Order-6.
Date-08/06/2016.
This is an application u/s.12 of the C.P. Act, 1986.
In brief the case of the complainant is that his son passed BDS from Bangalore in the year 2013 and complainant intended to admit his son in MDS and for which his son appeared in MDS admission Test but complainant was in anxiety at that point of time and being informed about admission in Kolkata as per advertisement of Ananda Bazar Patrika dated 29-03-2015 complainant contacted over phone on 14-05-2015 with OP regarding admission to MDS when OP confirmed over phone that there are available five seats in Kolkata against payment of capitation fee so as early as possible Rs.8 lakhs should be deposited to reserve the seat for his son and relying about their assurance as per direction of the OP complainant deposited Rs.30,000/- on 19-05-2015 in the A/c. No.018705500418 of the OP at ICICI Bank with view to book seat for his son and after that OP demanded balance amount of Rs.7,70,000/- and only considering reserve seat in MDS for his son they deposited Rs.7,70,000/- through RTGs in the account of the OP i.e. Rs.4,70,000/- on 20-05-2015 and Rs.3,00,000/- on 21-05-2015 and, thereafter, as per instruction of the OP complainant along with her husband and son met with OP when on 22-05-2015 OP disclosed that there is no vacancy at Kolkata but vacancy is at Haldia and Midnapore but complainant did not agree when OP gave liberty to the complainant to cancel the deal and get refund of the deposited amount but even then visited Haldia Campus but being disheartened complainant requested OP for refund of entire amount when OP straight way refused to pay at a time but expressed that same shall be paid by instalments and OP issued a cheque of Rs.3 lakhs being cheque No.011061 dated 01-06-2015 drawn on ICICI Bank, Chowringhee Branch in the name of the complainant and also promised to pay the rest amount of Rs.5 lakhs within 15 days so, complainant presented that cheque for encashment but same is dishonoured due to insufficient fund when complainant prayed for refund of entire Rs.8 lakhs when OP issued two cheques being Nos.262163 and 262164 dated 17-06-2015 and 24-06-2015 to the complainant for Rs.2 lakhs but same are also dishonoured when submitted for encashment due to insufficient fund when complainant was highly shocked and met the OP who then only paid Rs.49,000/- by Bank transfer in the name of the complainant’s husband but after that as yet balance amount has not been paid.
In the mean time Criminal Case under N.I. Act is filed against them at Jalpaiguri CJM Court and same is pending for disposal.
Fact remains even after receipt of Rs.8 lakhs OP has not provided any service as per their promise and not only that they adopted unfair trade practice in this regard and also harassed both mentally and physically and complainant suffered financial loss also.
In the premises complainant prays for redressal against OP and for directing the OP to refund Rs.7,51,000/- with 12 percent interest over the same and further compensation and litigation cost.
On scrutinizing of the records we find that notice was served upon the OP on 03-05-2016 but he did not turn up to contest the case for which the case is heard ex parte finally.
Decision with Reasons
On proper evaluation of the complaint including the documents submitted by the complainant and also the unchallenged testimony of the complainant it is prayed that on 29-03-2015 in the daily newspaper Anandabazar Patrika at Siliguri (Sunday), Carrier World of Chatterjee International Centre, 16th Floor, Suite – 1A made a wide publication of heading – Admission Guidane – 2015 – book your seat now at cheapest rate in MD/MS or Mds/BDs in Kolkata, Pune, Bangalore – Clinical or Non-clinical.
Complainant’s version is that complainant’s son already passed BDS from Bangalore and complainant intended to admit his son in MDS and being allured by the said advertisement complainant contacted with the OP and one Sourav Dasgupta, proprietor of Career World asked the complainant that their son will be provided with one seat in Kolkata for admission in MDS and only five seats were available at that point. So, complainant was asked to deposit Rs.8 lakhs immediately for booking the seat and as per advice of the OP and relying upon the assurance of the OP complainant initially paid Rs.30,000/- to Career World in ICICI Bank on19-05-2015. Thereafter, complainant was asked to deposit balance amount of Rs.7,70,000/- and finding no other alternative and urgency for admission of his son in MDS on20-05-2015 and 21-05-2015 complainant paid Rs.4,70,028/- and Rs.3,00,028/- respectively by RTG in the name of Career World but subsequent to that when complainant along with her husband and son met with OP, OP started that there is no vacancy but OP shall took all steps for admission at Haldia and accordingly, complainant went to Haldia along with her husband and son and their they found that the entire matter is a hoax when complainant asked the OP why in such a manner they misguided and by mis-representation why they have collected that amount when OP stated that if they cancel their booking OP shall have to refund the entire amount and at that point complainant directed the OP to refund the sum after cancelling the booking.
It is apparent that the entire booking was cancelled and OP assured the complainant that the amount shall be paid by instalment and accordingly issued two cheques of Rs.2 lakhs each being cheque nos. 262163 and 262164 i.e. total Rs.4 lakhs and complainant relied upon such issuance of cheques in support of refund of 50 percent of the amount. Complainant received the cheques and deposited the same against her bank account no.913010009287013 in the Axis Bank, Jalpaiguri but those chequest were dioshonoured for insufficient fund as OP has no sufficient fund for these two cheques and in such a situation complainant was completely disheartened and again met with the OP. Prior to that OP issued another cheque of Rs.3 lakhs being cheque no.011061 dated 01-06-2015 drawn on ICICI Bank, Chowringhee Branchbut that was also dishonoured by return Memo dated 02-06-2015.
After considering the conduct of the OP complainant and his family member became frustrated and also suffered mental pain and agony when they lastly contacted with the OP but ultimately OP transferred a sum of Rs.49,000/- by way of fund transfer in the bank account of the complainant’s husband and thereafter, OP did not pay the remaining balance amount of Rs.7,51,000/- though complainant met with the OP several times and ultimate OP avoided to pay.
Considering the material documents and particularly the cheques, three in numbers as issued by the OP in favour of the complainant which were dishonoured due to insufficient fund in the account of the OP we are convinced that OP admitted the fact that he received Rs.8 lakhs and there is bank document which also supports that sum was transmitted to the account of the OP on 20-05-2015 and 21-05-2015 that is total sum of rs.7,70,000/- and it is also proved prior to that complainant paid Rs.30,000/- to the Career World on 10-05-2015 and no doubt the purpose of payment that amount to the OP by the complainant was nothing but as per advertisement of the OP complainant intended to admit his son in any Kolkata College for admission in MDS and OP by publication in the Ananda Bazar Patrika on 29-03-2015 published that advertisement that they shall admit the student in MDS and asked the intended candidates for booking the seat at cheap rate. So, it is clear that the payment was made for admission of the son of the complainant in MDs but ultimately OP did not provide such service or did not book his seat for admission in MDs in any college but on the contrary OP expressed that there is no vacancy of seat in any college and asked the complainant to go to Haldia but at Haldia but they found that it is completely a hoax.
Considering the above materials on record it is clear that this publication is nothing but a mis-representation to the student and their guardians and it is proved that by adopting this process OP collected money which is nothing but an unfair trade practice and in this regard the judgment passed by Justice Hon’ble Dalbir Bhandary and other of the Supreme Court regarding adoption of unfair trade practice by any establishment regarding admission etc. shall not be looked into casually but positive steps should be taken.
In view of the above fact that Career World, the OP knew fully well that they have their no capacity to admit such student in MDS by capitation fees but it was not within the knowledge of the complainant when such an advertisement was published in a very renowned Patrika at Anandabazar Patrika on 29-03-2015 and invariably complainant thought that OP establishment has such capacity or they have their such source to admit students in MDS on payment of capitation fees and the whole procedure as adopted by the OP is nothing but an unfair trade practice and by adopting such unfair trade practice and deceitful manner of trade and by such a mis-representing publication for admission to MDS was published and for that act no doubt complainant has been deceived on payment of Rs.8 lakhs and no such service has been provided against such payment of admission to MDS. So, the entire conduct of the OP is nothing but a deceitful manner of trade and by adopting such deceitful manner of trade and unfair act of business OP has deceived the complainant.
Another factor is that complainant is an establishment who has nothing but to deceive the intending students who are trying to be admitted to MDs or MBBS etc. and fact remains OP got such chance to defend the case but even after receipt of notice of this complaint they did not turn up which simply proves that the OP no doubt adopted unfair trade practice and for which they have nothing to say before this Forum and for that reason they did not turn up.
Further on overall evaluation of the entire conduct of the OP and their entire publication dated 29-03-2015 in Anandabazar Patrika at Siliguri we are confirmed that the purpose of making the issue of an advertisement was an essential factor to attract the intended students and to collect such money and when in the said advertisement it is specifically mentioned that the said advertisement was made for asking the student to book their MDs seat then it is clear that OP sold their service against money giving assurance of booking a seat in MDs so, invariably by that advertisement the complainant and their family members were highly appraised to that there was scope for admission through that OP concerned and ultimately OP by that advertisement confirmed by booking of the seat for the admission in MDs and in reality complainant hired the service on good payment of Rs.8 lakhs but, in fact, no service was given, no seat was booked but money was received by the OP and about receipt of Rs.8 lakhs by the OP is proved beyond any manner of doubt that when all the documents as produced by the complainant support that these amounts were credited in the account of the OP so, invariably such an act on the part of the OP is an unfair trade practice though OP was aware that they have their no such capacity but by false representation deceived the complainant which is proved and the advertisement was not a genuine one at the same time proved for which said advertisement is nothing but a misleading advertisement for which entire conduct of the OP is an unfair trade practice. It is also proved that complainant as consumer has been misled into thinking that a genuine service would be offered.
So, in the eye of law entire trade practice as adopted by the OP is nothing but an unfair trade practice and advertisement is misleading and practically deceitful in nature.
Another factor is that OP ultimately returned Rs.49,000/- and prior to that he issued three cheques but all the cheques were dishonoured and that conduct of the OP also proves that entire intention of the OP is to grab money by false representation through such misleading advertisement.
It is equally true that complainant has brought Criminal proceeding u/s.38 of the N.I. Act at Jalpaiguri CJM Court but that is separate proceeding and for that reason the present complaint cannot be a bar as per C.P. Act when ingredient of the act is found in the present case for which the present case is maintainable in the eye of law and pending of criminal case u/s. N.I. Act has not created any bar and for which the present complaint is maintainable and at the same time the complainant has proved that by very dishonest means OP by mis-representing advertised and adopted deceitful and unfair trade practice and for that reason complainant is entitled to get redressal as prayed for.
In the result, the complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed ex parte against the OP with a cost of Rs.10,000/-.
OP is hereby directed to refund the entire amount of Rs.7,51,000/- along with 12 percent interest with effect from 21-05-2015 till its full payment to the complainant.
For harassing the complainant and for adopting deceitful manner of trade and unfair trade practice and also for publishing misguiding false advertisement to allure the customer and at the same time for causing mental pain and suffering including loss of years to the son of the complainant and further financial loss OP shall have to pay Rs.1lakh as compensation to the complainant.
Considering the adoption of unfair trade practice and deceitful manner of trade to deceive the customer at large in such a fashion by advertising false and misrepresenting advertisement in the daily newspaper and also for grabbing money from the market in such a manner the OP is imposed penal damages of Rs.50,000/- and same is imposed to protect the interest of the consumers and to check the OP from proceeding such sort of deceitful manner of trade and if it is collected it shall be deposited to this Forum.
OP is directed to comply the order and to pay the entire decretal amount within one month from the date of this order failing which for non-compliance of the Forum’s order and also for harassing the complainant for further period OP shall have to pay a penal interest at the rate of5,000/- per month till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
