Date of filing:21.12.2022

                                                                                                Date of Disposal:27.07.2023

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 27^th Day of July 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 2487/2022

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ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

1. This is an appeal filed by complainant in CC/374/2021 on the file of IV Additional District Consumer Disputes Redressal Commission, Bengaluru aggrieved by the order dated 31.10.2022.  (The parties herein after will be referred as to their rank assigned by the Commission below)

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard appellant no.1/complainant no.1 in person and learned counsel for OPs/respondents.

3. Complainant Nos.1 and 2 being husband and wife raised a Consumer Complaint U/s 35 of CPA, 2019 alleging deficiency in service on the part of OP Nos.1 to 3.  The brief facts are: complainants had deposited 9 USD term deposits for a term period of 05 years maturity on 08.02.2021.  On maturity USD has to be paid by FCY DD and this DD can be either deposited in any bank under local forex deposit or in INR immediately by sale of draft.  However, OP Nos.1 to 2 either deliberately or inadvertently or by immaturity in paying FCNR maturities resulted in cost and losses due to delay including usage of wrong, incorrect and duplicated transfer applications and actions beyond depositors instructions.  According to complainants maturity proceeds were to be paid back through DD.  However, OP1 branch did not arrange for same due to OP2 branch handling FCNR wanted to keep the deposits in USD or INR with them.  Further AGM branch controller wanted to cause loss no interest profits by paying proceeds through SWIFT transfer.

4.   Thus according to complainants two significant deficiencies are rendered.  They are deficiency in technology system at branch Kolkata Global Hub of OPs resulted in delay during which period INR - USD fluctuation caused loss around Rs.14,000/- and due to OP2 specific malicious act of charging transfer charges on complainant and delaying a value SWIFT transfer.  It is thus there were two types of losses in deductions namely market loss and unwanted delay. 

5. The OPs have contested the complaint before the Commission below and have filed their version denying the deficiencies on their part. 

6. In view of rival contentions of the parties to the complaint, Commission below held an enquiry, received affidavit evidence of complainant No.1 along with documents and received evidence of branch manager of SBI along with documents.  After closure of enquiry, Commission below heard complainant no.1 and learned counsel for Ops, proceed to dismiss the complaint as not maintainable, citing two decisions reported in CPJ 2016, 110(NC) between Mahesh Kumar v. AG Motors  and CPJ 2018, 1 page-86 between The Tax Publishers v. UCO Bank and others, forming opinion as the allegations made against OPs   required elaborate evidence, as it involved mixed question of law and facts which is not possible to adjudicate in a summary trial in order to adjudicate the same a full fledge trial is required where both parties are at liberty to putforth their case with necessary documents in support of their contentions and held relief to the complainants lies elsewhere not before the Commission and complainants are at liberty to get redress their grievances before appropriate authority.  It is this order being assailed in this appeal, contending there are no complicated facts and laws that need expertise beyond superficial knowledge of contract and binding in the complaint and the impugned order is a sub-silentio on one hand and then per-incuriam.  And on the contrary, learned counsel for OPs would submit that Commission below has rightly dismissed the complaint to approach appropriate authority.

7. Let us examine the proceedings of the complaint case initiated by complainant Nos.1 and 2 against OPs.  They filed complaint on 04.09.2021 and the Commission below admitted the complaint, issued notice to OP Nos.1 to 3 who are represented by their counsel have also filed their version.  In view of rival contentions, Commission below did not stop their but proceed to receive affidavit evidence and documents from both parties, held an enquiry.  Mr.Gopinath S, examined for complainant nos.1 and 2 placed document nos.1 to 11 and Mr.Rohit Mithal, examined for SBI, Girinagar branch, placed Ex.R1 to R4 and this enquiry is held summarily. 

8. The complainants alleged against OPs that due to delayed transfer they have to sustain loss and they have sought for compensation for delay in transfer of USDs due to technical glitch at their Kolkata IT Hub at 08^th and 09 February.  In their complaint have stated loss of conversion of USDs for 17 paisa per USD which is INR 18,896.19.  They have also sought for return of USD 17 (INR 18,000) being shot sent by SBI and they have also sought for compensation as well as deterrent damages for rendering deficiency in service on the part of OPs.  The complainants have placed documents commencing from FCNR deposits list as per SBI payable on 08.02.2021, Whatsapp messages and Emails, Recorded deficient technical status at Kolkata Hub of OP Nos.1 to 3, Instruction to transfer without charges written twice on SBI Form, Specimen of FCNR DD deposited with OP1 SBI 2018, SWIFT Report dated 09.02.2021 and OP Nos.1 and 2 delayed payment of maturity proceeds of 9 USD deposits beyond 08.02.2021.  On the contrary OPs have also placed Email sent by complainant to OP3; Forex Application submitted by complainant to OP3, SWIFT Confirmation Message dated 10.02.2021 received by OP2 Forex Branch of SB and Foreign Currency ready rates as on 08.02.2021, 09.02.2021 and 10.02.2021.  Thus, now question arises where is the complication to decide on the complaint raised by complainant nos.1 and 2.  We have to bear in mind that already civil courts are heavily burdened across country and the object of Consumer Protection Act, 2019 is an act to provide for protection of the interest of consumers and for the said purpose to establish authorities for timely and effective administration and settlement of consumers disputes and for matters connected therewith or incidental thereto.  It is not that complainant nos.1 and 2 are not consumers and the OPs are not service providers.  Admittedly, their relationship as consumer and service provider is not disputed at all.  Section 2(42) defines –

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

9. Thus this definition coupled with materials placed by parties to the complaint suffice to hold that complaint raised by complainant nos.1 and 2 is perfectly comes within the purview of Consumer Commission was not at all examined by the Commission below.  It is therefore, complainant no.1 is right in contending that there are no complicated facts and laws that need expertise beyond superficial knowledge of contract and banking in the complaint and rightly submitted impugned order is sub-silentio, since ratios laid down in CPJ 2016, 110(NC) between Mahesh Kumar v. AG Motors and CPJ 2018, 1 page 86 between The Tax Publichers v. UCO Bank and others are blindly cited without applying mind as to how the ratios laid down by the Hon’ble NCDRC applies to the facts and circumstances of the case raised by complainant nos.1 and 2 wherein their case is made out very simple for which the Commission below has already held an enquiry by receiving all the materials and the  next course would be to decide on the alleged rendering deficiency of services on the part of OPs.  Hence we conclude impugned order passed by Commission below calls for interference. Accordingly, we proceed to allow the appeal filed U/s 41 of CPA, 2019. Consequently, set aside the order dated 31.10.2022 passed in CC/374/2021 on the file of IV additional District Consumer Disputes Redressal Commission, Bengaluru and remanded back the matter to District Commission to decide the complaint on merits as observed affording opportunity to both parties as early as possible  not later than 03 months from the date of receipt of the order since the complainants are senior citizens.

10. Send a copy of this Order to the District Commission and parties to the appeal.

        Lady Member                                   Judicial Member            

*GGH*