ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not sending the amount to his sister handed over to OP, not refunding the entire amount and to refund of Rs.3,00,000/- along with compensation and due to waste of his time by imposing a compensation of Rs.5,61,000/-, for Rs.1,00,000/-towards damages for causing him harassment, discomfort, mental agony and hardship, for Rs.6,00,000/- as punitive damages. In all Rs.15,61,000/- and for other reliefs as the Commission deems fit.

2.       The brief facts of the complaint are that; the OPs 1 to 5 are in the field of providing service in foreign exchange and also sending money to the beneficiaries as per the rules and procedure. They are foreign exchange dealers. Complainant wanted Rs.5,00,000/- to be transferred to his sister who was residing in New York USA. He handed over Rs.5,00,000/- to Sudheendra K L who is an employee of  OP 1 and 2,  on 22.02.2016 along with required documents such as Pan Card, Driving License, his sister Pass Port and Bank A/c information in New York and filled up the required forms. Inspite of 2 weeks lapsed the amount did not reach his sister and on enquiry, Sudheendra K L informed him that the money transfer has been put for hold in NASTRO. He again requested him to fill 2 forms with a request to return the funds from HDFC Bank and another was to request for 3^rd party transfer form ICICI Bank. Inspite of it the same was not transferred.

3.          Complainant had to bring to the notice of OP 1 and 2.  Mr. Seshadri Vasan of OP 1 assured him that the money would be returned by 24.04.2016. He wrote an email to the nodal officer and appellate authority of Matrix giving him 48 hrs to refund the amount. He was informed that Mr. K L Sundheendra has misappropriated the funds. Inspite of it, OP 1 and 2 made arrangement to refund Rs.2,00,000/- on 14.05.2016 whereas still balance of  Rs.3,00,000/- to be paid. The company is responsible for the lapses on the part of its employees. The act of OPs in not sending the amount to his sister in USA, and not refunding the entire amount, amounts to deficiency in service on the part of the OP and hence prayed to allow the complaint.

4.        Earlier this complaint was filed against OP 1, 2 and 3 i.e. Chairperson and Branch Manager of Matrix cellular International Service Private Limited and K L Sudheendra the employee of the OP, and afterwards by filling application also included the Matrix Forex Services Private Limited, of New Delhi and Branch Manager at Bangalore as OP 4 and 5.

5.      Upon the service of notice, OP 1 and 2 appeared before the Commission and filed their version. OP 3 though served with notice remained absent, and hence place Exparte. OP 4 and 5 appeared before the Commission through Advocate Sri. GGJ and VBR who filed memo of undertaking and prayed time to file Version and Vakalath.  At a later date, they did not file the Version and Vakalath.

6.      In the version filed by OP 1 and 2, it is contended that the complaint is not maintainable either in law or on fact and complainant has suppressed material information and the complaint is misguided and bad in law. It is further contended that OP 3 Mr. K L Sundheendra received Rs.5,00,000/- from the complainant in his personal capacity and misrepresented to the complainant that he is acting on behalf of OP company. Afterwards, he admitted voluntarily that the transactions with the complainant was misrepresented and returned Rs.2,00,000/- to the complainant. The act of said Mr. K L Sudheendra was outside the scope of employment. The entire complaint against OP 1 and 2 is that conceived and construed interpretation of doctrine of vicarious liability. It is further contended that the transaction between the complainant and OP 3 was not within their knowledge and company never received the amount from the complainant.

7.      On coming to know the misdeeds of Mr. K L Sudheendra, OP company promptly initiated a internal enquiry and found that he has severally violated the terms and conditions of the employment in a manner greatly pre judicial to the interest of the company and even they terminated his services and registered a police complaint against him for his illegal and dishonest act and it has acted in a most responsible, prudent manner with at most respect to the consumer.

8.         Denying all the allegation made against him, it is contended that in each and every para of the complaint, it is a private company doing foreign exchange services in 98 different cities in India, and OP 3 was appointed as Manager-Forex (Sales) on 14.03.2015 whose task was providing foreign exchange, currency cards and currencies of various countries to the clients travelling abroad. He undertook to abide by the company regulation and to act all times to the interest of the company. On March 29 - 31, 2016 company received email from the complainant requesting to refund Rs.5,00,000/- and they were shocked at the  allegation made by the complaint, and the company began an investigation against OP 3 and found that OP 3 had engaged with unauthorized transaction with 3^rd parties and he was terminated for fraud and professional misconduct and police complaint was also logged. Inspite of it, complainant has proceeded to file this complaint. OP 3 has sent an email to the complainant that OP 1 and 2 (the company) is not responsible for paying the amount and he has paid Rs.2,00,000/-  to the complainant and that he would repay the balance as expeditiously as he could. OP Company has never received receipt and any amount from the complainant. Hence there is no negligence or deficiency in service and prayed the Commission to dismiss the complaint

9.     In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

11.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties. As admitted by OP 1 and 2, Mr. K L Sundheendra OP 3 in this complaint was an employee of OP 1 and 2. It is also admitted by OP 1 and 2 that upon the complaint by the complainant regarding refund of Rs. 5,00,000/-, they suspected the role of OP 3 and initiated the enquiry and found lapses on the part of OP 3, and terminated him for fraud and professional misconduct. It is also in the evidence of both parties that the complainant has received and OP 3 has paid Rs. 2,00,000/-.

12.      The balance of Rs.3,00,000/- is to be paid to the complainant. OP 1 and 2 have also logged the complaint against its employee that is OP 3 Mr. K L Sudheendra before the police alleging fraud against him and further removed him from the service. When such being the case, OP 1 and 2 and the added parties OP 4 and 5 cannot escape from their liabilities for the act done by the employees. The owner is responsible on the principle vicarious liability and master servant liability. In view of this we answer point 1 Partly in the affirmative as OPs 1 to 5 have not refunded the amount of Rs.3,00,000/- received by them out of Rs.5,00,000/-. Hence there is deficiency in service and OPs are bound to refund the same jointly and severally along with interest @ 18 % per annum since the said amount has been utilized together for their business purpose.

13.    Further OPs are jointly and severally to pay a sum of Rs.25,000/- towards damages for causing mental agony strain and further Rs.10,000/- towards litigation expense as OPs made the complainant to approach the Commission by engaging his counsel by paying him his professional fee. Hence we answer point 2 partly in the affirmative. We make it clear here that OP 1, 2 and 4 and 5 are at liable to realize the amount of Rs.3,00,000/- with interest @ 18% that is paid to this complainant by taking action against OP 3 and pass the following order;

ORDER

1. Complaint is allowed in part with cost.
2. OP are directed jointly and severally to pay Rs.3,00,000/- to the complainant along with interest @ 18 per annum from the date of receipt of the amount of the complaint 22.02.2016 till payment of the entire amount along with damages of Rs.25,000/- and cost of litigation of Rs.10,000/-
3. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this 12^th day of NOVEMBER 2020)

MEMBER                        PRESIDENT