DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __48_ _ OF ___2018
DATE OF FILING : 24.4.2018 DATE OF PASSING JUDGEMENT: 13.12.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Abhijit Ghosh, son of Sri Bimal Kumar Ghosh of Jadav Sarkar Road, Baikunthapur, P.S Sonarpur, Rajpur, South 24-Parganas, Kolkata – 149.
O.P/O.Ps : M/s Madhabi Service Station, represented by its Proprietor/Owner of 211, N.S.C Bose Road, Rathtala, P.S Sonarpur, Kolkata – 149.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Non-refund of the consideration price paid to the O.P by the complainant in excess of what is due to the O.P has galvanized the complainant to fie the instant case under section 12 , C.P Act, 1986 ,alleging deficiency in service on the part of he O.P .
The facts leading to the filing of the instant case may be epitomized as follows:
October, 2017. This day the complainant filled up his car with diesel worth Rs.1889.94 from the Petrol Pump of the O.P and also made online payment for the price of diesel. To make on-line payment , he delivered his debit card and PIN to the service man of the pump. The service man realized Rs.1,89,000/- by swiping the debit card instead of Rs. 1889.94 due to inadvertence or bonafide mistake. When the mistake was reported to the O.P by the complainant, the O.P made then and then the said sale “Void Sale” and assured the complainant that the money would be returned to his account within a few days. Thereafter, the complainant also made on-line payment of Rs.1890/- to the O.P that day for the diesel purchased by him. But, the sum of Rs.1,89,000/- has not been returned to the account of the complainant as yet from the account of the O.P maintained with City Bank. Complainant waited and waited till 14.2.2018 ,but to no effect. Therefore, he has filed the instant case ,praying for passing an order directing the O.P to return the sum of Rs.1,89,000/- and to pay compensation etc. to him. Hence, the case.
The O.P is contesting the case by filing written statement, wherein it is contended that the case is bad for non-joinder of necessary parties. The positive case of the O.P as made out in the written statement is that the complainant never made over debit card and PIN to the service man for on-line payment of the price of Diesel. It is further averred in the written statement that the Citi Bank is not the banker of the O.P and that the said Bank is the banker of IOC (Indian Oil Corporation) . The O.P’s Bank is State Bank of India. IOC and S.B.I are necessary parties to this case and in absence of them the case cannot be effectively adjudicated upon. It is further also submitted by the O.P in the written statement that the receipt is issued from the swipe machine and money is debited automatically through the swipe machine of IOC. O.P has no control over the said machine. The sum of Rs.1,89,000/- has not been credited to the account of the O.P and therefore, the O.P is not liable for making payment of the said money to the complainant. There is no deficiency in service on the part of the O.P and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR DETERMINATION
- Is the case barred for non-joinder of necessary parties?
- Is there any deficiency in service on the part of the O.Ps for not returning the excess price of diesel purchased by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed on behalf of both the parties. BNAs filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 :
It has been argued on behalf of the O.P that the State Bank of India ,which is the banker of the complainant, and the Citi Bank should have been made parties to this case, inasmuch as the case cannot be effectively adjudicated upon in their absence.
We know very well the object for which Consumer Protection Act was enacted by the Legislature. Its object, inter alia, is to ensure speedy justice to the consumers. The question of non-joinder of parties once fell into consideration of the Hon’ble Apex Court in Sabita Garg Vs. National Heart Institute, reported in (2004) 8 SCC 56, wherein it has been observed that the consumer case cannot be dismissed and it can be dismissed only when the complainant fails to substantiate his case against the O.P. But, the case can never be dismissed on the ground of non-joinder of parties. Having kept in mind the ratio propounded by the Hon’ble Apex Court in the aforesaid case, we do hold that the instant case is quite maintainable against the O.P and that the case will never fail on the ground of non-joinder of parties as alleged by the O.P.
The Point no.1 is thus primarily answered in favour of the complainant.
Point no.2 & 3 :
In the instant case, the complainant has stated in his evidence that he purchased diesel on 29.10.2017 for Rs.1889.94 to his car from the petrol pump of the O.P and that the service man of the petrol pump realized Rs.1,89,000/- due to bonafide mistake from him by swiping his debit card. It further transpires in his evidence that the said transaction was made a “Void Sale” by the O.P then and then and that the complainant also paid Rs.1890/- to the O.P that day for the price of the petrol . To prove his case, the complainant has filed the receipt issued by the Swipe machine and it shows that the complainant purchased diesel of Rs.1889.94 on 29.10.2017 at about 16.45 hours from Madhabi Service Station i.e the petrol pump of the O.P. Here is another such receipt issued by the Swipe Machine of the O.P ,filed and it shows that Rs.1,89,000/- has been paid to Madhabi Service Station on 29.10.2017. The complainant has also filed another slip issued from said Swipe machine and it shows that the sale of Rs.1,89,000/- has been made “void sale”on 29.10.2017. The complainant has also filed another receipt dated 29.10.2017 ,wherefrom it is seen that the complainant has paid Rs.1890.00 to the petrol pump of the O.P. All the 3 receipts – 2 sale receipts and one void sale receipt are issued by the swipe machine, kept in the petrol pump of the O.P and all these receipts contain the name of Citi Bank on their head. The complainant has also filed photocopy of the relevant portion of his passbook maintained with the United Bank of India and from the entry of this passbook, it is found that a sum of Rs.1,89,000.40 has been transferred from the account of the complainant to Madhabi Service Station i.e the petrol pump of the O.P.
Let us see now what the version of the O.P is in this regard. The O.P does not deny that Rs.1,89,000.40 has been paid by the complainant for the purpose of price of the diesel taken by him on 29.10.2017. The O.P does not deny that the said sale has been rendered as “Void Sale” by him on the complaint of the complainant on that very day. It is not also denied by the O.P that the complainant made a further payment of Rs.1890/- as the price of the diesel on that day to him. What is stated by the O.P in his written statement is that the Citi Bank is not his banker and it is the banker of Indian Oil Corporation (IOC) and that the money i.e Rs.1,89,000/-has not been deposited in his account, but in the account of IOC. It is averred by him in his written statement that he is merely an agent of IOC and that all sale price of diesel are deposited in the account of IOC maintained with Citi Bank,in so far as his petrol pump is concerned. This version of the O.P does not get any support in the evidence adduced by the O.P. In his evidence we come to notice a-180-degree departure from what is stated in his written statement. In his evidence he does not say for a moment that all the money of sale relating to diesel goes to the account of IOC ,maintained with the Citi Bank. The O.P is found quite silent in his evidence in this regard. Why this departure? Did they indulge in misleading the Forum by saying that all sale price of diesel goes to the account of IOC? If this was so, if this was the fact that sale price of diesel goes to the account of IOC, the O.P could have filed the Memorandum of Agreement before the Forum which has been reached between him and the IOC in that regard. No such MOA has been filed by the O.P before the Forum.
In absence of such MOA in support of his version as given in the written statement filed by the O.P, we feel constrained to say that the O.P has made an attempt to give a bluff to the Forum for the purpose of misleading it. We do never believe that the sale price of diesel goes to the account of IOC. There are several thousands of petrol pump in our country and we have never seen that the sale price of all petrol pumps is transferred to the account of IOC. On the other hand, it stands proved by the evidence of the complainant and also receipts issued by the swipe machine of the O.P and also the photocopy of the pass book of the complainant that a sum of Rs.1,89,000.40 has been transferred from the account of the complainant to the account of the O.P ,which is maintained in the Citi Bank. The O.P has been submitting ad nauseam that he does not have any account in the Citi Bank. Such submission of the O.P appears to be a downright falsehood. We do hold that the swipe machine kept in the petrol pump of the O.P is provided by the Citi Bank and the Citi Bank maintains the coffer of the O.P and the sale price of diesel or petrol whatsoever it be, is deposited in that coffer of the O.P maintained with the Citi Bank.
Now , it is clearly established by the evidence on record that the complainant purchased diesel from the petrol pump of the O.P on 29.10.2017 and that he paid a sum of Rs.1,89,000.40 instead of Rs.1889.94, though it was done due to bonafide mistake. We do not want to poke our nose into the question about who committed the wrong or whether the wrong was done deliberately or negligently. But the fact remains that a sum of Rs.1,89,000.40 was transferred from the account of the complainant to the account of the O.P. The petrol pump is maintained by the O.P. The swipe machine is installed there by the O.P. It is bounden duty of the O.P to return the price to the customer if any excess amount ,than what is due to him is taken from the customer. Non refund of that excess amount to the customer by the O.P is a fault and imperfection in discharge of his obligation and, therefore, it is certainly an instance of deficiency in service on the part of the O.P. It has been argued on behalf of the O.P that two banks i.e SBI and Citi Bank with which the accounts of the O.P and the complainant are maintained, should have been made parties to this case and that the complainant should have approached the Citi Bank for settlement of the dispute. We do say with much more emphasis that a customer need not move from pillar to post in order to get refund of the excess money paid by him to the shop keeper. Citi Bank is the banker of the O.P, it is just like the coffer of the O.P. So, the O.P is the best person to see why his banker has not paid the money to the account of the complainant. The complainant need not approach the Citi Bank. It is the O.P alone ,who is liable to make refund of Rs.1,89,000.40 to the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P with a cost of Rs.10,000/-.
The O.P is directed to refund Rs.1,89,000/- to the complainant within a month of this order, failing which, the O.P will have to pay a sum of Rs.50,000/- as compensation to the complainant in addition to payment of Rs.1,89,000/- with interest @10% p.a from the date of payment i.e 29.10.2017 till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
