DATE OF DISPOSAL: 26.09.2018.
Sri Purna Chandra Tripathy, Member:
The complainant Sunil Kumar Padhy has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party ( in short the O.P.) and for redressal of his grievance before this Forum.
2. Briefly stated the complainant is the partner of M/s Shree Infotech, a partnership Firm providing man power to the establishments earning their livelihood for self employment having valid license No.II-929 dated 31.12.2005 of local labour Authorities, Berhampur. The complainant is a valuable customers of the Bank of O.P., having an account vide its account number 00000010111285792 for day today business activities. However, the present complainant has been authorized by the other partners to deal with this matter relating to unauthorized debit made by the O.P. in the said bank account. All of a sudden on 2nd February 2016 without any prior intimation to the complainant, the O.P. debited an amount of Rs.2,77,341/- and the reasons best known to the O.P. Inspite of the complainant approaches, even the O.P. could not think it fit to intimate after its payment till date. Thereafter the complainant without having any alternatives, issued a 15 days pleader’s demand notice dated 17.02.2016 to the O.P. for deficiency of service, stating that the unauthorized transaction of Rs.2,77,341/- made to the account of the complainant is illegal, arbitrary and unjust and further demanded the amount debited is to be credited immediately with interest and compensation for mental agony and harassment. Alleging deficiency in service on the part of the O.P. the complainant prayed to direct the O.P. to pay the amount debited illegally of Rs.2,77,341/- with a compensation of Rs.2,00,000/- for mental agony and harassment and cost of litigation of Rs.5000/- in the best interest of justice.
3. Upon notice the O.P. filed version through his advocate. It is stated that the averments made in the complaint petition are not all true and correct and the complainant is put to the strict proof of such of those allegations which are not specifically admitted herein. It is stated that in Para-1,2,3 and 4 are not all true and denied by this O.P. It is submits that, Employees State Insurance Corporation through its Authorized Officer vide its letter No.44-Y-11/15/44-6530-1013-RR dated 28.01.2016 issued a Attachment/prohibitory order in respect of bank account maintained by the complainant for realization of certificate dues amounting to Rs.2,72,341/-. In the said notice the authorized officer in terms of Rule-26(3) of 3nd schedule of income Tax Act, 1961 read with Section 45-H of ESI Act, 1948 required this O.P. “to pay the Recovery office, ESI Corporation, Odisha, Bhubaneswar through Account payee Bank Drafts/Banker’s cheque forthwith from out of the amount presently held by you as described above to extent of Rs.2,77,341/- in one lump-sum or in parts in case present paucity of funds in the said Bank Accounts/present immaturity of the pay ability of the dues or as soon as and when, any amount becomes due from you to the defaulter subsequent to issue of this order unless otherwise advised by the undersigned” and further stated therein that, “If you fail to make compliance as required/ordered her before, the undersigned, as per Clause (x) of Sub-Section (3) of Section 45-G of ESI Act, 1948/Rule 36(3) Income Tax (Certificate Proceedings) Rules, 1962 read with Section 45-H of ESI Act, 1948 will initiated further proceedings against you/your Bank/Institution to recover the aforesaid certificates dues from your Blank/Institutions as if you/your Bank/Institution were the defaulter in respect of the amount specified in this notice”. The aforesaid order was issued by the recovery officer being authorized by Central Government to act as Recovery officer for the Stated of Odisha under Section 45 (1) (b) of ESI Act, 1948 as per Notification published in Gazette of India and in exercise of powers delegated to him under section 45-G of ESI Act, 1948 by the ESI Corporation in their meeting held on 24.02.1994. In view of the aforesaid notice, this O.P. with due deliberation and discussion held with the complainant, deducted the aforesaid certificate dues amounting to Rs.2,77,341/-and deposited the same in the designated account of ESI Corporation, Odisha, Bhubaneswar, vide DD No. 215497 dated 02.02.2016 and the receipt of the same has been acknowledges by the release order dated 05.02.2016 by the recovery officer of ESI Corporation, Odisha, Bhubaneswar. This O.P. has acted as per the direction of a statutory authority and deposited the amount, so it is neither liable to refund the amount nor responsible for any consequence arising out of the said act. As the amount has been debited by the order of a competent government authority, and the matter was discussed within the knowledge of the complainant, there is no deficiency of service by this O.P. Thus the act of deduction of the amount as per the order of a statutory authority cannot be termed as an illegal transaction and the O.P. is not liable for mental agony, harassment etc. The complainant is a partnership firm carrying out commercial activities and the present cause of action for this complaint petition has arisen out of those commercial activities and the complainant firm is also not covered within the scope and ambit of “consumer” as defined under the Consumer Protection Act, 1986. Hence the O.P. prayed to dismiss the complaint with exemplary cost in the interest of justice.
4. On the date of hearing of the consumer complaint learned counsel for the complainant and O.P. was present. We heard argument from both sides at length. We perused the complaint petition, written version, written arguments and documents placed on the case record. It reveals that the O.P. has debited Rs.2,77,341/- from the complainant’s account after getting the letter No.44-Y-11/15/44-6530-1013-RR dated 28.01.2016 of the ESI Authority who has issued the Attachment/prohibitory order in respect of the bank account maintained by the complainant for realization of certificate dues amounting to Rs.2,77,341/-. It also reveals that in clause “7” of the Attachment/prohibitory order of the ESI, Corporation that if the Bank fails to make compliance as required/ordered, the undersigned i.e. Recovery Officer, Regional Office, ESI Corporation, Odisha, Bhubaneswar as per clause (X) of Sub-Section (3) of Section 45-G of ESI Act, 1948/Rule 36(3) Income Tax (Certificate Proceedings) Rules, 1962 read with Section 45-H of ESDI Act, 1948 will initiated further proceedings against you/your Bank/Institutions as if you/Your Bank/Institution were the defaulter in respect of the amount specified in the notice”. Further it also reveals that the O.P. has not issued any prior notice to the complainant before debiting Rs.2,77,341/- from the complainant’s account. Though options were left for the O.P’s Bank to set hold the complainant’s account and to issue notice before debiting money from the complainant’s account but O.P. has not opted it. Law is well settled that debit of any money from the customer’s account without notice and knowledge of the customer amounts to deficiency in service and it is also not tenable in the eye of law. Though there was statutory obligation on the part of the O.P. Bank, but the responsibility towards the customer can not be ignored.
5. On foregoing discussion it is clear evident that the O.P. is negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.P. and the complainant has undoubtedly sustained mental agony for the acts of the O.P as such he should be compensated.
In the result, the complainant’s case is partly allowed against the O.P. on contest. The Opposite Party is directed to pay Rs.10,000/- (Rupees Ten Thousand) only towards compensation for mental agony and Rs.2000/- towards cost of litigation to the complainant within sixty days from the date of receipt of this order, failing which all the dues shall carry 16% interest per annum.
The order is pronounced on this day of 26th September 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
