Date of Filing: 22-06-2015 Date of Final Order: 31-03-2016
The Complainant, Smt. Janaki (Ishore) Barman has filed the present case u/s 12 of C.P. Act, 1986 praying for issuing direction upon the O.Ps to return back the policy amount of Rs.1,00,000/- with 8% interest till realization and Rs.50,000/- as compensation for mental pain & agony, unnecessary harassment, financial loss, unfair trade practice and deficiency in service and litigation cost of Rs.10,000/- with other relief.
Briefly stated the facts of the case can be gathered from the case record is that the Complainant purchased one (M.R.P) Policy vide Sl. No. 003MRP4552, dated 15/01/2013 by depositing Rs.1,00,000/- from the O.P Company, Swapnadeep Dealtrade Ltd., Mathabhanga Branch through O.P. No.3, i.e. Smt. Pramila Barman who is the agent of the O.P. No.1 & 2 and the O.P. No.1 & 2 issued a Certificate in favour of the Complainant against the Policy particulars .The Policy details are given below:-
Sl. No | Name of Policy Holder | Customer ID | Certificate Sl. No. | Deposited date | Terms | Deposited amount (Rs.) |
1 | Janaki (Ishore) Barman | 10300001711 | 003MRP4552 | 15/01/2013 | 6 months | 1,00,000/- |
The Complainant purchased the above Policy to earn his livelihood. But the Complainant did not receive any interest amount from the O.P. No.1 against her deposited money to the O.Ps. Accordingly, the Complainant meet with the O.P. No.3 to get back her said interest amount and the O.P. No.3 assured that she will take necessary step within a short time. Thereafter the Complainant on several occasions met with the O.P. No.3 also the branch office of the O.P. No.1 & 2 and requested them to return back her invested amount with interest as the O.Ps did not kept their promise. But on all occasions the O.Ps falsely assured to the Complainant. Ultimately all efforts of the Complainant regarding to get back her deposited amount were in vain. Lastly, the Complainant lodged one Treat F.I.R at Ld. A.C.J.M., Mathabhanga against the O.Ps on 19/11/2013 regarding the said fact.
Due to such activities of the O.Ps, the Complainant also suffered huge mental pain & agonies, and finding no other alternative; she has filed the present case before this Forum seeking redress and reliefs as incorporated in the prayer portion of the Complainant.
In the present case, the O.P. No.1, Sri Mithun Roy, Branch Manager, Swapnadeep Dealtrade Ltd., Mathabhanga Branch and the O.P. No.2, Sri Amalesh Roy Dakua, (Director), Swapnadeep Dealtrade Ltd., did not appear before this Forum despite receiving the notice/properly delivered by the Postal department, for which this case was heard in ex-parte against the O.P. No.1 & 2.
The O.P. No.3, Smt. Pramila Barman, agent of the Swapnadeep Dealtrade Ltd., has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to bring this case. The main contention of this O.P is that she did not know the above Complainant and never visited the house of the Complainant in purpose of invested money at the said financial institution / chit fund as she stated in her complaint. The Complainant filed such false allegation against this O.P-3, who was also functioning as an agent of the Swapnadeep Dealtrade Ltd.,
It is the case of the O.P. No.3 that such allegation of the Complainant is not genuine in view of the facts that “Nullas Commodum Capere Potest Se Injuria Sua Properie” (No man can take advantage of his own wrong). It is maxim of law, recognized and established that no man shall take advantage of his own wrong and the maxim which is based on elementary principles is fully recognized in courts of law and of equity and indeed admits of illustration from every branch of legal procedure.
It is the further case of the O.P. No.3 that the Complainant deposited the money in the aforesaid financial company in favour of her which will prove from the Monthly Incentive statement for the month of March, 2013 issued by the Swapnadeep Dealtrade Ltd. to the tune of Rs.4,002.09/- as incentive for such deposits Smt. Janaki’s Agent Code No.10300002687.
The O.P. No.3 further contended that the Complainant has lodged a Treat F.I.R No.18/2014 in the court of the Ld. A.C.J.M at Mathabhanga against the above O.Ps on the same issue where the Complainant has become the witness of the case and the case is also in offing. Thus, the O.P. No.3 stated in her Written Version that there is no deficiency in service on the part of this answering O.P.
By putting all this O.P. No.3 prayed for dismissal of the instant case.
In the light of the foregoing discussion, the following moot points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1) (d) (ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record also heard the argument advanced by the Complainant and the O.P. No.3 at a length. Perused and considered also the Annexure marked as 1-15 fields by the O.P. No. 3.
Point No.1.
The Complainant procured receipts, certificates against investment of Rs.1,00,000/- from the O.P Company. The O.P. No.1 issued money receipt by receiving the certain amount from the complainant. Thus, the relation between the Complainant and the O.Ps so established from the record we are convinced to hold that the Complainant is the Consumer of the O.Ps under u/s 2(1) (d) (ii) of the C.P. Act, 1986.
Point No. 2.
The O.P-1 Company has its branch office at Mathabhanga under Cooch Behar district within the jurisdiction of this Ld. Forum. Thus, as per section 11 of C.P. Act this Forum has territorial jurisdiction to try this case. Moreover, the complaint value of Rs.1,60,000/- which is far less than the prescribed limit. Hence, this Forum also has the pecuniary jurisdiction to entertain the present complaint.
Point No. 3 & 4.
Undisputedly, the Complainant deposited Rs. 1,00,000/- to the O.P. Company for 6 months with an assurance to get huge return but even after elapsing so many times she did not get the same.
It is the case of the O.P. No. 3 that the Complainant also an Agent of the opposite Party Company and she enjoyed commission from the Company against investment of her closed relatives. The O.P. No. 3 is a mere agent and has no authority to refund the deposited amount. Though the O.P. No. 3 already make payment by transferring her land to the Complainant.
The documents produce by the complainant never claimed that the O.P. No.3 was not deposited her amount to O.P. No.1 &2. Complainant also submitted the receipt copy of the amount deposited to O.P. No.1 & 2. It is totally established that the Opposite Party No. 1 & 2 received the total amount of Rs. 1,00,000/- from the Complainant under the signature and the Seal of Swapnadeep Dealtrade Ltd. with date. So, it is the duty of the O.P. No.1 & 2 to refund the deposited amount of the complainant.
Complainant in her complaint petition admitted the fact that she has also taken so many initiatives to recover the money from O.P. No.1 & 2 but she not get any success. In her Written Argument O.P. No.3 claims that she has taken so many initiatives to recover the money of the investors who invested their money to the O.P. No.1 & 2 (SWAPNADEEP DEAL TRADE LIMITED). The Notary agreement (Annexure 14, Notarial Certificate dated 03/05/2013) between OP2 and other Agents of the company to refund the money of the depositors, the declaration (Annexure 15) of Mr. Kamini Roy Dakua, father of Amalesh Roy Dakua (O.P. No.2) who was taken the responsibility to refund the money of the depositors if his son fails to refund the money on time, proves that OP3 has taken so many initiatives to recover the money from the O.P. No.1 & 2. It is well known that an Agent has no authority to refund the deposited amount on behalf of the Company to the depositor.
The main activity of an agent of a Financial Organization is to collect, deposit and take initiative to recover the money from the Organization. We never saw that the O.P. No.3 is not provided the service to the complainant. So, it is not proved that there was a deficiency in service from the end of O.P. No.3 as and when it is also not proved that the O.P. No.3 did not deposit the premium of the complainant to the OP Company.
The O.P. No.3 (Agent Code- 10300001711) claims that the complainant also an agent (Agent Code-10300002687) of the same Financial Org. In her written version (Annex-A) O.P. No.3 stated that the Complainant deposited the money in the aforesaid financial company in favour of her own agent code. It will prove from the Monthly Incentive statement for the month of March, 2013 issued by the Swapnadeep Dealtrade Ltd. to the tune of Rs.4,002.09/- as incentive for such deposits Smt. Janaki’s Agent Code No.10300002687. Although the complainant is a teacher of a Government Aided Higher Secondary School and It is strictly prohibited for a teacher to be an agent of a financial organization.
In Annexure Page No.5 submitted by O.P. No.3 shows that on 08/04/2013 Complainant Smt. Janaki (Ishore )Barman write a letter to O.P. No.1 and by mentioning her Agent ID code (ID No. 10300002687) she give the power of attorney to her senior Promila Barman (O.P. No.3) for withdrawal of her (Complainant) voucher amount.
If both the Complainant and O.P. No.3 was an agent of the same Financial Organization (F.O) then they both are cheated by the O.P. No.1 & 2.
The upper mention claim, whether the complainant was an agent of the F.O or not, can be proved only when O.P. No.1 & 2 provide the original document or give witness. . From the beginning of the case O.P. No.1 & 2 are absent. They even deny receiving the notice of the forum.
It has been noted that on 15/01/2013 complainant deposited the amount to “SWAPNADEEP DEAL TRADE LIMITED”. The O.P. No.3 submitted a land transfer dead (Annexure- 7-A) made between OP3 and the Complainant. (JL No-27 &95. Mouja Name- Bengaldaha. Khatian No-RS-44. Dag No.448,409. Total land 28 Decimals) It shows that the transfer of land between O.P. No.3 and Complainant made on 19/08/2013. OP3 also submitted another document (Annexure-7) of a “GRAMMA SALISHI SABHA” (Village Level Dispute Redressal Meeting) signed by 25 villagers (Complainant also present in the meeting and refused to sign on it) which was held on 08/09/2013. This document stated that both the Complainant and the O.P. No.3 is the agent of the financial company “SWAPNADEEP DEAL TRADE LIMITED”. The complainant forcefully makes bound the O.P. No.3 to transfer the land to recover her invested money to “SWAPNADEEP DEAL TRADE LIMITED”. Form this document it also reveals that the total land Transfer amount was Rs. 1,69,000/- (One lakh Sixty Nine thousand). The complainant managed to mention only Rs. One lakh instated of Rs. 1.69.000(One lakh Sixty Nine thousand) in the deed to evade the Regd. stamp fee which to be borne by her. Out of this rupees complainant deducted Rs. 92,000 (ninety two thousand) as their (Inclusive her relatives) dues to the O.P. No.3 for their investment in “SWAPNADEEP DEAL TRADE LIMITED”. From the rest amount of Rs. 77,000/- (Seventy seven thousand) Complainant make payment of Rs.30,000/- (Thirty Thousand) to the O.P. No.3. Rs.47,000/- (Forty Seven thousand) still due to the complainant. This document proves that the O.P. No.3 has already paid the alleged amount to the complainant.
The ‘Form 16’ of I.T Act which the complainant submitted (Annexure -2) for the year 2012-2013 and 2013-2014 wherein her incentive income from such deal is not included.
On 19/11/2013 complainant lodge one treat F.I.R at Learned A.C.J.M, Mathabhanga against OP parties without mentioning the real fact or suppressed all the above facts.
It is partly clear from the documents made available in the record that the Opposite Party (No.1 & 2) deprived the Complainant and O.P. No.3. The O.P. No.1 & 2 failed to award the benefit to the complainant as agreed upon. From the documents made available in the record it appears that the O.P. No.3 is already paid the dues of the complainant.
This Forum is of the clear opinion that the Opposite Parties (No.1 & 2) are guilty of deficiency in service. But in case of O.P. No.3 we hold the different view.
All the facts we discussed under the point number 3&4, we think it’s needed (1) more evidence (2) physical presence or trial of the signatories of various evidence submitted by both parties (3) Signature verification of the complainant (4) verification of IT Declaration (Form 16) of the complainant (5) verification Land transfer certificate and understanding the circumstances (6) Verification of Money Deposit certificate (7) Notary Certificate etc. We take all the documents in our consideration because both the complainant and the O.P. No.3 submitted it by affidavit.
It appears that the present case is very complex in nature and questions of law are involved in it. Thus in this juncture, reliance has been placed upon the decision of The honorable National Commission in Safe Home Developers and Contractors vs S.S.B. Ltd IV (2012) CPJ 729 and the decisions of the Honble Supreme Court in Synco Industries vs State Bank of Bikaner & Jaipur and Others I(2002)CPJ 16 and Trai Foods Ltd vs National Insurance Company Ltd and others III(2012)CPJ 17 that where detailed evidence is required to be led by both parties to prove the claim and damages the complainant suffered , necessarily the parties have to be relegated to Civil Court.
In an another case Omega AG-Seeds Punjab Ltd versus Indian Overseas Bank, the Honorable National Commission observed that the “Complex question of facts and law –there are documents running over 100 pages. It is not possible for the Commission in its summary jurisdiction to decide this matter which requires a great deal of evidence both oral and documentary complaint dismissed”.
In the present case in hand it appears that there are so many documents as stated above require a great deal of evidence both oral and documentary. In the light of forgoing discussion and relied on the decisions of the higher court we are inclined to hold the decision that the present case is not possible to decide in the summery trial and deserves to be dismiss.
ORDER
Hence, it is ordered that,
The present Case No. CC/59/2015 is dismissed. No order as to costs. The complainant is at liberty to approach to the Civil Court or any Other Forum.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
Member President-In-charge
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
