Credit Information Review of CIBIL Ex. A40 Ex. A41; -- Frequently asked questioned issued by CIBIL.
Ex. A42; -- Code of Banks Commitment to Customers Ex. A43; -- Banking Codes & Standards Board of India Ex. A44; -- Fair Practice Code for Credit Card Operation Ex. A45; -- Ops version of Fair Practice Code for Credit Card Operation Ex. A46; -- About OP Bank Ex. A47; -- News item in Deccan Chronicle.
Ex. A48; 25.2.2008 Pre-approved loan issued by OP bank Ex. A49; 06.09.2008 Letter from OP to complainant.
Ex. A50; 08.07.2008 Letter from OP to complainant.
DOCUMENTS MARKED FOR OPPOSITE PARTY :
Ex. B1 -- Credit Card Statements issued by OP to to complainant.
Ex. B26
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER Dt. 17. 12. 2009.
*pnr CORRECTED O.K. CORRECTED O.K.