State Consumer Disputes Redressal Commission
M/S. Icici Bank Ltd.,Rep By Its Manager & ... vs J.Venkatesh Perumal on 29 November, 2023
Daily Order IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Hon'ble Mr. Justice R. SUBBIAH PRESIDENT F.A.NO.313/2017 (Against order in CC.NO.8/2011 on the file of the DCDRC, Thiruvallur) DATED THIS THE 29th DAY OF NOVEMBER 2023 1. ICICI Bank Ltd., Rep. by its Manager Kumara Park Branch No.2, Kaushal Emerald Kumara Park Bangalore - 560 001 2. ICICI Bank Zonal Office Rep. by its Manager Credit Card Department Plot No.24, Block No.1 Arihant Inside, 2nd Floor Ambattur Industrial Estate Chennai - 600 053 3. The Manager ICICI Bank Ltd., Rep. by its Regional Manager M/s. K.Moorthy Regional Office, No.1, Cenatoph Road Counsel for Chennai - 600 018 Appellants /Opposite parties Vs. J. Venkatesh Perumal C/o. P.V.Pattu No.1/10, Mela Mettu Street M/s. T.R. Sethuraman Melapadappai Counsel for Chennai 601 301 Respondent / Complainant The Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint in part. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.8.3.2016 in CC.No.8/2011. This appeal coming before me for hearing finally on 25.8.2023, upon hearing the arguments of the counsel appearing for appellant and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order: ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the Opposite parties as against the order dt.8.3.2016 passed by the District Commission, Thiruvallur, in CC.No.8/2011, in allowing the complaint.
2. For the sake of convenience parties are referred as per ranking before the District Commission.
3. The brief facts of the complaint before the District Commission are as follows:
The complainant is having a Savings Bank Account No.625301534431 with the 1st opposite party. On the basis of the said account, the 2nd opposite party issued a credit card to the complainant. The credit card Number was 52395 11064951005. The 3rd opposite party is the supervising authority over the 1st and 2nd opposite parties. By using the credit card, the complainant had made a purchase for Rs.32,200/- on 4.2.2008, and repaid to the tune of Rs.35,100/- on various dates. After the repayment of the dues, the statement of account furnished by the 2nd opposite party on 15.5.2008 clearly states that there was no balance in original amount of Rs.32,200/- dt.6.5.2008. The complainant had not used the credit card from 7.5.2008 onwards. While so, to the shock and dismay, he received an e mail dt.2.6.2008 from the customer care of the 1st opposite party, on the subject of reminder regarding the due date for payment interalia stating that "
Mr.J. Perumal Venkatesh Payment on your ICICI Credit Card No.5236 xxxx xxxx 1005 is due on 6.6.2008. You may choose to pay the total bill amount of Rs.14519.47 or the minimum amount of Rs.12,320/-. Please ignore this message in case your payment is already made".
But actually, the complainant cleared the credit card due. Hence he ignored the email. But he had been receiving the same kind of emails continuously from 31.7.2008 for Rs.6740/- and another email dt.2.6.2008 for the same amount of Rs.6740/- as overdue on 3.8.2008.
Later, when the complainant had checked up as to whether his card has been terminated, he got a reply "pick the card" meaning that the card was not functioning. Therefore, it was presumed that the complainant's credit card had been terminated. When he used his ATM card on 20.10.2009 to draw an amount of Rs.20000/- as he had a sum of Rs.22,030/- in his account, it was shown as 'declined' , obviously meaning that the balance available was not sufficient. When he verified his statement of account from his Savings Bank Account for the period between 1.10.2009 to 20.10.2009, it was found that without the complainant's knowledge and consent a sum of Rs.21,970/- has been drawn from his account on 15.10.2009 and transferred to his credit account. When the complainant questioned the same, it was replied that the complainant had not paid for the credit card account, therefore they debited from the savings account. The complainant immediately verified the credit card statements, which showed that previous balance for his credit card as on 15.10.2009 was Rs.21,970/-, which on the same day has been debited from the Savings Bank Account, and credited to his credit card account. Even according to the credit card statement, the due date for payment for credit card was only on 2.11.2009, but the opposite parties have debited the amount even 3 weeks before the due date. This action of the opposite parties is illegal. Therefore, there is deficiency in service on the part of the opposite parties. Hence the complainant issued a legal notice on 21.4.2010. Inspite of the receipt of the notice, there was no reply. Hence he came forward with the present complaint alleging deficiency against the opposite parties praying for a direction to the opposite parties to pay a sum of Rs.8 lakhs towards compensation for mental agony alongwith cost of Rs.10000/-, and for a direction to re-credit a sum of Rs.21,970/- in his savings bank account.
4. The case of the complainant was resisted by the opposite parties, by filing their version as follows:
The complainant has given a credit card facility. The credit limit is Rs.62000/ on 4.2.2008, and the complainant had used the card for Rs.32,200/-, which is repayable in three equal monthly instalments @ Rs.10,733.33/- each. The 1st EMI started from 6th March 2008. The complainant also authorised Lombard insurance amount of Rs.12,235/- and convention insurance amount 24 EMI @Rs.56,587/-. The complainant has repaid the EMI for the usage amount Rs.32,200/- only. Even as per his own statement, the complainant has not repaid the insurance EMI amount. Hence late payment and other charges accumulate. The opposite party have a lien over the SB account of the complainant. This was intimated to the complainant on 9.9.2009, thereafter the bank had debited Rs.21,970/- on 15.10.2009. The complainant had not disclosed all these facts. The amount of Rs.21,970.27/- was debited in respect of the Lombard Insurance amount with the late payment. Therefore, there is no defective service on the part of the opposite party. Thus sought for dismissal of the complaint.
5. In order to prove the case, proof affidavits were filed by the parties, alongwith documents, which were marked as Ex.A1 to A9 on the side of the complainant. No documents were filed on the side of the opposite parties.
6. The District Commission, after analysing the entire evidence had come to the conclusion that there is deficiency in service on the part of the opposite parties on the ground that it is the duty of the opposite party to prove that there is a lien as stated by the opposite parties in debiting the EMI due for ICICI Lombard GIC Limited. In fact there is no such document produced on the side of the opposite party. Therefore, there is deficiency in service on the part of the opposite parties. Thus holding, had allowed the complaint, by directing the opposite parties to re-credit the sum of Rs.21,970/- alongwith interest @9% p.a., and to pay Rs.10000/- towards compensation.
7. The learned counsel for the appellants/ opposite parties had submitted before this commission that the complainant has availed credit card facility from the opposite party bank with a credit limit of Rs.62,000/-. He used his credit card to make a purchase for Rs.32,200/- on 4.2.2008. The said Rs.32,200/- was repayable in three equal monthly instalments of Rs.10,733.33/- with the first instalment due on 6.3.2008. The complainant had also authorised a Lombard Insurance amount of Rs.12,235/- and convention insurance amount of 24 equal monthly instalments. The 1st EMI started from 8.2.2008 and the EMI amount was Rs.56,587/-. Though the complainant has paid the credit card due, he has not paid the insurance EMI amount. Therefore, the opposite parties have deducted Rs.21,970/- from the complainant's SB Account. As per Sec.171 of the Indian Contract Act, 1872, the Banker's have general lien over the connected accounts against the general balance due by the holder of the account, even in the absence of a contract. Therefore, there is no deficiency in service on their part. Without considering these facts the District Commission has allowed the complaint. Thus prayed for dismissal of the complaint.
8. Keeping the submissions in mind, I have carefully gone through the materials placed on record.
9. There is no doubt that the Bankers are having general lien as per Sec.171 of the Indian Contract Act, 1872, over the connected accounts against the general balance due by the holder of the account, even in the absence of a contract. The Appellants/ opposite parties had submitted that by exercising the general lien, they have deducted the amount from the Savings Bank Account of the complainant towards the amount due for the payment of insurance viz. ICICI Lombard Insurance.
In this connection, It is to be seen that the submissions of the opposite parties are only in the air, and are not supported with any document. First of all the opposite parties have to establish that the complainant is having the insurance viz. Lombard general insurance, and secondly to prove that he is a defaulter in payment of the insurance EMI, thirdly, they have prove that they could exercise their lien for the non payment of the insurance amount, and therefore they have deducted the same from the account of the complainant. But in all these aspects, the appellants/ opposite parties have miserably failed.
Generally the payment of insurance EMI depends upon the interest of the insured. They may even discontinue the insurance. In this context, the duty cast upon the opposite parties to prove that the complainant is having the insurance, and he is bound to pay the insurance EMI without any default, and in such case of failure, the opposite parties can exercise their lien over the other connected account of the complainant, for payment of the insurance EMI due. When the appellants/ opposite parties being an organisation, having failed to establish their defence, they deserves no right in praying for dismissal of the complaint.
It is a general principle, mere pleading is not an evidence and the same should be proved in the manner known to law. In the absence of any documentary evidence in support of their contention, I do not find any justifiable reason to interfere with the order impugned, and I do not find any infirmity in the order of the District Commission. Accordingly, the appeal deserves to be dismissed.
10. In the result, the appeal is dismissed, by confirming the order of the District Commission, Thiruvallur, in C.No.8/2011 dt.8.3.2016. There is no order as to cost in this appeal.
R. SUBBIAH PRESIDENT INDEX : YES / NO Rsh/dRSJ/ ORDERS