| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.279 of 21-04-2016 Decided on 10-05-2017 Pawan Kumar S/o Prezi Lal, Proprietor of M/s Handi Pub Bar & Restaurant, Goniana Road Opposite Lake No.3, Bathinda, Tehsil and District Bathinda. ........Complainant Versus 1.HDFC Bank, Main Road Near Petrol Pump, Bathinda, through its Branch Manager. 2.Just Dial Private Limited, Palm Court, Building -501/B, 5th Floor, New Link Road Besides Goregaon, Sports Complex, Malad (W), Mumbai-400064, through its Managing Director. 3.Just Dial Private Limited having its Local Area Office at SCO No.60-61, 4th Floor, Sector 34-A, Chandigarh-160022, through its Authorized Person/Competent Person. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainant: Sh.N.S Narula, Advocate. For opposite parties: Ex-parte. ORDER M.P Singh Pahwa, President The complainant Pawan Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties HDFC Bank and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he is the proprietor of M/s Handi Pub Bar & Restaurant, Goniana Road opposite Lake No.3, Bathinda. It is only source of his income. It is alleged that the authorized agent of opposite party Nos.2 and 3 approached the complainant with the offer for advertisement and offered the trial pack for Rs.3371/-. The complainant has accepted the offer of trial pack, but he did not give his consent for further offer or for future. He has given the cheque from his account No.01872000008609 maintained with opposite party No.1, which was encashed on 27.5.2013. It is further alleged that although, the offer was only for trial pack, but opposite parties continued to charge @ Rs.1124/- per month in favour of opposite party Nos.2 and 3. These amount charged are being deducted from the account of the complainant monthly. He came to know about the illegal charging. He got issued a legal notice dated 9.6.2015 to opposite party No.1 requesting it not to make any payment from his account, but to no effect. Now, opposite parties started deducting Rs.1145/- per month and they are causing financial loss to the complainant. He has also got issued a legal notice dated 9.6.2015 to opposite party No.1 and requested it not to make any deductions from his current account, but opposite party No.1 did not accede to his request. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties. He has claimed Rs.38,396/- with interest @ 18% per annum and damages to the tune of Rs.50,000/- and litigation expenses to the tune of Rs.11,000/-. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.1. As such, ex-parte proceedings were taken against it. Earlier, opposite party Nos.2 and 3 appeared through their authorized representative and contested the complaint by filing their joint written version. In the written version, opposite party Nos.2 and 3 have pleaded that the allegations and averments made in this complaint, unless otherwise specifically traversed and admitted, are strictly denied and refuted. It is further pleaded that the allegations of the complainant against contesting opposite parties are false, frivolous, baseless and unsustainable. Contesting opposite parties are a public company incorporated under the provisions of the Companies Act, 1956. They carry on their business all over India. They provide local search related services to users in India through multiple platforms such as the internet, mobile internet, over the telephone voice and text SMS. They have also detailed the mode of service being provided, reference of which is not necessary at this stage. It is further pleaded that the complainant has not come to this Forum with clean hands and he has concealed the material facts. He does not qualify in accordance with the definition of 'consumer' as defined under 'Act'. The complaint is frivolous and averments made in the complaint against contesting opposite parties are false and baseless. The complaint is not maintainable as the complainant has availed services from contesting opposite parties from the year 2013 and executed the contracts and other documents with them. He has accepted the service without protest. He did not intimate at anytime till receiving the summons from this Forum to contesting opposite parties to stop the ECS or deactivate their service. On 30.4.2016, contesting opposite parties received the summons from this Forum and after receipt of summons, they became aware that the complainant has filed the complaint against them for deduction of money through ECS from his account. Contesting opposite parties stopped the ECS promptly after receiving the summons from this Forum. It is also asserted that contesting opposite parties provided the services as per their terms and conditions, to the complainant. In the end, contesting opposite parties have prayed for dismissal of complaint. The matter was posted for evidence of the complainant. Thereafter none appeared on behalf of opposite party Nos.2 and 3. As such, they were also proceeded against ex-parte. Complainant was asked to produce evidence. In support of his claim, the complainant has tendered into evidence photo copy of legal notice, (Ex.C1); postal receipt, (Ex.C2); photocopy of account statement, (Ex.C3); his affidavit dated 6.10.2016, (Ex.C4) and closed the evidence. We have heard learned counsel for complainant and gone through the file carefully. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is also submitted by learned counsel for complainant that the account statement, (Ex.C3) proves that opposite party No.1 has debited the various amounts from the account of the complainant by ECS whereas opposite party No.1 was having no instructions to debit these amounts. The complainant has also placed on record copy of legal notice, (Ex.C1). Opposite parties have not produced any evidence to rebut the claim of the complainant. Therefore, there is no reason to disbelieve this version. As such, the complaint be accepted. We have given careful consideration to these rival submissions. It is well settled that the complainant has to prove his case by affirmative evidence. The evidence produced by the complainant is copy of legal notice, (Ex.C1) alongwith postal receipt, (Ex.C2). Postal receipt, (Ex.C2) proves that the notice was dispatched to HDFC, Main Branch, Bathinda whereas the account was with HDFC, Main Road Near Patrol Pump, Bathinda. Therefore, in these circumstances, it cannot be concluded that the notice was delivered to opposite party No.1. Ex.C3, is copy of account statement. It will only prove that the certain amounts are debited from the account of the complainant in favour of opposite party Nos.2 and 3. Ex.C4, is affidavit of the complainant. It is repetition of the averments of the complaint. In the written version, opposite party Nos.2 and 3 have detailed that the complainant has availed the services till the date of receipt of notice of this complaint i.e. April 2016. This fact is not denied by the complainant in his affidavit. The amounts debited from the account of the complainant were on account of services provided by opposite party Nos.2 and 3. As per opposite party Nos.2 and 3, the complainant has availed the services up to April 2016. There is nothing to show that opposite party Nos.2 and 3 were ever asked to stop the services. From all angles, the complainant has failed to prove any deficiency in service on the part of opposite parties. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- (M.P Singh Pahwa) 10-05-2017 President (Jarnail Singh) Member
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