Sri. Apurba Kr. Ghosh          ……….President

The Complainant has filed this case against the O.Ps. under the provisions of Consumer Protection Act and praying for the following order / reliefs:-

1. Directions against the O.Ps to refund a sum of Rs. 1,498/- + interest.
2. Directions against the O.Ps to pay a sum of Rs. 1,00,000/- towards compensation for not granting and allowing the legitimate entitlements in terms of the banking policy and for deficiency in service as well as for causing mental pain agony and harassment.
3. Cost of legal proceedings.
4. Any other relief/ reliefs to which the complainant is entitled.

            BRIEF FACT OF THE COMPLAINT

1. The complainant is a peace loving and law abiding citizen óf India having her address situated within the jurisdiction of this Commission.
2. That, the complainant on 25.01.2021 tried to recharge her mobile number 8961881287 of Rs. 1498/- which was debited from her Kotak Mahindra Bank Account being No. 4513109830 but the said recharge was failed / she was promised to refund within 2-7 days and in this regard the complainant received message from the OP No. 2 is “Payment of Rs. 1498 attempted via Airtel Thanks App through Net banking has failed/ order id 6759331192442093568” / she was asked to wait for 2-7 days for refund & if money has been deducted from her bank or contact her bank.
3. That, the complainant, after expiry of 7days, approached the OP No. 1 personally and through her representative on several occasions requesting for refund of that sum of Rs. 1,498/- .
4. That, the complainant sent email to the OP No. 1 on 09.02.2021, 16.02.2021, and 23.02.2021, requesting for refunding the sum of Rs. 1498/- / in all times the OP No. 1 rejected the application with reason “dispute regarding the online transaction has been rejected as the amount is settled in the merchants’ account”
5. That, the complainant approached the Assistant Director, Siliguri RO, Directorate of CA & FBP of Siliguri for mediation and refund of the amount made through online system. / the grievance no. was recorded as 564/2021 dated 13.03.2021.
6. That, the problem was not resolved after several meetings and the mediation was failed due to negligence on the part of the OPs.
7. That, the OP Bank authority on 26.11.2021 at mediation hall assured the complainant verbally that they had identified the payment and it is laying with “PAY YOU” as stated and it will be refunded within 7 days.
8. That, the said amount has not been refunded till date and till date her genuine grievances and entitlements have not been considered by the OPs and thereby the complainant has suffered financial loss and injury and such deliberate and willful inaction on the part of the OPs jointly as well as severally liable for unfair trade practice.
9. That, the cause of action firstly arose on 25.01.2021 when the transaction of Rs. 1498/- was failed and every occasion when the complainant had requested the appropriate authorities to refund the said sum of money but such request was rejected / turned down by them and the cause of action lastly arose on the date when the mediation case was dropped and the cause of action has arose within the jurisdiction of this Commission and this Commission is entitled to entertain and adjudicate this case.
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Ld. Advocate of the Complainant files the following documents in support of his complaint:

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Notice was sent from this Commission to the OPs. On receipt of notice, the O.P No. 1 appeared before this Commission through Ld. Advocate,  filed  written version, denied all the material allegations of the Complainant.  In the written version, the OP No. 1 has stated that, this case is not maintainable in fact and law / the complainant has filed false, frivolous, vexatious complaint and to abuse the process of this Commission and therefore the complaint is liable to be dismissed/ no cause of action has arisen / there was no deficiency in service on the part of the OP No. 1.

The OP No. 1 admits that, the complainant maintains a savings bank account bearing no. 4513109830 with the OP No. 1 / the complainant has filed this case for refund of an amount whilst processing her mobile number recharge and the OP No. 1 has no liability as a sum of Rs. 1498/- was successfully deducted from the bank account of the complainant and the OP No. 1 is only a banker of the complainant and by no means the OP No. 1 can be made liable for the mobile number recharge not being successful. OP No. 1 has further stated that they have annexed a documents (Annexure –A) which clearly evidences that the amount of Rs. 1498/- was debited from the bank account of the complainant. It is further stated by the OP No. 1 that they have annexed Annexure B & Annexure C which clearly disclosed about the successful transaction and the payment gateway aggregator in the said transaction PayU, vide its email dated 10.02.2021 & 04.03.2023’, has confirmed the transaction to be successful and of funds having been remitted to the merchant namely Airtel’s Account( Annexure-C) and typically in a payment gateway transaction, a customer first places his/ her order and then presses the submit/ checkout button or its equivalent button on the ecommerce or merchant’s website or App and once it happens, the website / ecommerce platform takes the customer to a payment gateway where he or she enters all the relevant information about the bank or the card they are using to pay and then the gateway takes the user directly to the page of the issuing bank or a 3D secure page, asking for the transaction to be authorized and once the payment gateway gets the approval for the transaction, the bank then checks whether the customer has sufficient balance in the account to make the transaction a success or not and the payment gateway sends a message to the merchant and if the response is yes from the bank portal then the merchant seeks the transaction from the bank. The OP No. 1 specifically denied the allegations of the complainant and has stated that there was no deficiency in service on the part of the OP No. 1 and the complainant has filed false, frivolous complaint against them. By filing the written version the OP No. 1 praying for dismissal of this case.

      In support of the written version OP No. 1 filed Annexure A, B,C and D.

      XXXXXXXXX Notice was duly served upon the OP No. 2 but the OP No. 2 did not turned up before this Commission to contest the case and that’s why the case is preceding exparte against the OP No.2.

Having heard the Ld. Advocates of both the parties and perusal of the written version of the OP No. 1 and documents filed by the parties, the following points are to be considered by this Commission.

POINTS FOR CONSIDERARTION     

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of her Complaint?

                   Decision with Reasons

   All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

In order to prove the case the complainant has filed written deposition in the form of an affidavit. In the written deposition the complainant has specifically corroborated the contents of the statements so made in her written complaint. She is specifically stated on which day she tried to recharge her mobile number and a sum of Rs. 1498/- was deducted from her bank account but the initiative for recharge the mobile number was failed. In the written deposition, the complainant has also stated that, immediately  when the recharge was failed   she contacted with the OPs by not only raised complaint verbally but also sent several emails to them which were duly acknowledged by them but till today the OPs did not refund the said sum of Rs. 1498/- which was deducted from her bank account lying with the OP No. 1 bank.

Ld. Advocate of the complainant has filed written notes of argument and during argument he argued that, the complainant has been able to prove her case against the OPs who deliberately did not refund the sum of Rs. 1498/- to the complainant though it was deducted from the bank account of the complainant when she was trying to recharge her mobile number . Ld. Advocate of the complainant further argued that, the complainant raised a grievance against the OPs before the Assistant Director, CA & FBP, Siliguri Regional Office  and on the date of hearing i.e 26.11.2021, the OP No. 1 verbally assured the complainant that they have identified the amount and it is laying with “PAY YOU” and it will be refunded within 7 days but neither the OP No. 1 nor the OP No. 2 refunded the said sum of Rs. 1498/- to the complainant which is nothing but the gross deficiency in service as well as restrictive trade practice.

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To falsify the case of the complainant the OP No. 1 files written deposition in the form of an affidavit and has denied all the allegations of the complainant. In the written evidence the OP No. 1 has specifically corroborated the contents of the written version which they have already filed. In the written deposition the OP No 1 has stated that they are not liable to pay any compensation to the complainant as there was no deficiency in service on their part and the sum of Rs. 1498/- was successfully deducted from the account of the complainant when she placed an order. In the written evidence, the OP No. 1 has also stated that the sum of Rs. 1498/- is laying with the merchant for which the OP No. 2 is liable and not the OP No. 1.

Ld. Advocate of the OP No. 1 files written notes of argument and during hearing of argument he argued that, the liability if any, with respect to the recharge not being successful despite deduction of Rs. 1498/- from the bank account of the complainant is that of the OP No. 2 and not the OP No. 1 and the role of OP No. 1 is only that of a banker of the complainant and the OP No. 1 by no means can be made liable for the mobile number recharge not being successful.

Having heard the Ld. Advocate of both the sides and on perusal of the evidence of the parties as well as documents submitted by them it is admitted fact that, the complainant is an account holder of the OP No. 1 bank having her bank account number 4513109830. It is also admitted fact that on 25.01.2021 the complainant induced a net banking transaction of Rs. 1,498/- from her account vide transaction id number 6759331251611353088 in favour of airtel13/Kol/prepaid with PayU id 12140719861. It is also admitted fact that, a sum of Rs. 1,498/- was debited from the account of the complainant but the mobile number of the complainant was not recharged. It is not denied on the side of the OP No. 1 that the complainant sent  emails to them requesting for refunding the sum of Rs. 1,498/- for which  they replied . Moreover, from the record it reveals that, in the written version of the OP No. 1 as well as in the written notes of argument the OP No. 1 has stated that, they are not liable to pay the sum of Rs. 1,498/- as it was successfully debited from the account of the complainant and deposited with the Merchant .The OP No. 1 has also taken plea that they have successfully find out that the amount of Rs. 1,498/- was successfully debited from the complainant’s account and the amount was remitted to / settled in the merchants’ account on 25.01.2021.

Be it mentioned here that, despite receiving notice issued from this Commission the OP No. 2 did not appear before this Commission to contest this case. On the other hand, by filing W/V as well as written notes of argument the OP No. 1 has specifically stated that, on 25.01.2021 the complainant induced a net banking transaction of Rs. 1498/- from the account of the complainant vide transaction id no. 675933125161 1353088 in favour of airtel/13/kol/prepaid with PayU id 12140719861. But the OP Airtel did not challenge the said contention of the OP No. 1 to the effect that, the said sum of money was credited in favour of airtel/13/kol/prepaid with  PayU id 1214071986. From the said evidence of the OP No. 1 it is specifically proved that, the amount of Rs. 1498/- which was successfully debited from the account of the complainant was credited in favour of airtel but the mobile number of the complainant was not recharged and why after receiving the said sum of money the airtel did not recharge the mobile number of the complainant has not been explained by the airtel authority before this Commission and that act of the OP No. 2 is nothing but the deficiency in service as well as restrictive trade practice.

 Be it also mentioned here that, the OP Airtel Authority sent a message on 25.01.2021 to the complainant stating that, “Payment of Rs. 1498/- attempted via Airtel Thanks App through Net Banking has failed. Order id. 6759331192442093568. If money has been deducted, please wait for 2-7 days for a refund or contact your bank.” Despite sending reply to the complainant by the OP No. 2 Airtel Authority who asking her to wait for 2-7 days but till today neither they refund the sum of Rs. 1498/- in favour of the complainant nor they settled the claim of the complainant after negotiation with the OP No1.

Considering all, we are  of the view that, the OP  no. 1 has been able to prove its defense and the complainant has been able to prove the case to the effect that, due to deficiency in service on the part of the OP No. 2 Airtel the mobile number of the complainant was not recharged despite receiving Rs.1498/- which was directly debited from the bank account of the complainant.

Hence,

               It is therefore,

O R D E R E D

       The instant Consumer Case Being no. 60/2022 is hereby allowed on exparte against the OP no. 2 and dismissed against the OP No. 1.

       The OP No. 2 is directed to refund the sum of Rs. 1498/- to the complainant along with interest @ 7% per annum with effect from 25.01.2021 till making payment of the entire amount. The OP no. 2 is also directed to pay a sum of Rs. 30,000/- to the complainant for causing mental pain agony of the complainant as well as for deficiency in service on their part. The OP No. 2 is further directed to pay a sum of Rs. 10,000/- to the complainant towards cost of legal proceeding and OP no. 2 is also directed to pay 10,000/- in the consumer Legal Aid Account of this commission.

The OP No. 2 is directed to pay the awarded amount within 45 days from this day failing which they will have to pay interest @ 9 % per annum w.e.f from this day till making payment of the awarded amount.

Let a copy of this order be given to the parties free of cost.