SRI. SAJEESH.K.P     : MEMBER

    The complainant has  filed this complaint  under Sec.12 of the Consumer Protection Act 1986 seeking direction against the 1^st OP to return  Rs.3045/- and issue clearance certificate stating that entire loan has been paid by the complainant in connection with the mobile phone and also to pay Rs.4,00,000/- as compensation for the mental agony pain and sufferings.

Complaint in brief :-

   On 19/7/2018 the complainant purchased a mobile phone by using the credit card issued by 1^st OP from 2^nd OP on the basis of advertisement offered by OPs that Redmi Note 4 worth Rs.12,999/- will be available for Rs.9899/- through EMI scheme of 1^st OP on 17/7/2018.  Before purchasing the  phone complainant paid Rs.6200/- to 1^st OP to avail the offer of OPs.  The EMI of the mobile phone is 989/- per  month which should be paid in 10 monthly instalment.  But 1^st OP collected huge amount from complainant’s  account and therefore complainant sent  an e-mail to 1^st OP demanding to comply the offer  conditions  during the purchase of mobile phone and to return the amount of Rs.3045/- which was  excessively collected from his account.  On 28/2/2019, the 1^st OP sent a  false reply that at the time of purchase of mobile, the complainant’s account not maintained sufficient amount.  The complainant paid the entire balance amount of Rs.9300/- in 2 instalments  and after that he demanded to provide clearance certificate and to remit Rs.3045/- which was excessively collected by 1^st OP.  The 1^st OP failed to comply the offer made by them and illegally captured money from complainant  lead to deficiency in service and unfair trade practice and hence this complaint.

         After filing the complaint, commission  issued notice to  both OPs and the notice of 1^st OP  returned as unserved  it is  deemed to be served, so 1^st OP as set exparte.  2^nd OP’s notice not returned so far hence it is presumed that  notice has been given to 2^nd OP hence  2^nd OP is set exparte.  Both OPs  have not  appeared before the commission and not filed any version.  Hence the commission  held that  the OPs have no version and the case proceed against the OPs as set exparte.

         Even though, the opposite parties have  remained ex-parte, it is for the complainant to establish the allegation made by him against the  OPs.  Hence the  complainant was  adduced evidence in the form of proof  affidavit and documents.  Accordingly the  complainant  has chosen to produce his affidavit along with  documents  marking as Exts.A1 to A6.   Ext.A1 is the  bill issued by 2^nd OP dtd 19/7/2018, Ext.A2 is the copy of order details  issued  by 2^nd OP dtd.19/7/18.  Ext.A3  is the copy of statement of account issued by SBI, Ext.A4 is the copy of SBI gold card monthly issued by 1^st OP.  Ext.A5 is the  e-mail communication dtd.28/2/2019 and Ext.A6 is the  e-mail communication  dtd.4/3/2019.  So the OPs remained absent in this case.  At the end the commission heard the case on merit.

    On the perusal of  documents produced  by complainant, the complainant was examined as PW1.   Ext.A1, the  purchase bill of mobile phone worth Rs.9899/-, but Ext.A2 it  seen that the actual selling price of mobile is Rs.12999/-.  But  after the deduction of shipping discount, 1^st OP card’s discount the total price shown as Rs.9899/-.  As per Ext.A3 it is seen that an amount of Rs.2658/- is excessively collected from complainant beyond the price of mobile phone.  Ext.A4 is the details of the gold card regarding the  offers.  Ext.A5, it is seen that the complainant queried about the  withdrawal of extra charges by 1^st OP from his bank account and  the complainant admitted that he got Rs.401/- reversed to his account and OPs made the reply that they have not converted their card in merchant EMI due to less amount available for booking.  Anyhow there is no evidence before the commission regarding payments and withdrawal during 15/8/2018, and during the month of February to March 2019.  It is seen that an amount of Rs.2658/- withdrawn by 1^st OP  over after the full payment of mobile phone.  So the commission is in view that excessive collection of money from complainant lead unjust enrichment and is liable for deficiency in service. Hence the commission came into a conclusion that the action of 1^st OP is  led to  deficiency in service.  Under these circumstances we are of the considered view that  the 1^st OP is liable to return the  amount of Rs.2658/- to complainant.   Hence the complaint is  allowed in part.  Accordingly we proceed to pass the following.

     In the result complaint is allowed in part.  The  1^st opposite party is directed to reimburse Rs.2658/- which was excessively collected from complainant  as per Ext.A3  towards  payment  of mobile phone and also  1^st opposite party   is directed to issue clearance certificate  to complainant and to pay compensation of Rs.3000/- and Rs.2000/- as cost of litigation to within 30 days of receipt of this order. In default, the amount of Rs.2,658/- carry interest @ 9% per annum  from the date of order till realization, failing which complainant is at liberty to file execution application against  opposite parties as per the provisions of Consumer Protection Act 2019.

Exts:

A1- purchase bill dtd19/7/2018

A2-Copy of order details dtd.19/7/2018

A3-copy of statement of account of SBI

A4- Copy of SBI gold card

A5 &A6- E-mail communications

PW1-Rakehs.C.K- complainant

Sd/                                                                                 Sd/                                                                   Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva                                                            /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR