Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that Shine.com called the complainant from phone no.9568954171 and another phone no.8178474787 by a person namely Kunal, from Shaine Job Consultancy and advice complainant to avail paid services which will increase immense potentiality to get a suitable job and further promise the petitioner that if he avail the same then his resume will be send to 1000 companies and he will get plenty of relevant job interview calls within 15 days. Complainant as job seeker believed the same and availed for the paid service from online job portal shine.com a job consultancy firm, on 27.10.2020 with a belief that he will get a job very soon. The above named online job portal shine.com demanded Rs.3657/- from the petitioner as registration fees to avail their paid services and the petitioner paid the same on 27.10.2020. The above named online job portal shine.com demanded Rs.5192/- for education verification and the petitioner paid the same on 27.10.2020. The above named online job portal shine.com demanded Rs.4837/- for employment the petitioner paid the same on 27.10.2020. The above named online job portal shine.com demanded Rs.8259/- for Career assessment test with expert counseling and the petitioner paid the same on 27.10.2020. The above named online job portal shine.com in total charged Rs.21945/- from the petitioner on 27.10.2020 to avail the opportunity of their paid services by the petitioner. Even after elapsing one month that is from the date of 27.10.2020 of availing paid services from online job portal “shine.com” no interview call was received by the petitioner and then suddenly on 25.11.2020 one person from shine.com called the complainant and apologized for their failure to provide the service to the complainant and told for that reason they want to refund the above said total amount Rs.21945/- but further said that to get refund the petitioner has to submit online complain form available at their website to lodge a complaint by paying Rs.10/- in on line mode. For paying Rs.10/- in online mode through “bill desk” to the shine.com the petitioner had to entered his debit card number and according to the system he received an OTP but after entering the OTP instead of deducting Rs.10/- from the SBI savings bank A/c of the petitioner Rs.22000/- had been debited or deducted on 27.11.2020 vide transaction ID INB IMPS/P2A/033211886659/XXXXXX095PYTM e CHQ:MOADOTMJG4. The above named online job portal shine.com in total taken Rs.21945/- +22000 = 43945/- which is utterly an example of unfair trade practice, fraud and deviation of service. The above said all the bank transactions were held by the SBI savings Bank A/c no.39146662223 of Chandannagar branch. The complainant lodged a general diary at Chandannagore P.S. by informing the above said matter vide G.D. Entry no. 1364/2020 dt. 28.11.2020 but the police took no action in view of the above said general /diary. Then the complainant further sent a written complaint by post to the Commissioner of Chandannagore Police and Inspector In-Charge of Chandannagore P.S. dt. 18.1.2021 but no action yet taken.
Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 43,945/- with interest and to pay a sum of Rs. 5,00,000/- for negligent service and unfair trade practice and to pay a sum of Rs. 3,00,000/- for loss of the precious time and to pay a sum of Rs. 2,00,000/- for negligent and fraudulent service and to pay a sum of Rs. 50,000/- as litigation cost.
Defense Case:- This case is running ex parte against the opposite party vide order no. 6 dt. 21.12.2021. After that op had filed one ex parte set aside petition which was rejected vide order no. 22 dt. 14.12.2022 but the op by filing evidence on affidavit denying inter-alia all the material allegation as leveled against them and prayed for dismissal of this case.
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:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has 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 inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability 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. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandernagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. 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 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 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 on close examination of the pleadings of the complainant 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) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. 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 complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have not filed any W/V but filed evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case. But fact remains that the complainant has failed to produce sufficient evidence to show that he has suffered mental loss and agony for which he has the ground of claiming compensation. So this District Commission is not at all inclined to pass any order in respect of granting compensation.
All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case but in part which has been prayed by this District Commission.
In the result it is accordingly
ordered
that the complaint case being no. 78 of 2021 be and the same is allowed ex parte but in part.
Opposite party nos. 1 and 2 are directed to pay the amount of Rs.49945/-alongwith interest at the rate of 9% per annum within 60 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 party nos. 1 and 2 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.
