Per Mrs.Usha S. Thakare, Hon’ble Presiding Judicial Member
Being aggrieved by the order and judgement passed by Learned District Forum, Mumbai Suburban dated 31/08/2012, original opponent/appellant has preferred this appeal.
2. The facts giving rise to this appeal are as under :-
Complainant/respondent-Mr.Sanjay Gaikwad had filed consumer complaint bearing No.341/2011 against the present appellant/org. opponent. Appellant/opponent is a company incorporated and registered under the Companies Act 1956, having its registered office at landmark Race Course Circle, Vadodara 390 007 and inter alia a Corporate Office at ICICI Bank Tower, Bandra-Kurla Complex, Bandra (East) at Mumbai. The appellant is a banking company and duly authorized by the Reserve Bank of India to carry out banking and related activities. The original complainant was holder of Credit Card bearing No.4477470080745004. The original complainant/respondent is utilizing said Credit Card from time to time. The complainant claims that transaction worth `62,066.26 reflected in the Credit Card statement dated 28/09/2009 which was not carried out by him. The complainant was shocked to see the statement. The complainant contacted the opponent/appellant’s Call Centre. The opponent/appellant assured that the matter shall be looked into and cause of the complainant shall be resolved, but the matter was unattended to. The complainant received another statement on 29/10/2009 wherein amount of `22,164.98 was shown as outstanding. The opponent had made reversals of transactions denominated in Great Britain Pound (GBP). Further, on perusal of statement dated 29/10/2009 it was disclosed that there is balance of GBP 1200 in favour of the complainant and complainant is entitled for refund of the same. The opponent is not credited said GBP 1200, on the contrary, complainant was unlawfully burdened with certain charges owing to exchange fluctuations or otherwise by the opponent. Requests of the complainant were not heeded. The complainant was constrained to write to opponent on 25/11/2009 to close the Credit Card account with immediate effect. However, despite of written instructions to close the account, the opponent chose to keep the account active and kept sending statements against his obligations to close the account. This is a clear violation and contravention of the fair practices code as adopted by the opponent. The incessant efforts were made to seek Redressal of complaint by continuous follow-up. Upon failing to elicit a response from the opponent, on 25/11/2009 the complainant wrote a mail to opponent for rectification of billing errors and to close the Credit Card account with immediate effect. But since, mail was conveniently ignored, again mail was written on 19/03/2010 by Ms.Sunita Smith on behalf of complainant regarding Credit Card billing discrepancy and status of action initiated by the opponent. However, mails though received by the opponent went unattended and unanswered. There was no feedback to mail on 01/04/2010 and 12/04/2010. The complainant had again received a statement in spite of intimating opponent for cancellation of Credit Card account. On 18/05/2010 Ms.Sunita Smith wrote mail to Mr.Santosh Nayak on behalf of complainant bringing to his notice in no uncertain terms the harassment and embarrassment being caused to the complainant. Further, mail was sent on 15/06/2010 on behalf of complainant. As a further follow-up, another subordinate of the complainant-Mr.K. Suvarna addressed a mail to Mr.Santosh Nayak on 16/06/2010. All the while opponent continued to keep Credit Card active and kept on charging complainant bank charges for the same despite having clearly stated to close the Credit Card account way back on 25/11/2009. The complainant further wrote a letter to the opponent on 06/01/2011, but it was not replied. Actions of the opponent are totally in contravention and gross non-adherence to the fair practices code as adopted by the opponent. On 01/03/2011 the complainant again informed the opponent about grievances in connection with the Credit Card transactions, but no use. Therefore, the complainant was constrained to file consumer complaint before the District Forum.
3. It is submitted that actions of the opponent and consistent avoidance to redress complaints had caused serious mental agony and harassment to the complainant. The complainant has a certain standing and honorable reputation in the business circles and society which has come under a serious and concerted assault from the officers and staff members of the opponent. Opponent is liable to rectify the billing errors of the complainant’s Credit Card statement and to make complete reversal in the accounting of Credit Card statement and also to pay compensation to the complainant. The complainant alleged that opponent has been grossly negligent and deficient in service and due to same, the complainant sustained wrongful loss, injury, damages, harassment, mental agony. Opponent is liable to pay compensation of `5 Lakhs to the complainant.
4. Opponent failed to appear before the District Forum in spite of service of notice. Hence, complaint was proceeded ex-parte against the opponent. The complainant had led evidence on affidavit before the Learned District Forum. After considering evidence and documents on record, District Forum was pleased to partly allow the complaint.
5. Learned District Forum held that present appellant/opponent committed deficiency in service in respect of transactions of Credit Card. It was directed that present appellant should not demand claim/recovery of transactions in respect of Credit Card bearing No.4477470080745004. It was further directed that opponent/appellant should pay `25,000/- to the complainant/respondent towards compensation and cost of complaint. Present appellant was directed to comply the order within eight days otherwise amount will carry interest @ 9% p.a.
6. Being dissatisfied by the order, org. opponent has preferred this appeal.
7. We have heard Mr.V. Mannadiar, Advocate for the appellant and Mr.Ishwar Shandilya, A.R. for the respondent.
8. Learned Counsel for the respondent supported the order and finding of Learned District Forum. However, Advocate for the appellant vehemently submitted that the order passed by Learned District Forum is illegal and incorrect. It is against the facts and merit of the case. Learned District Forum erred in passing the impugned order and ought not to have passed the same having regard to the facts and circumstances of the case. Learned District Forum failed to see that the complainant had not led any evidence as much as affidavit of evidence though in the name of complainant it is signed by Constituted Attorney holder of the complainant. Learned District Forum wrongly placed reliance on the affidavit of Power of Attorney holder and hence, Learned Counsel for the appellant harped upon to remand the case back to the District Forum.
9. Under these circumstances, following points arise for our determination and we record our findings for the reasons below :-
Points Finding
1. Whether it is a fit case to be remanded Yes
Back?
2. What order? As per final order.
REASONS
10. It is an admitted fact that complaint is filed by the complainant-Mr.Sanjay Gaikwad through Constituted Attorney-Mr.Ayyappan Pillai before the District Forum on 20/07/2011. Mr.Ayyappan Pillai, the Constituted Attorney of the complainant filed affidavit in support of complaint on 20/07/2011. Complainant did not lead evidence himself by filing affidavit. His Constituted Attorney Mr.Ayyappan Pillai only led the evidence by filing affidavit. It is not the case of Constituted Attorney holder Mr.Ayappan Pillai that the material facts mentioned in the complaint are within his exclusive knowledge. The facts are within exclusive knowledge of the complainant. The complainant should have filed his own affidavit to prove the allegations mentioned in the complaint. As such there is no evidence on record to substantiate the allegations mentioned in the complaint.
11. In the case of Krupa NidhiCollege of Pharmacy & Anr. V/s. Niloofar Shokraiah Zanjani, II(2009) CPJ 207 (NC), in which it is observed that, “Power of Attorney holder could not depose about material facts within knowledge of complainant. Evidence in affidavit being pure hearsay evidence, without independent corroboration, not admissible, cannot be relied upon. Lower Fora erred in allowing complaint relying upon evidence of power of attorney holder. Orders set aside in revision.”
12. In view of above ruling, we find considerable merit in the contention of Learned Counsel for the appellant. Therefore, in the interest of just, matter should be remanded back and opportunity should be given to both parties lead the evidence. As a result, we answer point No.1 in affirmative and pass the order accordingly.
-: ORDER :-
1. Appeal is allowed. The impugned order dated 31/08/2012 is hereby set aside and complaint No.341/2011 is remanded back to the District Forum for fresh hearing.
2. Both parties are directed to appear before the District Forum on 16/09/2013.
3. Appellant/opponent is directed to file written version on the same date before the District Forum.
4. After filing of the written version, District Forum shall give a reasonable opportunity to both parties to lead their respective evidence. Thereafter, on hearing both the parties, dispute be settled accordingly.
5. No order as to costs.
6. Copies of the order be furnished to the parties.
Pronounced
Dated 5th August 2013.
