KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the final order judgement dated 30/03/2023, passed by the Ld. DCDRC, Cooch Behar, in CC/61/2021.

In brief, the Appellant/OP no.1’s case is that, the Respondents nos. 1, 2 & 3/Complainants, are legal heirs of the deceased/Swapan Kundu, who had been admitted in critical condition to Dr. P K Saha Hospital Pvt. Ltd., Cooch Behar, on 23/08/2021 and on 25/08/2021, had been diagnosed, to be suffering from acute OIV kidney disease, after necessary examinations. The deceased/Swapan Kundu, had been discharged, on the same date, to transfer the patient to a higher medical center, for further expert investigation. The Respondents 1,2,3 (Complainants), on being advised by the consulting doctor, intended to immediately take the deceased, for further treatment to Manipal Hospital in Bangalore. As the deceased, was not in a position to travel, the Appellant/OP no.1 and the Respondent no.4/OP no.2, had been contacted, for arranging an air ambulance to airlift the deceased from Cooch Behar to Bangalore. As per the agreement with the Appellant/OP no.1, the Respondents/Complainants, made payment of Rs.13,50,000/- (Rupees thirteen lakhs fifty thousand) only, through NEFT, for arranging air ambulance. But the deceased could not be airlifted, as per the arranged schedule, as the deceased had to be rushed to Neotia Getwel Health Center, Uttarayan, Siliguri, in CCT Isolation Unit and also advised by the doctor, not to move the patient any further. Unfortunately, the deceased expired on 30/08/2021, due to septic shock on acute OIV kidney disease coupled with severe SARS Covid-19, at Neotia Getwel Health Center.

As per the advice of the doctor, the Respondents/Complainants opted for cancellation of the air ambulance, from the Respondent no.4/OP no.2, through e-mail on 27/08/2021 and sought refund of the entire amount of Rs.13,50,000/- (Rupees thirteen lakhs fifty thousand) only, paid by the Respondents/Complainants. On 29/09/2021, the Appellant/OP no.1, issued a Tax Invoice Bill being no. KT/717/2021-22, whereby an amount of Rs. 13,50,000/- (Rupees Thirteen lakhs fifty thousand) only, was mentioned. Thereafter, the Respondents no. 1,2 & 3/Complainants, served a Legal Notice dated 08/10/2021 for refund of the above amount, but the Appellant/OP no.1, did not respond whereas the Respondent no.4/OP no.2, replied vide a Notice dated 21/11/2021, absolving themselves from the responsibility and blamed the Appellant/OP no.1, for the non-payment. Finding no alternative, the Respondents no. 1, 2 & 3/Complainants, filed a complaint before the Ld. DCDRC, Cooch Behar, with necessary prayers.

The Appellant/ OP no.1, did appear to contest the case initially by filing a written version which was not accepted and thereafter abandoned the case, which was heard ex-parte, against them.

The Respondent no.4/OP no.2, also appeared to contest the claim, by filing written version, wherein they denied the allegation against them. It was stated that as the patient could not be air lifted on the scheduled time, the instant case had been wrongly filed on the ground of alleged delay in providing air-lifted services. No promises or assurances had been made by the Respondent no.4/OP no.2, to the Respondents 1, 2 & 3/Complainants, nor was there any interaction or link established between them, for which reason there was no cause of action against them. The Respondents 1, 2 & 3/Complainants, had interactions exclusively with the Appellant/OP no.1 and the invoice also had been raised by the Appellant/OP no.1. Even if an indirect relationship was established through the Appellant/OP no.1, the terms and conditions of the service of the Respondent no.4/OP no.2, was available on the latter’s website and as per that terms no amount was payable to the Respondents 1,2 & 3/Complainants. That apart the Respondent no.4/OP no.2, had replied to the Legal Notice sent by the Respondents/Complainants. Therefore, the complaint was liable to be dismissed.

After going through the materials and evidence on record, the Ld. DCDRC, Cooch Behar, passed the impugned order directing the Appellant/OP no.1 and the Respondent no.4/OP no.2, to pay a sum of Rs. 13,35,000/- (Rupees thirteen lakhs thirty-five thousand) only, in equal share within 30 days, from the date of the Order, failing which interest @ 10% p.a., would be attracted.

Being aggrieved by the impugned order, the instant appeal had been preferred on the ground, that the Ld. DCDRC, Cooch Behar, had erred in law and facts, while passing the impugned order.

Decisions with Reasons

Ld. Advocate for the Appellant, at the time of final hearing, had submitted that the role of the Appellant, was merely as an intermediary, as he had availed only Rs.1,15,752/- (One lakh fifteen thousand seven hundred fifty-two) only and paid the remaining amounts on 25/08/2021 and 26/08/2021 amounting to Rs.10,99,248.05 out of the total Rs.13,50,000/- (Thirteen lakh fifty thousand) only, to the Respondent no.4/OP no.2. It was further submitted that an amount of Rs.1,00,000/-(One lakh) only had been paid on 27/08/2021 and further Rs.20,000/-(Twenty thousand) only had been paid on 25/09/2021 to Shri Soumava Roy, a public representative of the Respondent no.4/OP no.2. It was further submitted, that the Respondent no.4/OP no.2, after availing the amount of Rs. 12,19,248/-( twelve lakh nineteen thousand two hundred forty-eight) only, failed to provide the air ambulance and therefore the Respondent no.4/OP no.2, was liable to refund the amount. Thus, the direction upon the Appellants, in the impugned order to refund Rs.6,67,500/-, (Six lakh sixty-seven thousand five hundred) only, to the Respondents/Complainants, is erroneous as he had availed Rs.1,15,752/- (One lakh fifteen thousand seven hundred fifty-two) only. He therefore prayed for setting aside the impugned order, by allowing this appeal.

Ld. Advocate for the Respondents 1, 2 & 3/Complainants, on the other hand submitted that the Respondent no.4/OP no.2 had complied his share of the direction passed in the impugned order and prayed for direction upon the Appellant no.1/OP no.1, for necessary compliance.

The Respondent no.4/OP no.2, did not appear to contest the appeal and therefore the appeal was heard ex-parte, against them.

It is not disputed that the Appellant/OP no.1 was liable to pay the entire amount to the Respondent no.4/OP no.2, for providing the air ambulance. Bulk of the amount had been received by the Respondent no.4/OP no.2. No appeal was preferred by the Respondent no.4/OP no.2, against the impugned order.  In the case of cancellation, as in the instant case, the Respondent no.4/OP no.2, had to refund the amount after deducting necessary cancellation charges, which the Ld. Commission below, had fixed at 10%. The amount therefore refundable by the Respondent no.4/OP no.2 arrived at Rs. 12,15,000/-. (Rs13,50,000 - Rs1,35,000)

Therefore, the factum of payment of Rs.13,50,000/- (Thirteen lakh fifty thousand) only, to the Appellant/OP no.1 by the Respondents/Complainants though not disputed needs to be verified. The Appellant/OP no.1’s case is that, the entire amount had been transmitted to the Respondent no.4/OP no.2, after deducting their share of commission, amounting to Rs.1,15,752/- (One lakh fifteen thousand seven hundred fifty two)only. In this regard, Annexure A, consisting of pages 36, 37, 38, 39, 40, 41, 42 & 43 had been provided, to establish the payment made to the Respondent no.4/OP no.2, by the Appellant/OP no.1, which is reproduced below in the Chart Form:

Therefore, the above Chart including the payment of Rs.20,000/- (Twenty thousand) only, to Shri Soumava Roy shows, payment of Rs.11,19,248.05. Therefore, out of Rs.13,50,000/-, the Appellant/OP no.1 had transferred the above amount only and was liable to make good (Rs.13,50,000.00 - Rs.11,19,248.05) =Rs.2,30,751.95. The Appellant/OP no.1, is thus, directed to pay the above amount to the Respondents/Complainants, by issuing a Cheque in the name of all the three Respondents/Complainants. On the other hand, the Respondent no.4/OP no.2 is liable to pay (Rs.13,35,000.00 - Rs.2,30,751.95) = Rs.11,04,248.05. Out of which, the Respondent no.4/OP no.2, had already paid Rs.6,67,500/- (Six lakh sixty-seven thousand five hundred) only, which means that the Respondent no.4/OP no.2, is liable to pay further amount of (Rs.11,0,4248.05 -Rs.6,67,500.00) =Rs.4,36,748.05. Therefore, the impugned order partially needs to be modified to the extent that the Appellant/OP no.1, should pay Rs.2,30,751.95 and the Respondent no.4/OP no.2, shall pay the amount of Rs. 4,36,748.05. As a result, the instant appeal succeeds.

It is therefore

ORDERED

That the instant appeal be and the same is allowed on contest, against the Respondents 1,2 & 3/Complainants and allowed ex-parte, against the Respondent no.4/OP no.2, but without cost.

The impugned order is modified to the extent mentioned in the body of the judgement.

The Appellant as well as the Respondent no.4, are directed to comply with the order within 45 days from the date of receipt of this order, failing which interest @ 9% p.a. would be attracted.

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRC, Cooch Behar, for necessary information.

Statutory deposits be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC, to do the needful.