FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant has been working as commission agent since long & a consumer agent received in accordance with act & rules of post office & post master, Head Post office generally paid such TDS to the agent as per work & if post master fails or neglect to pay such TDS which is treated as deficiency in service & agent is duly protected as per consumer protection act & rules and the petition whose dues to senior post master head office for TDS for Rs.32089/- for 2010-11 & Rs.11970/- for 2011-12 in total Rs.44059/- in which the petitioner sent a letter of her representation before the authority for refund of said TDS or payment deposited in a/c as paid earlier due to TDS &  several reminder & correspondence were made with the op authority but no result has yet done or paid those due of commission charges of TDS the reason best known to them.  Moreover the income tax authority closed the file & asked to the petitioner to take those money from Serampore Head post office. And the petitioner sent a letter on 5.4.2019 to ops but they failed to give any dues & thereafter on 23.6.2020 sent grievances to Assistant Director of Consumer Affairs at JoraGhat, Chinsurah for settlement who sent a letter to post master vide ref no.263 H(A)CA /CF/BP/Hooghly dated 26.11.20 but all attempts are in vain and the petitioner sometimes through her husband call on the office but on different pretext they avoided to refund the said TDS in total Rs.44059/- for the year 2010-11 & 2011-2012 respectively and OP’s all such work is full of deficiency of service negligence, fault, imperfection in adequacy in quality, nature & manner of performance of a contract or  otherwise in relation to the service and moreover by a letter from OP -1 & 2 dated 19.3.21 the petitioner duly submitting all papers for payment of TDS as earlier papers in their office are not traceable in which the petitioner on 01.4.21 submitted a letter alongwith all papers but intentionally failed to do in which op not only in deficiency of service for payment of such TDS of Rs.44059/- since due inspite of undertake to complete the all such deficiency & incomplete the work for payment of TDS dues but failed to do and the petitioner through her authorized advocate sent a letter dated 7.5.21 stating all the facts for payment of Rs.44059/- for the year 2010-11  &2011-12 within the 30 days by a registered with A/D & the said letter duly received on 16.6.21 but as per the direction of said letter, OP failed to compliance the same and the complainant also in view failed to compliance the matter in which finding no other alternative but to lodge a complaint before the court for redressal the matter and the complainant due to willy nilly tactics of the OP suffered untold mental agony, anxiety & harassment for not payment of TDS of total Rs.44059/- in which complainant become mentally broken down besides other financially loss of money and the acts & nature of the OP causes untold suffering to the complainant by way huge amount of compensation, cost as well as cost of suffering of mental agony & harassment for non-payment of TDS dues.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 44059/- for dues of TDS and to pay a sum of Rs.200000/- for unnecessary & willfully delay and to pay a sum of Rs.40000/- for litigation cost and to pay a sum of Rs.200000/- for mental agony & harassment.

Defense Case:-The opposite party Nos.1 & 2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the case of the op is that the complainant is a SAS the RD agent and is attached with Mahesh-II sub post office and vide a letter dated 5.4.2019 the complainant claimed that during the period from 2009 to 2011 TDS @10% was deducted from her agent commission bill by the post office but the same was not deposited at IT office for the financial year 2009-10 (Assessment year 2010-11) and FY 2010-11 (AY 201-12) and so she did not get the refund of the same from IT office.  It was also alleged by the complainant that only Rs.2510/- has been deposited at IT office for FY 2009-10 against her total TDS deduction of Rs.34659/- for that FY and that no deposit was made at IT office for the FY 2010-11 against her total deduction of Rs.11970/- for the said FY and thus the complainant requested for refund of Rs. 32,089/- for FY 2009-10 and Rs. 11,970/- for the FY 2010-11, total amounting to Rs. 44,051/-.

As this claim was made after about 10 years after the incident and the preservation period of the concerned record vide “Compendium of preservation and disposal of Records” of Postal Department which is 3 years, the related records have accordingly been disposed of and as such was not available to verify the matter.

Being disappointed the complainant approached the Asstt. Director of Consumer Affairs and Fair Business Practices, Hooghly on 3.8.2020 and the case was heard on 26.11.2020 in the presence of both sides. But as the complainant had not submitted any documents  in support of her claim amount, she was requested to produce the some with document wise calculation against her claim to the OP. and vide letter dated 07.01.2021 photocopies of some documents were submitted to the op on going the complainant filed on 3.8.20 to the Asstt. Director, Consumer Affairs & FBP Hooghly, it was found that the complainant had stated that it appears from IT office that the Sr. P.M. Serampore post office deposited only Rs.2570/- for this year 2010-11 and no other any deposit for the year 2011-12… Income tax office also closed the matter and told the complainant to take TDS refund from Sr. P.M Serampore post office.  But as no document was submitted regarding this remark of I.T office, the complainant was requested to submit this document in the office of this op for proper settlement of the claim.  The complainant was also requested to submit the original copies of TDS deduction certificates issued by the SPM Mahesh-II, So Xerox copies of which were  submitted by her.  But the complainant did not comply.  This letter was sent to the complainant by this OP on 19-8-21.

After receipt of the letter from the complainant, this op on 19-3-21 apart from sending the reply mentioned above to the complainant also wrote to the concerned IT office to kindly intimate the amount of TDS deposited by Sr. P.M Serampore HO in respect of the complainant.  Receiving no reply another letter was sent on 21.4.21.  And receiving no reply this op tried to collect the details from the IT portal and found that the PAN no. of the complainant was not mentioned and as such no information could be obtained. So, the case filed by the complainant be dismissed with costs.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party nos. 1 and 2 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 1 and 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party nos. 1 and 2 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Mahesh, Hooghly and the office place of op nos. 1 to 4 is also at Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1)(d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant has been working as commission agent under the ops.
2. It is also admitted fact that the complainant has been working as commission agent since long and as a consumer agent she used to receive commission in accordance with the act and rules of the post office.
3. There is no controversy over the issue that as per rules the post master of head post office generally used to pay such TDS.
4. There is no dispute over the issue that the senior post master of head post office deducted TDS of Rs. 32,089/- for the year 2010-11 and also deducted TDS of Rs. 11,970/- for the year 2011-12.
5. It is admitted fact that total TDS deducted by the post office authority who are the ops is Rs. 44,059/-.
6. It is also admitted fact that the complainant had submitted her representation for the refund of his TDS.
7. There is no controversy over the issue that the ops had not made any refund.
8. There is no dispute over the issue that the complainant thereafter sent a letter on 5.4.2019 to the ops but they failed to give any reply.
9. It is admitted fact that thereafter on 23.6.2020 the complainant had ventilated her grievances to the Assistant Director of Consumer Affairs, Joraghat, Chinsurah, Hooghly for settlement.
10. It is also admitted fact that Assistant Director thereafter had sent a letter to the ops asking them to appear for settlement of the dispute.
11. There is no controversy over the issue that the ops appeared before the Assistant Director but failed to produce any papers relating to deduction of TDS.
12. There is no dispute over the issue that thereafter the complainant had sent a letter to the ops through her authorized advocate by registered post with AD but the ops failed to fulfill the claim of the complainant.
13. It is admitted fact that thereafter complainant has instituted this case for refunding Rs. 44,059/- for non payment of TDS.    

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that the ops had deducted the amount of Rs. 44,059/- on the pretext of deduction of TDS but actually failed to produce any paper and document showing the deposit of said amount of Rs. 44,059/- before the Income Tax Authority but on the other hand the ops has taken the defence alibi that they asked the complainant for production of the documents but the complainant failed to produce the same and so the ops had no scope of settlement of the disputes and thus they have no negligence or deficiency of service.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the ops have not produced any cogent documents showing that they have deposited the amount of Rs. 44,059/- as TDS before the Income Tax Authority against PAN NO. of the complainant although it is their hard and fast duty. As the ops have failed to discharge this duty in the matter of issuing TDS certificate to the complainant and/ or has failed to produce any document showing deduction of TDS of Rs. 44059/-  and payment of same to the Income Tax Authority against PAN number of the complainant and so it is their duty to refund the amount of Rs. 44059/- to the complainant. Thus, the above noted issue and points of consideration nos. 4 and 5 which have been adopted in this case are decided in favour of the complainant.

In the result it is accordingly

ordered

that the complaint case being no. 89 of 2021 be and the same is allowed on contest but in part against op.

The ops are directed to refund the amount of Rs. 44059/- to the complainant along with compensation amount of Rs. 10,000/- and litigation cost of Rs. 5000/- within 45 days from the days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.