Date of filing: 06.09.2017 Date of disposal: 28.03.2019
Complainant: Rana Mazumder, S/o. Late Badal Kumar Mazumder, resident of 10/09 Deshbandhu Nagar, P.O. A-Zone, P.S. Arabinda, Durgapur, District: Burdwan (West), PIN – 713 204.
Opposite Party: Mullick Infocomm, represented by its Proprietor, having its office at Benachity, Durgapur, PO: Benachity, PS: Arabinda (Durgapur), District: Burdwan (West), PIN – 713 213.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate,Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Pappu Gupta.
J U D G E M E N T
Complainant - Rana Mukherjee lodged the present petition under Section 12 of the C. P. Act, 1986 against Mallick Infocom at Benachity, Durgapur within Police Station Aurobinda O(Durgapur), Dist: Burdwan for sum of Rs. 11,514=00 which received by Ops at the time of purchasing mobile phone along with service charges as well as other reliefs.
The fact of the present petition is that on 21.12.2016 the complainant purchased a mobile phone from the OP, manufactured by VIVO for a consideration amount of Rs. 11,400=00, IMEI No. 86359903476069 but at the time of purchasing the said mobile phone as the complainant was not possession any cash amount so he agreed to pay the consideration amount of mobile phone to the OP through ATM Card to the representative of OP for swiping for payment of consideration amount and the OP also after swiping the ATM for consideration amount of mobile phone issued one tax invoice of Rs. 11,400=00 bearing No. 4330 and also issued two money receipts of swipe bearing No. 100000011037183 and 100000011036746 of Rs. 11,514=00 each and after going through the same complainant came to know that the OP swiped Rs. 11,514=00 for two times when the actual consideration amount of the said mobile phone was Rs. 11,400=00 and further came to know on enquiry that OP received Rs. 114=00 as service charge.
Thereafter the complainant requested the OP for refund of extra amount which was received as cost price of said phone along with service charge of Rs. 114=00 but the OP was not agreed to accept the proposal of the complainant inspite of repeated request and further misbehaved with him.
The complainant further alleged that several times verbally as well as by sending emails he requested the OP for solving the problem but still the OP never refund Rs. 11,514=00 and Rs. 114=00 to the complainant and also not take any step to solve the problem which was created in between themselves at the time of purchasing mobile phone. So the complainant finding no other alternative went to the CA & FBP, Durgapur R.O. where also OP admitted their fault but did not take any step to solve the problem and for that the complainant compelled to lodged the present petition against the OP as the illegal action of the OP amounts to deficiency in service and unfair trade practice and as the complainant is a bonafide consumer, so the Ops are liable to compensate the complainant.
The cause of action arose on 21.12.2016 when the Ops received the consideration amount for two times from the complainant at the time of purchasing mobile phone.
OP appeared and contested the case by filing written objection.
The case of the OP is that the claim application is not at all maintainable under law and facts and the complainant does not have any cause of action to file the present application and accordingly it is not maintainable and the complainant is not entitled to get any relief as prayed for.
The specific defence case is that the complainant purchased a mobile phone on 21.12.2016 from then, manufactured by VIVO for a consideration amount of Rs. 11,400=00 and he paid the purchase amount through ATM Card as at that time he was not possession any cash amount and at the same time OP denied the allegation that the OP had swiped the ATM card of the complainant by stating that the complainant himself swiped the card as he was not willing to share the password/PIN Code with others and during that period due to timer out the card was swiped for two time and the amount of cost price of the said phone was credited two times from the accounts of the complainant.
The OP also admitted through written objection that the price amount of the said phone received by M Swipe Technologist Private Limited and they requested through letter to the said company for returning the amount which has been wrongfully credited by their company and the said letter was received by the M Swipe Technologist Private Limited on 11.05.2017.
The OP further stated that the fault was totally technical and unintentional and they are agreed to cooperate to the complainant for returned back his amount and actually there is no negligence as well as deficiency in service and unfair trade practice done from the part of the OP and accordingly the complainant is not entitled to get any relief as prayed for against the OP.
OP alleged that M Swipe Technologist Private Limited received the said amount as price of the said phone but the complainant did not take any step to make M Swipe Technologist Private Limited as necessary party. So the present claim application is also barred by non-joinder of parties and accordingly the present application is liable for dismiss with cost of Rs. 10,000=00.
On perusing the claim application along with written objection and also on hearing both parties, the following issues have been considered and framed by the present Forum Court.
Issue No. 1: whether the claim application is maintainable according to law?
Issue No. 2: Whether the claimant is entitled to get any relief as prayed for?
Regarding issue No. 1 it is the duty of the complainant to prove that he is a bonafide consumer as according to W.B. Consumer protection Act, a consumer can only entitled to file this petition under Section 12 of the C. P. Act.
Here in the instant case the complainant is able to prove that he is a bonafide consumer by producing purchase receipt, i.e. he purchased a mobile phone from OP against money receipt issued by the OP which they have also admitted.
So from the documents as admitted by the OP shows that the complainant is a bonafide consumer of OP.
Besides that the relief for which the complainant filed the present application i.e. for Rs. 11,514=00 as price of the phone along with Rs. 114=00 which received by the OP as service charges, further Rs. 70,000=00 as mental pain and agony and also Rs. 15,000=00 as litigation cost, which are within pecuniary jurisdiction of this Forum Court.
Furthermore the complainant residing at 10/09 Deshbandhu Nagar within district Burdwan and purchased the mobile from Ops, i.e., the company represented by Proprietor, having its office at Benachity Durgapur within P.S. Aurobinda, Durgapur within district Burdwan.
So the residential address of both shows that the incident happened within territorial jurisdiction of the preset Forum Court and the Op also has raised no objection regarding territorial jurisdiction as well as pecuniary jurisdiction. Accordingly without any hesitation it is clear that the present claim application well maintainable in respect of all.
Thus this issue disposed off.
Regarding issue No. 2, i.e., whether the complainant is entitled to get any relief as prayed for, as it appears from the record that the complainant has filed the present claim application on the ground that he purchased a mobile phone from OP on 21.12.2016 at a price of Rs. 11,400=00 and further he paid the price of said mobile phone by using ATM Card as at that time he has no cash amount with him.
Further case is that the complainant handed over his ATM Card to OP for using and at that time the OP swiped the ATM Card for two times and for that Rs. 11,514=00 was deducted from his account for two times as price of the said mobile phone and OP also admitted the same by issuing two money receipt of M swipe bearing No. 100000011037183 and 100000011036746 of Rs. 11,514=00 each.
According to evidence of affidavit, the complainant stated that OP admitted before him that due to bonafide mistake the ATM Card swiped for two times and for that Rs. 11,514=00 was deducted from the account of complainant for twice but they are ready to refund the same and further admitted that the price of mobile phone is Rs. 11,400=00 but they have taken Rs. 114=00 as service charge from the complainant at the time of issuing Tax Invoice.
Accordingly it is clear that there is no dispute regarding the claim application against the OP but only disputes is that according to complainant Ops never returned the excess amount which have been deducted from the account of the complainant as price of mobile phone and further amount as service charge and at the same time OP also stated at the time of argument that they are ready and willing to refund the amount to the complainant as per his claim.
Now dispute arises for Rs. 114=00 which received by the OP from the complainant as service charge, as the OP issued tax invoice to the complainant which shows the price of the mobile phone is Rs. 11,400=00 whereas two receipt issued from M swipe shows that Rs. 11,514=00 was deducted from the accounts of the complainant for two times as price of mobile phone.
So it is clear that the complainant is entitled to get back Rs. 11,514=00 which has taken by the OP for two times as cost of mobile phone (OP also admitted the same and ready to pay as per order).
It further appears that according to complainant OP has taken extra amount of Rs. 114=00 as price of mobile phone but issued tax invoice of Rs. 11,400=00 and on query he stated that he received Rs. 114=00 as service charges but it is not properly mentioned in the tax invoice and OP also never stated before the complainant prior to issue tax invoice that they are entitled to receive service charges from the complainant at the time of purchasing.
Further it appears that according to OP when they are entitled to receive service charges from the complainant for purchasing mobile phone then as to why they issued tax invoice of Rs. 11,400=00 only in favour of the complainant. So the conduct of the OP clearly shows that they have not taken Rs. 114=00 from the complainant properly as price of mobile phone and at the same time some illegal activities appeared on the part of OP which is not proper and justified and the present Forum Court is not in a position to accept the same, hence the complainant is also entitled to get back Rs. 114=00 from OP including the other reliefs.
Thus this issue is disposed of in favour of the complainant.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 183/2017 be and the same is allowed on contest against the O.P. with cost directing the O.P. to refund Rs. 11,628=00 (Rs. 11,514=00 +Rs. 114=00) to the complainant along with 8% interest per annum from 21.12.2016 till its realization and the O.P. is also directed to pay Rs. 2,000=00 as compensation for mental pain, agony and harassment and Rs. 1,000=00 as litigation cost to the complainant within 45 days from the date of order without fail, failing which the complainant is hereby permitted to put order in execution according to law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Purba Bardhaman
Member
DCDRF, Purba Bardhaman
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Purba Bardhaman DCDRF, Purba Bardhaman
