The complainant has filed the complaint against the O.Ps alleging therein that on March 2020 Swapna Chakraborty, principal of Kids Wings School send the complainant an invitation to participate in an event, that event jointly organized by Siliguri Film Maker Sabuj Das (SabujBonani) and the K.W.school by which Sabuj Das selects some students of the school for his next film. After that event and selection of students, a meeting was arranged in the school room, and the guardians of the selected students are asked to deposit Rs. 3200/ each in advance. Complainant pays the money and collect the money receipt signed by the school receptionist Utsa Chakraborty. After taking the money both the opposite party was silent. The version of the complainant is that they have no relation with the O.P-2. The O.P-1 introduces the O.P-2 with them. Having no other alternative, the complainant sent a letter to the OP-1 with regard to genuineness of film making initiative by the school. Till date no film is made. No money is refund. Hence, the complainant has filed the instant consumer case against the OPs with the following reliefs.

• Direction to the opposite parties to refund the complainant the amount of 3700/- Rs (3200+500) with @12% interest.
• Direction to the opposite parties to pay the complainant Rs 10000/- for mental agony, Harassment, long time sufferings.
• Direction to the opposite parties to pay litigation Cost Rs. 15000/-.
• Direction to the opposite party K.W.School to pay the complainant Rs. 15000/- as they intentionally neglect the security of the small school students.
• Any other relief, the Hon’ble commission further pleased to award.

Upon notice, the OPs 1, appeared and filed their W.V alleging that the allegation made out in the complaint petition is motivated and misleading. In W.V (Para -7) the O.P-1 said that “The principal Kids Wing School Jalpaiguri Swapna Chakraborty was no way involved with this and was unaware about the alleged facts” O.P-1 denied his all relation with the O.P-2. O.P-1 files evidence on affidavit and brief notes of argument (BNA) and also participate in hearing of argument.   The notice upon O.P-2 was return back by the postal department without endorsement.   In this context, it is pertinent to mention here that the name of OP-2 was expunged from this case on the prayer of the complainant vide order dated 12/04/2022.

Points for consideration

1. Whether the complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act 2019?
3. Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
4. Is the complainant is entitled to get any award and relief as prayed for?

All the points are taken up together for consideration and decision.

Complainant is a consumer of the O.Ps. The complainant has both the territorial and pecuniary jurisdiction for filing the case before this commission. These points are never challenged by the OPs.

Against the questions put in the questionnaires by the complainant the O.P. No.1 states the following

• The function of the OP No.1 is negligible.
• The concern person has a negligible role being a mere casual under staff of OP No.1 and that person has no scope of profit as alleged against her and here the OP No. 1 never had entertained any activity in coercion between her and OP No.2.
• The receiving initial is made by the under staff of O P No.1 but money receipt has filed by the Document No.3 by the complainant is the name of the O.P.No.2 on 12.3.2020.
• The said Invitation Card are tampered or manufactured as the letter head or pad is diverse from the original letter head and pad being used by the OP No.1.
• That as above the logo, sign, etc. which alleged to O P No. 1 is not proper.
• The OP No.1 had limited information or intimacy with OP No. 2
• O.P-1used her SCI premises for only in good faith.

In their W.V, Evidence on affidavit and B.N.A the O.P-1 denied his relation with the O.P-2. But at the time of giving answer to the questionnaires asked by the complainant, the O.P-1 stated that “function of the OP No.1 is negligible”, “concern person has a negligible role being a mere casual under staff of OP No.1” “receiving initial is made by the under staff of O P No.1” “OP No.1 had limited information or intimacy with OP No. 2” “O.P-1used her SCI premises for only in good faith”

In a very significant judgment with far reaching consequences, the THE SUPREME COURT OF INDIA in a learned, laudable, landmark and latest judgment titled Pradeep Kumar And Anr. vs Post Master General and Ors in Civil Appeal No. 8775-8776 of 2016 delivered as recently as on February 7, 2022 held that once it is established that fraud or any wrongful act was perpetrated by an employee of a post/bank office during the course of their employment, the post/bank office would be vicariously liable for the wrongful act of such employee. The Supreme Court clarified that the post office is entitled to proceed against the concerned officer, but the same would not absolve them from their liability. 

O.P-1 alleged that invitation card produced by the complainant are tampered or manufactured as the letter head or pad is diverse from the original letter head and pad being used by the OP No.1and the logo, sign, banner etc. which alleged to O P No. 1 is not proper. But, the O.P-1never file any complain against the complainant in the local police station about this serious allegation.

In their evidence on affidavit (Para -9) O.P-1 stated about Mr. Dilip Adhikari, whom they sent reply through registered post. But, the versions of Mr. Dilip Adhikari never come before this commission as evidence. O.P-1 never applied for adding Mr. Dilip Adhikari as a necessary party in this case. 

We have gone through the records and other related documents of the case and have come to conclusion that the Respondent No- 1 has a direct or indirect relation with the O.P- 2. O.P-1 had deliberately suppressed the material facts before this District Consumer commission. It is settled law that a person who approaches the court for granting relief, equitable or otherwise, is under a solemn obligation to candidly and correctly disclose all the material/ important facts which have brought on the adjudication of the issues raised in the case. He owes a duty to the court to bring out all the facts and desist from concealing/ suppressing any material fact within his knowledge or which he could have known by exercising due diligence expected of a person of ordinary prudence. The apex court has repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be hard on the merits of his grievances. In this case if the correct facts would have been disclosed by O.P-1 the O.P-2 might have been come in this commission for proper adjudication of the case.  In our view O.P-1 would be liable for the contributory negligence. In view of the above discussion we may come to the conclusion that the O.P.No-1 is guilty for deficiency in services and the service provided by the other O.P.-1 were not up to the mark.

In view of the aforementioned discussions, we are of the view that the complainant is entitled to get reliefs as per Consumer Protection Act and there is deficiency in service and unfair trade practice on the part of the OP-1. Thus, the consumer case is allowed in part on contest against the OP- 1.  The consumer case is disposed of in the following terms:-

1. OP- 1 is directed to refund Rs. 3200/- to the complainant with interest @ 9 % p.a. from 12/03/2020 (the date of receiving the amount from the complainant).
2. O.P-1 is further directed to make payment of Rs. 5,000/- (Rupees five thousand) only as compensation for harassment and mental agony caused to the complainant on account of deficiency in service and unfair trade practice.
3. Above payments shall be made within 30 days from the date of this order. Failing which the amount shall carry interest @ 9 % p.a. from the date of order till its realization. Complainant is given liberty to execute the order as per law if not paid by the OP.

Let a copy of the order be sent / supplied at free of cost to the parties concerned.

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