Date of filing : 17.7.2017
Judgment : Dt.27.11.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Bidyut Pati Dey against the Opposite Parties (referred as OP hereinafter) namely (1) Jubiliant Food Works Ltd. (Domino’s) (2) The Manager Domino’s Pizza, Uttarpara, Hooghly, (3) The Regional Manager, Eastern Region Office, Domino’s Pizza.
Case of the Complainant, in brief, is that being intended to purchase two pizzas, the Complainant along with his two children went to the outlet of Domino’s Pizza at Uttarpara Hooghly on 3.2.2017 at 15.45 hrs placed an order for two pizzas and to make payment of Rs.721/- towards price of the said pizzas swiped his Debit Card but the Complainant was told by the cashier of the said outlet that no payment slip had been scrolled out and thus it was considered that payment had not been made and the Complainant had to swipe the card once again.
The Complainant has stated that he had received an SMS from the concerned Bank intimating payment of Rs.721/- which he had showed the cashier of that outlet but the cashier refused to accept the same and in presence of some other customers took away the food items from the Complainant which made the Complainant feel humiliated in front of the said customers. The Complainant has further stated that he informed the incident to the Manager i.e. OP No.2 by a letter dt.17.2.2017 but the OP paid no heed to that letter and finding no other alternative, the Complainant by filing the instant Consumer Complaint prayed for direction upon the OPs to refund Rs.721/- along with compensation of Rs.50,000/-.
The Complainant annexed photocopies of letter dt.17.2.2017 issued by the Complainant to OP No.2, letter dt.1.3.2017 issued by the Complainant to OP No.3, Statement of A/C being No.0163210024231, copy of Passbook of A/C No.0-163010406791.
The OPs contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the Complainant placed order for two pizzas and attempted to make payment by swiping Debit Card but the transaction was unsuccessful although the Complainant received SMS from the Bank intimating that an amount of Rs.721/-had been debited from his account. The OPs have further stated that the Complainant has no locus standi to file the Consumer Complaint since the document filed by the Complainant showed that the amount has been debited from the account of Anita Electric Works. Moreover, due to fault in the server of the concerned Bank, transaction was unsuccessful and the OPs asked its gateway partner Pine Labs Pvt. Ltd. to intimate whether such amount had been credited to their account and in reply said Pine Labs Pvt Ltd. in writing intimated that no such amount had been received by them and, therefore, there was no deficiency on the part of the OP and accordingly, prayed for dismissal of this case.
The OP annexed certificate issued by Pine Labs Pvt. Ltd., Statement of A/C being No.0163210024231, e-mail exchanges.
The Complainant adduced evidence. The Complainant in his evidence, has stated that he is the sole proprietor of M/S Anita Electric Works.
The Complainant adduced copy of Renewal Certificate issued by Uttarpara Kotrung Municipality in favour of Bidyut Pati Dey proprietor/partner of M/S Anita Electric Works, tax payment receipt. The OP also adduced evidence. Both the parties filed questionnaire and reply respectively.
Point for determination
- Whether the Complaint is maintainable in its present form
- Whether there is a deficiency on the part of the OPs
- Whether the Complainant is entitled for the relief as prayed for
Decision with reasons
Point No.1
Admittedly, the Complainant along with his children went to the OP’s outlet for purchasing food items i.e. two pizzas on 3.2.2017 and intended to make payment by his Debit Card. The Complainant claimed to have successfully paid the amount by his Debit Card but the Cashier did not accept the same since no payment slip had been scrolled out from the swipe machine.
On scrutiny of documents i.e. A/C being No.0163010406791, which stands in the name of the Complainant, no such transaction has been found. Further, it appears from statement of account being A/C No.0163210024231 filed by the Complainant, that an amount of Rs.721/- has been debited from that account and credited in favour of Domino’s and said account stands in the name of Anita Electric Works.
Therefore, it is evident that the Complainant has filed the instant Consumer Complaint in respect of said transaction which has been made from the account of Anita Electric Works. The Complainant has claimed that he is the proprietor of Anita Electric Works but the Complainant did not implead Anita Electric Works as a party to the instant case.
As per provision of Section 2(1)(d) of the C.P.Act, Consumer means a person who buys any goods or avails any service passing consideration in full or in part or promise to pass the same. In the instant case, consideration is claimed to have been passed from Anita Electric Works since the document the Complainant relied upon i.e. statement of A/C in respect of Passbook of Anita Electric Works shows Rs.721/- has been debited from the said account to credit of Domino’s. Therefore, it is very much evident that the alleged payment has been made on behalf of Anita Electric Works but the said Anita Electric Works is not the party in the instant case. The Complaint should have been filed by the said Anita Electric Works being the aggrieved party and it could have been represented by the present Complainant namely Bidyut Pati Dey. The Complainant has failed to implead the said Anita Electric Works in the instant case and, thus, the instant petition of complaint suffers from non-joinder of necessary party.
Point No.1 is decided accordingly.
Point Nos.2 & 3
Since Point No.1 is decided negative, there is no scope to go into the merit of the Consumer Complaint.
In the result, the Consumer Complainant does not succeed.
Hence
ordered
That CC/397/2017 and the same is dismissed on contest but without any order as to cost.
