Date of filing:- 04/02/2018.

Date of Order:-27/12/2019.

DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)

B A R G A R H

Consumer Complaint No. 67 of 2018

Saroj Kumar Mahapatra, S/o Hara Krishna Mahapatra, aged about 49(forty nine) years, Occupation:- Service, R/o Ward No.1(one), Bargarh, Po/Ps/Tahasil/Dist. Bargarh. ...... ..... ..... Complainant.

-: V e r s u s :-

1. The Manager Customer Correspondence Unit, DLF Infinity Towars, Tower-C, 12^th Floor, Block-2, Building-3, DLF Cyber City, Gurugram, Haryana-122002.

2. The Manager , Flip Cart Customer Fssase Vaishnabi Summit Care No.6/7^th Madrs, 80 Feet Road, 3^rd Block Kormangala Industrial Layout Bangalore, Karnataka-560034.

Counsel for the Parties:-

For the Complainant :- :- Sri M.Sahu, Advocate with associate Advocates.

For the Opposite Party No.1(one) :- Sri S.Agrawal, Advocate with associate Advocates.

For the Opposite Party No.2(two) :- Sri R.K.Satpathy, Advocate with associate Advocates

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).

Dt.27/12/2019. -: J U D G E M E N T:-

Presented by Sri Krishna Prasad Mishra, President:-

Brief Facts of the case;-

In persuasion to the provision of the Consumer Protection Act 1986 U/s 12, the Complainant has filed the case against the Opposite Parties on the ground of deficiencies of service and unfair trade practice against the Opposite Parties as envisaged hereunder.

The case of the Complainant is that he is a customer of the Opposite Party No.1(one), vide his consumer S.B.I Credit card No.4377 4869 7438 8777, being persuaded by the offer of the Opposite Party No.2(two) on purchase of a Mobile phone for Rs.14,066/-(Rupees fourteen thousand sixty six)only with zero EMI for nine months, he purchased the same from the Opposite Party No.2(two) online by paying the amount of EMI through his same S.B.I. Card, but to his allegation as per the offer of the Opposite Party No.2(two) he was supposed to pay an amount of Rs.1,562.88/-(Rupees one thousand five hundred sixty two and eighty eight paise)only but an amount of Rs.1,767/-(Rupees one thousand seven hundred sixty seven)only has been deducted from his said account for three months thereby he is at loss of the differential amount, which amounts to unfair trade practice on the part of the Opposite Parties jointly and severally for which has suffered both mentally and financially.

In furtherance to his case he has put his said grievance by witting through and E-mail before the Opposite Party No.1(one) but he avoided the same on different pretext consequent upon which has served the Opposite Parties with pleader Notice but to no effect from the Opposite Party No.1(one) and though the Opposite Party No.2(two) replied but it seemed to him to be a extraneous acts on his part thus has preferred to file the case before the Forum with a claim of the refund of the excess amount paid by him and praying for a compensation amount of Rs.30,000/-(Rupees thirty thousand)only towards his mental and financial suffering, in support of his such allegation has relied on the following documents:-

1. Office Copy of the pleader Notice Dt.03/04/2018.

2. Office Copy of the pleader Notice Dt.22.09.2018.

3. Reply of Notice Dt.03.04.2018.

4. Copy of the grievance raised by the Complainant before the Opposite Parties.

5. Bill raised by the Flip cart.

6. Advertisement of S.B.I.Card.

Having gone through the complaint, it’s accompanied documents and on hearing his Advocate the case was admitted and Notice was served on the Opposite Parties to appear and give their reply before the Forum accordingly they appeared through their Advocates and have filed their version separately.

The version of both the Opposite Parties are all complete denial to the case of the Complainant with the averments made therein, the Opposite Party No.1(one) has categorically denied the contents of the Complainant stating that his case is not maintainable as has tried to conceal the total facts of the case and has tried to mislead the Forum, beside that also has a voluminous version to defy the case of the Complainant giving a lot of data with regard to the transaction of the Complainant through his said Card and also has made an averment that if at all any dispute arises between the parties it needs to be referred to the sole Arbitrator as such this Honorable Forum lacks jurisdiction to adjudicate the case.

Furthermore with regard to the version of the Opposite Party No.2(two) also he has filed a voluminous version stating therein a plea of complete denial to the case of the Complainant , he has made averments that he has never committed deficiencies in rendering his any service rather has claimed that there is some dispute with his operative bank and he has not received any excess amount from the complainant beside that has claimed that there company is an intermediary agency only engaged in supplying and selling and is not at all liable for any action against the cause between the Parties who sells and the purchaser, and in support of his such averments has referred to the relevant provision of law with others.

In addition to the pleadings of the Parties the learned Counsels for the respective parties placed their arguments at length before the forum in their individual case, so having regard to the materials available in the record and on hearing the respective counsels ,the following points of issues have come up before us to adjudicate the case:-

1. Whether the case in the present form is maintainable before the Forum and whether the Opposite Parties are deficient in rendering service to the Complainant or have committed unfair trade practice ?

2. Whether the complainant is entitled to any relief ?

Firstly while dealing with the Issue No.1(one), after going through the pleadings and the documents of the parties vividly and on hearing the arguments placed by the respective counsels of the parties it came to our Notice that it has been admitted by the Opposite Parties in their version that the Complainant has purchased the Mobile phone through the Opposite Party No.2(two) and made payment against such purchase through his bank to whom he has been paying service tax as such in our view the Complainant is a consumer/customer of the Opposite Parties, further with regard to the averments made by the Opposite Party No.1(one) that any dispute arising out of any dispute among them is subject to the decision of the Arbitrator appointed by the bank, for which the case filed before the Honorable Forum is not maintainable is not acceptable in view of the provision of law as envisaged U/s 3 of the Consumer Protection Act 1986 that the provision of the Act is in addition to any law for the time being in force but not in derogation of the same and in this case it is apparent on the face of the record and also admitted by the Opposite Parties that the Complainant is a consumer of their respective business organization, as such the complainant is well equipped with law to choose an option to come to the present Forum with a prayer to redress his dispute in as much as the case relates to an allegation against two opposite Parties as such in our prudent view the case is very much maintainable before the Forum.

Apart from the maintainability of the case with regard to the question as to whether the Opposite Parties are deficient in rendering the due service of the Complainant, in this regard having gone through the entire material available in the record, it reveals therein that the complainant has purchased the said mobile through the Opposite Party No.2(two) and has made the payment thereto as EMI @ Rs.1,562.88/-(Rupees one thousand five hundred sixty two and eighty eight paise)only through his S.B.I card vide No-4377 4869 7438 8777 but it reveals from the record that an amount of Rs.1,767/-(Rupees one thousand seven hundred sixty seven)only has been debited from his such account which has also been admitted by the Opposite Party No.1(one) but in reply he has stated in his version that the excess amount deducted has been refunded to him from their end but later on if it is not credited to his account then it was the fault of the Opposite Party No.2(two) so he is liable for the same instead of him, which it’self speaks of it’s deficiencies in service because the act of transferring the amount as advised by the customer/complainant in exact amount is the basic duty of the Opposite Party No.1(one) and if any discrepancy arose thereto is the responsibility on it’s part to sort it out but in this case the Opposite Party No.1(one) has shifted it’s responsibility on the Complainant for which the Complainant has to suffer with additional monetary loss against which the Complainant has made several representation to both Opposite Parties but the dispute has not been settled by either of the party but however it is evident from the record that an amount of Rs.15,903/-(Rupees fifteen thousand nine hundred three)only in total against the EMI has been collected from the complainant in stead of Rs.14,066/-(Rupees fourteen thousand sixty six)only, so now the total burden of prove in excess deducted from the Complainant is on the Opposite Party No.1(one), to which even in spite of several reminder the Opposite Party No.1(one) has failed to satisfy him thus has caused mental and financial agony to him, in view of such circumstances we are of the view that the Opposite Party No.1(one) as the operative Bank of trust of the Complainant it is it’s primary duty to sort it’s fault on it’s own and refund back the Loss of excessive amount deducted from his account but has failed to do so which amounts to unfair trade practice coupled with deficiencies of service on it’s part ,thus our view is expressed in favor of the Complainant and we are of the view that there is no fault on the part of the Opposite Party No.2(two).

Secondly with regard to the claim of relief of the Complainant, as we have already discussed in detail of the case and have opined against the Opposite Party No.1(one), and as we don’t find any deficiencies on the part of the Opposite Party No.2(two) in serving the Complainant, we are of the view that the Opposite Party No.1(one) is liable for the deficiencies in rendering service and unfair trade practice caused to the Complainant thus is entitled for the Compensation for the same as such our order follows.

-: O R D E R :-

The Opposite Party No.1(one) is directed to refund the excess amount collected from the Complainant after due calculation in total with interest @ 8%(eight percent) per annum from the date of filing of the case till the date of Order, and further directed to pay him an amount of Rs. 5,000/-(Rupees five thousand)only as compensation in lieu of his mental financial harassment within thirty days of receipt of the Order in default of which the total amount would carry an interest @ 12% (twelve percent) per annum till the actual realization of the total amount.

In the result the Complaint is allowed against the Opposite Party No.1(one) and since no case is proved against the Opposite Party No.2(two), he is exonerated from the allegation made by the Complainant, accordingly the case is disposed off being pronounced in the open Forum, to-day i.e .on Dt. 27.12.2019.

Typed to my dictation

and corrected by me.

( Sri Krishna Prasad Mishra)

                      P r e s i d e n t.

                                                             I agree,

                                       ( Ajanta Subhadarsinee)

                                                   M e m b e r (W).

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