Date of filing : 18.5.2018

Judgment : Dt.9.1.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This complaint is filed by the Complainant namely Santosh Kumar Pathak under Section 12 read with Section 13 of the Consumer Protection Act alleging deficiency in service and unfair trade practice on the part of the opposite parties namely (1) Manager, EBix Cash World Money Ltd. and (2) M/s EBix Cash World Money Ltd.

            Case of the Complainant in short is that the opposite parties carry business of Foreign Exchange Management. Complainant was scheduled to go to Europe on 14.05.2017 and was in need of Foreign Currency of 2000 ‘Euro’. So, Complainant contacted OP prior to journey and on advice by OP, Complainant transferred an amount of Rs.1,42,600/- on 11.5.2017 from his bank Account No.0145101006823 through RTGS in the account of the OP in the name of Centrum Direct Ltd. which is now named as EBix Cash World Money Ltd., with the HDFC bank being Account No.12190330000033. OP assured to handover a Centrum Multi Currency Card containing 2000 Euros for the said tour. But, due to changed circumstances, the date to start the tour was fixed on 27.05.2017. So, Complainant approached to the OP on 24.05.2017 for 1000 Euros and OP thus issued a sale memo dt.24.5.2017 and Complainant was handed over a Centrum Multi Currency Card being No.4201 3405 0080 5006 totaling Rs.73,960/- with further assurance by the OP that the rest of Indian Money would be returned in the Complainant’s Bank Account with the Canara Bank. On 26.05.2017 when Complainant checked the balance in the said Centrum Multi Currency Card and finding Nil Balance, he approached OP but on being assured that the amount would be transferred very soon, Complainant proceeeded to Europe on 27.05.2017 but it was found that the said Multi Currency Card was not activated and Complainant could not utilize the said Card during the Europe Tour. Complainant returned on 13.6.2017. Soon after return, Complainant contacted the OP over phone, who assured that entire money of Rs.1,42,600/- would be returned to the Complainant’s Bank Account but the money was not returned and thus the present complaint has been filed praying for directing the OPs to pay Rs.1,42,600/- to the Complainant’s account, to pay compensation of Rs.3,00,000/- and litigation cost of Rs.15,000/-.

            Complainant has annexed with the complaint, copy of the bank account being No.0145101006823, copy of sale memo dt.24.05.2017, copy of e-mails, exchanged between the Complainant and the Axis Bank, complaint dt.23.7.2017 by the wife of the Complainant to OP and e-mail sent by the Complainant to Axis Bank Customer Care for transaction statement of Centrum Multi Currency Card.

            OPs have contested the case by filing written version denying and disputing the allegation contending inter alia that the Complainant is not a consumer. Complainant neve approached OP to issue 1000 Euros and tendered INR for purchase of the said Euros. The sale memo reveals name of Kiran Pathak. There is no document that amount of Rs.1,42,600/- was transferred to the account of the OP. So, the OPs are not liable to pay any money and thus OPs have prayed for dismissal of the case.

            During the course of trial, Complainant filed affidavit-in-chief, followed by filing of questionnaire by the OP and reply by the Complainant. But, OP did not file any affidavit-in-chief and thus date was fixed for argument. On repeated dates fixed for argument OP did not take any step. Thus, Ld. Advocate for Complainant was heard, who also filed the brief-notes of argument and cited the case law reported in 2017(3) CPR 13(NC) (M/S Good luck Developer’s VS Vignesh Shanbhag), in support of his argument that since OP has not adduced any evidence, the allegations made in the complaint is deemed to be admitted as correct.

            Ld. Advocate has also cited another case law reported in 2017(3) CPR 57 (NC) that Complainant is entitled to the compensation as claimed.

            So, the following points require to be determined :-

            (1) Whether there has been unfair trade practice and deficiency in service on the part of the opposite parties?

            (2) Whether the Complainant is entitled to the relief as prayed for?

            Decision with reasons

            Both the points are taken up together for a comprehensive discussions.

            At the very outset, it may be pertinent to point out that initially complaint was filed against the Manager of Centrum Direct Ltd. and the company M/s Centrum Direct Ltd. but on appearance, Ld. Advocate for the OP submitted by filing a certificate issued by Registrar of Companies, ROC-Mumbai that name of the Company has been changed from Centrum Direct Ltd. to Ebix Cash World Money Ltd. with effect from 03.10.2018. So, the said name of the OP was incorporated by an amendment sought for by the Complainant.

            In support of his claim that an amount of Rs.1,42,600/- was paid by the Complainant to OP’s account, Complainant has filed the copy of the account details of his bank Account wherefrom it appears that the said amount was transferred on 11.5.2017 from the Complainant’s joint account with his wife in Canara Bank being Account No.0145101006823 to the bank account of OP No.2/ Company through NEFT vide cheque No.988072. It is claimed by the Complainant that the said amount was paid because he needed 2000 Euro for his Europe Tour. Complainant has filed the copy of relevant entry in his Passport and the passport of his wife, showing their visit to Europe Tour on 27.05.2017. A copy of sales memo dt.24.05.2017 is filed which reveals that OP sold 1000EURO in exchange to INR 73,960/-. Said sale memo however has been issued in the name of Kiran Pathak alone. Admittedly Shri Kiran Pathak is the wife of the present Complainant and the joint bank account holder in Canara Bank referred to above.

            OPs though have not advanced any evidence but have filed their written version wherein they have not denied and disputed issuance of sale memo dated 24.05.2017. However, much emphasis is made by OPs that they did not have any relation with the present Complainant and the sale memo was issued in the name of Kiran Pathak only. But, the e-mails filed by the Complainant show that they were sent by the Complainant. Even the complaint lodged to OP was also made from the e-mail account of the present Complainant. Apart from this, as already discussed above that the amount of Rs.1,42,600/- was transferred to OP from the joint account of the Complainant and his wife and they both went to Europe as appears from the copy of passports. Merely because sale memo was issued only in the name of Complainant’s wife, the contention of OP that there was no transaction or relation with the Complainant cannot be accepted. The case will also not suffer due to non-joinder of said Kiran Pathak because Complainant has prayed for directing OPs to pay the amount of Rs.1,42,600/- in their joint account. Be it mentioned here that OPs have not filed any document to show that the Centrum Multi Currency Card was activated and the Complainant or his wife have used the amount of Rs.73.800/-.

            Opposite parties have not filed any document in order to substantiate that transfer of Rs.1,42,600/- shown in the joint account of Complainant and his wife, was actually not credited or received by the OP in its bank account. It is already highlighted above that OP has not adduced any evidence in support of the statements made in the written version. So, in the absence of any evidence by the OP, claim of the Complainant is well established that even though sale memo and Centrum Multi Currency Card was issued for 1000 EURO but the same was not activated and ultimately neither the said amount of Rs.73,960/- nor the balance amount towards Rs.1,42,600/- was returned by the OP. So, Complainant is entitled to the said amount of Rs.1,42,600/- from the OPs to be deposited in the joint account as prayed. Complainant is also entitled to the compensation towards harassment and mental agony suffered by him and his wife during tour. In our view in the given situation of this case, Rs.50,000/- would be justified as compensation.

            Hence

                                    Ordered

            CC/300/2018 is allowed on contest. Opposite parties are directed to pay an amount of Rs.1,42,600/- and compensation of Rs.50,000/- as well as litigation cost of Rs.10,000/- in the joint account of Complainant and his wife being Account No.0145101006823 with the Canara Bank, Chowringhee Branch, Kolkata, within two months from this date failing which the entire sum shall carry interest @ 9% p.a. till realization.