West Bengal

Dakshin Dinajpur

CC/10/30

Samir Kr. Bhattacharjee - Complainant(s)

Versus

The Branch Manager - Opp.Party(s)

Shyama Prasad Roy

27 Jan 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 30/2010

Samir Kr. Bhattacharjee.

S/o Sunil Kr. Bhattacharjee,

Vill.: Uttar Chakbhabani, P.O. & P.S. Balurghat,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

1. The Branch Manager.

Bajaj Auto Finance Ltd. Gabgachhi, NH-34, Malda.

2. The General Manager/Controlling Authority, Bajaj Auto Finance Ltd.

C/o Bajaj Auto Ltd. ; II Floor, 232 B Acharya Jagadish Bose Road, Kol- 20.

3. Pritam Mahanta,

C/o Pradip Mahanta,

Vill. Mahantapara, Power House, PO. Bt Park, Dist. D/Dinajpur -733103.

4. Kamalendu Ghosh,

C/o.Sambhu Ghosh,

Vill. Narayanpur, Basanti Bagan, PO. Balurghat, Dist. D/Dinajpur, 733101.

5. Chief Manager,

Balurghat Branch, State Bank of India,

PO. Balurghat, Dakshin Dinajpur - Pin-733101. Opposite Parties

6. Wheels World (Pro-OP)

Vill. Dakbanglopara, Nelson Mandella Sarani,

PO: Balurghat, Dakshin Dinajpur. …………………Pro-Op. Party

For complainant ……………… - Sri Shyamaprosad Roy. Ld. Adv.

Sri Prasanta Datta, Ld. Adv.

For OPs 1 & 2……………………- Sri Anirudha Ghosh, Ld. Adv.

For OPs 3 & 4……………………- Sri H. Kabir, Ld. Adv.

For OP 5 …………………… - Sri Arindam Chatterjee, Ld. Adv.

Date of Filing : 02.07.2010

Date of Disposal : 25.01.2011

Judgment & Order dt. 25.01.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Samir Kr. Bhattacharjee on 2.7.2010 against a number of officials of Bajaj Auto Finance Ltd. and against the Chief Manager of SBI, Balurghat Branch alleging deficiency in service and impleading another as Pro–OP.

Complainant’s case as made out in the said complaint, in brief, is that he purchased from Wheel World – Pro-OP No. 6 a motorcycle valued at Rs.35,199/- on 20.10.2007 having paid an amount of Rs.7,000/- by way of down payment with financial assistance of Bajaj Auto Finance Ltd. of which OPs 1 & 2 are two officials. In the deed of agreement concerning the financial assistance which remains in the custody of Bajaj Auto Finance Ltd., it was stipulated that the remnant amount of price i.e. Rs.28,199/- which was to be regarded as loan amount of the complainant would be repaid by the complainant through 24 cheques each of Rs.1,550/- and that after the completion of repayment Bajaj Auto Finance Ltd. would issue No Objection Certificate (NOC) to the complainant.

Such 24 cheques each of Rs.1550/- drawn by the complainant upon the SBI Balurghat Branch in favour of Bajaj Auto Finance Ltd. were actually made over to the payee. First 15 cheques on presentation by the Bajaj Auto Finance Ltd. were duly encashed. The 17^th cheque bearing No.649179 was, however, returned to the banker of the Bajaj Auto Finance Ltd. with an endorsement “com for insufficien” from the end of the SBI Balurghat Branch – the OP 5 herein. OP-5 also deducted an amount of Rs.185/- from the complainant’s concerned A/c bearing No.11273569279 in view of bouncing of the cheque the complainant as per instruction of Bajaj Auto Finance Ltd. paid in cash Rs.1550/- to OP 3 – Sri Pritam Mahato – authorized collector of Balurghat on 10.6.09. Having inquired the complainant came to be aware that the SBI Balurghat Branch –the OP No.5 herein actually dishonoured the cheque despite the sufficiency of balance in the A/c at the relevant time.

On 30.1.09 the complainant paid in cash another amount of Rs.1550/- to OP4–Sri Kamlesh Ghosh, another authorized collector in view of information furnished from the end of Bajaj Auto Finance Ltd. about dishonouring of cheque which the complainant later on inquiry found to be false.

In fact, Bajaj Auto Finance Ltd. received from the complainant payment of an aggregate amount of Rs.38,750/-, Rs.35,650/- through 23 cheques and Rs.3,100/- in cash through the authorized collectors. Such amount exceeds the stipulated amount by an amount of Rs.1,550/-.

On 4.12.09 the complainant prayed before the OPs 1 to 4 issuance of the NOC, return excess amount of Rs.1,550/- and before the OP-5 SBI for paying back of Rs.185/- deducted by them from the complainant’s A/c. Such attempt went in vain. Lawyer’s notice dt. 17.3.10 sent thereafter for the redressal also proved abortive. In such premises, the complainant brought the complaint praying for directing the OPs 1 & 2 to issue NOC respecting the motorcycle and to return to the complainant a sum of Rs. 1550/- and OP-5 –SBI Balurghat Branch for rectification of their entries purporting deduction of Rs.185/- from the complainant’s A/c. In the complaint, the complainant also prayed for compensation of an amount of Rs.40,000/- from the OPs 1 & 2 and another amount of Rs.40,000/- from the OP-5.

OPs 1 to 2, 3, 4, 5 and the Pro-OP-6 filed separate written versions in the case on 10.8.10 and on 2.12.10. But ultimately the Pro-OP-6 failed to be represented while the hearing of the case was in progress. The case ultimately proceeded ex-parte against the Pro-OP-6.

OPs 1 & 2 in their written versions stated that on 9.9.10 their representative requested the complainant to receive the cheques by way of refund of an amount of Rs.1,550/- as also NOC but the complainant refused to receive the same and that in the premises there was no deficiency in service on their part.

OPs 3 & 4 in their separate written versions averred that certain amount were collected by them from the complainant as per instruction of the OPs 1 & 2.

The OP 5 –SBI, Balurghat Branch in its written version admitted the complainant’s version as to its dishonouring of a cheque but has said that it happened unintentionally. It was done by mistake by newly appointed staff who failed to identify the actual code. OP Bank is ready to credit the amount which was deducted in the concerned A/c of the complainant.

Pro-OP 6 –Wheels World in its written version dt. 10.8.10 stated that even though it has been brought as a party to the complaint, the complainant in his POC neither claimed any relief against him nor disclosed any ground for impleading it as a party.

Now upon the pleadings of the sides following points come up for determination :-

POINTS

1. Was there deficiency in service on the part of OPs?

2. Should the reliefs sought for in the complaint be granted?

Decision with reasons

The averments made in the POC have been verified by the complainant himself. The complainant did not examine any witness but brought on record a good number of documents as exhibits in the case. Such exhibited documents include copies of his different letters addressed to OPs 1,2 & 5 and the concerned postal A/d cards and that of the passbook concerning his A/c with the OP Bank.

The averments made in the written version of the different OPs have also been supported by verification. OP 2 further filed in the case on 7.1.2011, two documents namely an A/c payee cheque for an amount of Rs.1,550/- drawn by them in favour of the complainant and an original NOC with notice to the complainant.

No other evidence was adduced in the case even though opportunity was given from the end of the Forum for the purpose.

Let us now enter into the determination on the two points formulated above.

Point No.1:

In the compliant the allegation of deficiency in service has been virtually against the OPs 1 & 2 who are officials of Bajaj Auto Finance Ltd. and against the OP 5 – SBI, Balurghat Branch.

Let us first take up the allegations of deficiency in service as against the OPs 1 & 2. It has been the case of the complainant made out in his POC that the OPs 1 & 2 received from the complainant extra amount to Rs.1,550/- as an EMI upon the false representation that a cheque made over to them by the complainant had been bounced and that later despite demand made from the end of the complainant, the said OP neither refunded the said amount nor issued the NOC in terms of the agreement.

That the OPs 1 & 2 collected from the complainant an extra EMI of Rs.1,550/- does not appear to have been disputed from the end of the OPs in their written versions. In fact, such OPs 1 & 2 in their written versions took the case that the representative of OP-2 requested the complainant to receive the cheque for an amount of Rs.1,550/- which was, in fact, refundable.

May be in the written version of OPs 1 & 2 there appears no specific denial as to the complainant’s allegation of such OPs’ collecting the extra EMI upon a false representation of a cheque’s getting bounced earlier, having kept in view the mode of payment and the natural course of human conducts, we think, we cannot thwart aside the probability of such two OPs’ collecting the extra EMI upon an incorrect information about dishonouring of a cheque received by them from the end of the complainant. Consideration of the circumstances, thus persuades us not to attach importance to the allegation of OPs 1&2’s collecting extra EMI upon false representation.

Be that as it may, it virtually remains admitted that OPs 1 & 2 collected from the complainant an excess amount of Rs.1,550/- and that extra amount was not proposed to he tendered back, nor the NOC was proposed to be made over to the complainant from the end of the OPs 1 & 2 until it was 9.9.10.

Here complainant’s averments made in his POC that he, under his letter dt. 4.12.09 and 31.3.10 approached to, beside others, OPs 1 & 2 to obtain the refund of excess amount of Rs.1,550/- and the NOC do not appear to have virtually been controverted by the OPs in their written versions. Rather, Exts. 6 & 7 copies of the complainant’s notice dt. 17.3.10 and of the postal A/d card appear to be in consonance with the complainant’s claim of his making approach to OPs 1 & 2 for refund of the said excess amount and of the NOC.

It is true that an original A/c payee cheque purported to be dt. 19.8.10 and an original Certificate of Satisfaction purported to be dt. 27.8.10 were filed in this case on behalf of OP 2 on 7.1.11. But such two documents themselves did not go to show that the cheque and the NOC were actually issued on the dates purported therein.

However, even if it be regarded that a cheque was issued on 17.8.10 and the NOC on 27.8.10 as have been purported on the said to document it has to be borne in mind that those were issued, if at all, after elapsing of a period of over seven months since complainant’s putting demand in writing for the excess amount and the NOC and that too after the institution of this case by the complainant . It has not been the case of OPs that for some substantial reason or the other they were prevented from deciding over the complainant’s said demand earlier. This shows indifference on the part of OPs 1 & 2 in the matter of paying back the excess amount collected by them and in making over the NOC for which demand had been made by the complainant in writing. Such conduct amounts to deficiency in service on the part of OPs 1 & 2.

As against the OP 5–SBI, Balurghat Branch it has been the complainant’s allegation that the 17^th cheque bearing No. 649179 was dishonoured on unjust ground on 13.4.09 even though there was sufficient balance in the complainant’s A/c and that the amount of deduction of Rs.185/- made by the OP-5 in the A/c in view of the said dishonouring of the cheque was neither paid back to the complainant nor was credited to the A/c despite complainant’s demand in writing therefor under his letter dt. 4.12.09 and 17.3.10.

OP 5 in his written version appears to have taken the defence that the dishonouring of the cheque was unintentional and that it happened by mistake committed by newly appointed staff and that it is ready to credit the concerned amount in the complainant’s A/c.

From a consideration of the materials on record and the circumstances, we think, we should not brush aside the contention advanced on behalf of the OP-5 that the unjust dishonouring of the cheque was due to mistake committed by newly appointed staff. But we find from the endorsement and seal appearing on the postal A/d card Ext. 12(b) that the complainant’s notice dt. 17.3.10 demanding rectification of the entries as to the deduction of the amount of Rs.185/- on ground of dishonouring of the cheque was received at the end of the OP-5 on the same date 17.3.10.

OP 5 does not claim to have rectified their mistake to the extent possible but says in its written version dt. 2.12.10 that they are agreeable to credit the amount deducted by them. It has to be borne in mind that the instant case was brought by the complainant even after expiry of over 3 ½ months since service of the said notice dt. 17.3.10 upon the OP-5. There is also no explanation as to why the rectification to the extent possible, could not be made earlier. Such failure to rectify the entries as to the dishonouring of the cheque to the extent possible earlier, constitutes deficiency in service on the part of OP-5.

Point No.1 is accordingly answered by holding that there was deficiency in service on the part of OPs 1 &2 – the officials of Bajaj Auto Finance Ltd. and on the part of OP 5 - SBI, Balurghat Branch.

Point No.2:

The complainant in his POC has prayed for directing the OPs 1 & 2 to issue the NOC, to pay to him a sum of Rs.1,550/- by way of refund of the excess amount collected by them earlier and a sum of Rs.40,000/- as compensation.

OPs 1 & 2 filed an A/c payee cheque in favour of the complainant for an amount of Rs.1,550/- and the NOC on 7.1.2011 while the hearing of the case was in progress. They did so, we presume, to show that they earlier proceeded to make over the refundable amount and the NOC to the complainant. However, the cheque purports to bear the dt. 19.8.10. It is also not apparent whether the matter of NO Objection has, in fact, been brought to the notice of the concerned registering authority.

Having kept in view the extent of deficiency in service noticed in course of our discussion on the Point No.1 and the circumstances, we deem it proper to direct the OPs 1 & 2 to make over to the complainant the concerned NOC and to pay to him a sum of Rs.1,550/- by way of refund of excess amount collected earlier by them, to pay to him Rs.200/- by way of compensation and further a sum of Rs. 200/- towards the costs of this proceeding.

As against the OP 5 –SBI Balurghat Branch the complainant in his POC sought for rectification of the entry dt. 13.4.09 as to the deduction of Rs.185/- in view of dishonouring of the cheque and compensation of an amount of Rs.40,000/-. Consideration of the extent of deficiency in service noticed in course of our discussion on Point No.1, we think it proper to direct the OP 5 to credit an amount of Rs.185/- in the concerned account of the complainant by way of rectification of the said entry dt. 13.4.09 as to the deduction and pay to the complainant a sum of Rs.50/- towards the costs of this proceeding.

OP 2 should,however, be given liberty to take back the cheque and the NOC which were filed by it in this case on 7.1.2011.

Point No.2 is accordingly disposed of.

In the result, the complaint succeeds.

It appears from the case record that the service of notice of this proceeding was completed on 6.8.10. Instant proceeding is thus getting disposed of about 5 ½ months after completion of service of notice upon the OPs. This is, as it appears from the case record, mainly in view of a good number of adjournments sought for from the end of the OPs for presentation of their written version. In fact, the case was one fixed for ex-parte hearing against OPs 3 & 4.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Sri Samir Kr. Bhattacharjee on 2.7.10 is allowed on contest against the OPs 1 to 4 and 5 and ex-parte against the Pro-OP 6 giving directions mentioned hereinafter.

That the OPs 1 & 2 would make over to the complainant the concerned NOC and to pay to him a sum of Rs.1,550/- by way of refund of excess amount collected earlier by them within 30 days from the service of copy of this order upon them.

OPs 1 to 2 would further pay to the complainant by the period aforesaid an amount of Rs.200/- by way of compensation and a further sum of Rs. 200/- towards the costs of this proceeding.

The OP 2 is, however, given liberty to take back the original A/c Payee cheque bearing No. 833643 dt. 19.08.2010 drawn on HDFC Bank Ltd. and the purported Certificate of Satisfaction filed in the case on 7.1.11

That the OP 5 – SBI, Balurghat Branch would credit an amount of Rs.185/- in the concerned account of the complainant namely A/c No.:11273569279 by way of rectification of the entry dt. 13.4.09 as to the deduction of amount of Rs. 185/- and to pay to the complainant a sum of Rs.50/- towards the costs of this proceeding within a period of 30 days from the service of copy of this order upon it.

Let plain copies of this order be furnished to the parties forthwith free of cost.

Dictated & corrected

(B. Niyogi)

President

We concur

(Swapna Saha)

Member

(S.K. Ghosh)

Member