By. Sri. Jose. V. Thannikode, President:-
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to refund the amount collected illegally and to pay cost and compensation due to his unfair trade practice.
2. Brief of the complaint:- The complainant was the NND agent of opposite party and he has resigned from the opposite party institution on 26.09.2016 and all the dealing was closed on 24.10.2016. On 03.04.2017 when the complainant gone through the statement of account of the complainant Saving Bank Account No.40236100100070 it is noted that the opposite party has illegally charged Rs.815/- as notice charge and Rs.4,095/- as paper publication charges. So the complainant approached the opposite party and requested to refund the amount but the opposite party has not refunded the amount and not ready to hear the matter also. The complainant further stated that the above act of the opposite party is a clear case of deficiency of service and unfair trade practice from the side of opposite party and prayed before the Forum to direct the opposite party to refund the amount with interest, cost and compensation.
3. Notice were served to opposite party and opposite party appeared before the Forum and filed version stating that the complainant is not a consumer entitled to get any relief of any kind under the consumer protection Act. The relationship between the complainant and the opposite Party is well defined and specifically limited to the express terms of contract between them. A true copy of the agreement dated 28.8.1994 between complainant and this opp Party is produced herewith. The complainant is legally bound by the terms contained there in which is really controlled by Section 211 of the contract Act 1872 which mandates as follows. An agent is bound to conduct the business of his principal according to the direction given by the principal or in the absence of any such directions according to the custom Which prevails in doing business of the some kind at the place where agent conducts such business. When the agent acts otherwise, if any loss be sustained he must make at good to his principal and of any profit accurse he must account for it. The complainant who had executed the agreement dated 28.8.94 after acting on it for 22 years is estopped from contending, otherwise and clause 14 of the said agreement is explicitly clear as to the legal duty of the complainant towards this opposite Party which is reiterated herein below. The agency created under these presents may be terminated at the option of the agent by giving thirty days notice in wring to the bank subject however to the other terms and conditions of these presents and in such an event the agent shall introduce to the persons nominated by the Bank all the depositors from whom he was effecting collections and the agent shall not be entitled to claim any remuneration or allowance or for any benefits. Clause 19 of the said agreement is clear as to the legal liability of the agent in case of omission to reform the aforesaid duty in accordance with the following provision which reproduced below. The agent ie complaint is liable to pay all costs incurred in this regard. " If in the opinion of the Bank resignation In consideration of the Bank allowing the agent to authorize any competent person as referred to herein above the agent and the surety/sureties jointly and severally hereby agree at all times hereafter to save, defend and keep the bank harmless and indemnified of and from all manner of actions suits and demand whatsoever and of and from all damages costs and charges, costs and charges costs and charges, whatsoever which the Bank may suffer sustain bear or be put to by reason of or by means of or that may arise or in relation to any or all acts of commission and or/ omission on the part of the person so authorized by the agent. If in the opinion of the bank the agent or other authorized person is not performing to the satisfaction of the bank any of the duties or acts in relation to the work for which the agent or an authorized person is appointed or engaged to do or cause to be done as per terms and conditions of the Agreement herein, the Bank shall be entitled at its absolute discretion to make any alternate arrangements suiting to the needs or exigencies of time and in such cases the agent and the surety/sureties jointly and severally shall be responsible for all costs and expenses or charges that may accure to the Bank or damage or loss that the Bank may suffer by reason of any lapses or breach on the part of the agent and! on his authorized person. Clause 19 of the agreement indemnified these opposite party against all losses and expenses in this regard. Clause 20 of the said agreement creates over the property mentioned in schedule The complainant voluntary submitted his resignation. The Opposite Party has served a prompt and proper reply to the illegal demand of complainant in spite of having received the details of the subject matter, the complainant has filed this false and frivolous petition for compensation and other reliefs by suppression of materials facts narrated above. Since the complainant is not legally entitled to prefer a complaint under the provisions consumer protection Act his complaint may be dismissed with costs on the points referred above. The complaint failed to observe his duties after termination of agency and he has no case that he observed the same. The very statement that on 24.10.2016 itself all transactions were completed is an impossible act so far as third parties who are account holders are concerned. Such a statement itself exposes the falsity of the statement itself of the statement of complainant which lacks bonafide. The complaint whose duty as N.N D agent was terminated on his voluntary resignation and he was reminded of the duties left after registration. The levy of expenses and charges for communication are due to wilful omission on the part of the complainant and the same fully legal and supported by contact between complaint and this opp. Party . The breach of contract omitted by the complainant cannot be made a basis to claim compensation from this Opposite party which suffered loss on the same court. Hence complaint may be dismissed with compensatory costs.
4. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 document is marked subject to proof. Opposite party also filed proof affidavit and he is examined OPW1 and Ext.B1 document is marked. Ext.A1 is the Account statement of the complainant issued by the opposite party dated 03.04.2017, wherein Rs.815/- is charge for notice and Rs.4,095/- is charged for paper publication. Ext.B1 is the Agreement between the complainant and opposite party dated 28.06.1994 regarding the terms and conditions of the agent.
5. On considering the complaint, version, evidence and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
6. Point No.1:- The allegation in the complaint is that the opposite party charged Rs.815/- and Rs.4,095/- illegally. The Ext.B1 Agreement is the Sole agreement executed between the complainant and opposite party regarding the terms and conditions of the work, duty and responsible of the agreement. The OPW1 deposed before the Forum that ''the alleged amount is charged by the opposite party and also deposed that there is no contract between the complainant and opposite party other than Ext.B1 and in Ext.B1 no where it is stated that after resignation of the NND agent paper publication is required''.
7. Hence we are of the opinion that without a specific clause and condition in Ext.B1 the opposite party cannot impose charges on the complaint. Hence we found that without a specific clause in the Ext.B1 Agreement charges, notice charge and paper publication charge is a clear case of deficiency of service and unfair trade practice from the side of opposite party. Hence the Point No.1 is found accordingly.
8. Point No.2:- Since the Point No.1 is found against the opposite party, opposite party is liable to refund the charges illegally collected from the complainant and also liable to pay cost and compensation. Hence the Point No.2 is found accordingly.
In the result, the complaint is partly allowed and the opposite party is directed to refund Rs.4,910/- (Rupees Four Thousand Nine Hundred and Ten) (815+4095) with 12% interest from the date of complaint and also directed to pay Rs.2,000/- (Rupees Two Thousand) as compensation and Rs.1,000/- (Rupees One Thousand) as cost of the proceedings to the complainant within one month from the date of receipt of this Order. Failing which the complainant is entitled for an interest at the rate of 15% per annum for the whole amount till realization.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 8th day of March 2018.
Date of Filing: 09.10.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
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PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Chandran. No Job.
Witness for the Opposite Party:-
OPW1. Elias. K. I. Senior Manager, Kerala Gramin Bank, Sulthan Bathery
Branch.
Exhibits for the complainant:
A1. Statement of Account. Dt:.03.04.2017.
Exhibits for the opposite party:-
B1. Agreement. Dt:28.06.1994.
Sd/-
PRESIDENT, CDRF, WAYANAD.
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