Date of filing: 05.07.2018 Date of disposal: 27.08.2018
Complainant: Rekha Laha, D/o. Sukamal Laha, resident of Memari, Old Monteswar Town,PO. & PS: Memari, District: Burdwan, PIN – 713 146.
- V E R S U S -
Opposite Party: 1. Sahara Q Shop Unique Products Range Limited, represented by its Chairman, having its office at Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow-226 024.
2. Sahara India, Memari Service Centre, represented by its Branch Manager, having its office at Chakdighi More, G. T. Road, PO & PS: Memari, District: Burdwan, PIN – 713 146 (WB).
3. Branch Manager, Memari Service Centre, Sahara India, having its office at Chakdighi More, G. T. Road, PO & PS: Memari, District: Burdwan, PIN – 713 146 (WB).
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, Sanyuk Banerjee.
Appeared for the Opposite Party No.1: None (ex parte)
Appeared for the Opposite Party No. 2 & 3: Ld. Advocate, Saurabh Kumar Mitra.
J U D G E M E N T
The petition of complaint is filed u/S. 12 of the C. P. Act by Rekha Laha alleging deficiency in service on the part of Ops with a direction that Ops have to pay an amount of Rs. 5, 81,877=00 along with interest @9% per annum (from 09.07.2015 till the date of) and Rs. 1, 00,000=00 as compensation for mental pain, agony and harassment and also to pay Rs. 10,000=00 towards cost of the case.
Case of the complainant in brief is that the complainant invested her money in the OP-1 company through the OP-2 service centre of OP-1 Company and OP-3, the Branch Manager of the OP-2.
The complainant compelled to file the present claim application that after the death of her only son, the family of the complainant faced economic crisis and therefore on 11.12.2013 the complainant made application to the Branch Manager of OP-2 centre for repaying back her invested amounts as described in schedule ‘A’ in the complaint. After that the Ops made full payments in respect of schedule ‘B”’ schedule and made part payment in ‘C ’schedule and the last payment made on 09.07.2015.
Again on 30.09.2015 the complainant requested the Ops to pay her the rest invested amount which is mentioned in ‘A’ schedule of her complaint.
The cause of action of this case arose on and from 11.12.2013 with the withdrawal of ‘A’ schedule investment of the complainant and the same has again arisen on 09.07.2015 as the last date of payment as made by the Ops.
After filing the present claim application, the complainant sent proper notice to the Ops and all the Ops have received the summon but only OP-2&3 have appeared and contested the case by filing their written version. None appears on behalf of the OP-1. Hence, OP-1 is declared as ex parte.
Both the Ops have contested the present case under Section 12 of the C.P. Act by filing their written version and denied the allegation as alleged by the complainant. According to them the complainant has no bonafide cause to file the instant complaint case and also denied all the allegations by saying that all are false, frivolous, baseless and liable to be rejected with exemplary costs and also the complainant is barred by principles of estoppels, waiver and acquiescence and the present complaint should be dismissed with cost.
The specific case of the Ops are that they have further stated that the present petitioners cannot be considered as consumer under Section 2 (1) (d) of C. P. Act, 1986 and as such on this part they have no deficiency or negligence under Section 2 (1) (g) of C. P. Act, 1986.
Moreover according to Ops, the complainant has invested the amount for making profit so this complaint is not maintainable before this ld. Court. They have also stated that on the basis of proposal from the part of the complainant for issuance of ‘Q shop plan H policy’ Ops issued 52 certificates in favour of the complainant subject to terms and conditions.
Accordingly as per scheme the complainant is not entitled to withdraw any amount before redemption and the complainant also knowing fully well this matter. Besides, this according to Ops the original certificates of the plan along with terms and condition are in the custody of the complainant.
Further both the Ops also stated that there is no deficiency or unfair trade practice on the part of the Ops whereas the complainant with a motive not filed the original terms and conditions which was supplied at the time of issuance of certificates. Accordingly the present complaint should be dismissed with cost by treating the same as vexatious complaint.
On considering the claim application along with written version filed by the OP-2&3, the following issues settled by the present Forum.
Points for consideration :-
- Whether this claim application at all maintainable in its present form?
- Whether complainant entitled to get any award as prayed for?
Decision with reasons:-
We have gone through the records very carefully. Perused the documents which filed by the complainant by way of ‘firisti’ i.e. Sahara Q Shop Unique products Range Ltd., Service Centre Memari, Burdwan Sector, certificates Xerox copies Annexure ‘A’ /1 to Annexure ‘A’ /7 and Sahara Q Shop Unique products Range Ltd., Notice Xerox and Bank statements Xerox copies Annexure ‘B’ /1 to annexure ‘B’ /3.
Issue No. 1:-
The complainant has filed the present claim application against the Ops on the allegation that she purchased 52 certificates which she mentioned in ‘A’ schedule from the Ops as consideration amount on different dates and to prove the same the complainant is able to produce the documents i.e. the Xerox copy of certificates. As the complainant paid money to the Ops to purchase the certificates as mentioned, it could be easily said that the complainant has became the consumer and the Ops on receiving such amount from the complainant have became the service provider of the complainant. So from the materials on records it is clear that the complainant is a consumer as per provision of Section 2 (1) (d) of the C. P. Act.
Besides that it also appears that the complainant used to resides at Memari, Old Monteswar Town, PO. & PS: Memari, Dist: Burdwan, PIN – 714 146 (WB) and the office of both the Ops is at Chakdighi More, G. T. Road, PO. & PS: Memari, dist: Burdwan, PIN – 713 146 (WB) i.e. also within the territorial jurisdiction of this present Forum. So under such circumstances it is clear that complainant is able to prove that the present application is maintainable according to law.
Accordingly this issue disposed of.
Issue No. 2:-
Now the question arises whether the complainant is at all entitled to get any award as prayed for and to consider this issue it appears that the complainant purchased 52 certificates for consideration amount in A schedule. Out of which the Ops have made full payments in respect of some certificates which she described in the B schedule and Ops have also made pat payments which she mentioned in her C schedule and to prove the same the complainant is able to produce the documents i.e. Xerox copies of all the certificates (A schedule) and the Xerox copies of part payment certificates on C schedule. The allegation of the complainant is that due to death of her only son her family suffers a lot and for buying all the certificates.
Now it appears from the record that the complainant has purchased total 52 certificates from Ops and out of which she has already received the full payment against 22 certificate nos. 562005330794, 562005330795, 562005330799, 562005330804, 562005330805, 562015694148 etc. which are mentioned in the scheduled ‘B’ and also received part payment against the certificates no. 562015697063, amount Rs. 32,650=00, no. 562015694648, amount Rs. 34,200=00 and no. 562015697673, amount Rs. 34,200=00, i.e. total Rs. 1, 00,450=00
But according to terms and conditions of the certificate which was issued by the OP that the complainant is not entitled to get any amount as per payer before maturity period does not/cannot arise at all and at the same time it also appears that if the terms and condition does not permit the complainant to receive either full amount or part amount against the certificates then the question arises that how the Ops paid the full amount as well as part amount as per her prayer? So from such conduct of Ops it is clear that they have intentionally not produced the said terms and conditions before this Forum when the complainant also failed to produce the same.
So obviously it is clear that when the complainant already received full amount as well as pat amount against some certificate from the Ops, so now also she is entitled to receive the further amount as per certificates from the Ops and according to written version of the Ops that the complainant cannot be able to receive the amount before maturity it is nothing but vague allegation. Rather it is clear that Ops have admitted the prayer of the complainant by part payment as well full payment in respect of some certificates, though in the written version they have denied regarding payment in respect of some certificates but the documents as produced by the complainant shows part payments as well full payments by the Ops.
Therefore, complainant is able to prove her own case and entitled to get further amount as per her prayer from the Ops.
Accordingly this issue disposed of.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 114/2016 be and the same is allowed ex parte against the OP-1 and allowed on contest against the OP-2&3 with a direction to all the Ops to pay Rs. 5,81,877=00 either jointly or severally to the complainant along with 4% interest per annum on the invested amount from 05.07.2016 (date of filing of this complaint) within 45 days from the date of passing of this order, in default, the invested amount will carry penal interest @8% per annum till its realization and all the Ops are further directed to pay either jointly or severally to the complainant Rs. 20,000=00 as compensation for mental pain, agony and harassment and Rs. 5,000=00 as litigation cost within 45 days from the date of passing of this order, failing which the complainant is at liberty to put the entire award in execution as per provisions of 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, Burdwan
Member
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
