FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that after using the credit card for a long period, the complainant got a call from the respondent company’s credit card department a few months ago and during the call the complainant was asked many questions and stated many offers so hurriedly that it was impossible for the complainant to hear them separately and answer as per the complainant’s convenience and after the call, suddenly one new and upgraded credit card from the respondent company’s credit card department came to the complainant’s address and the complainant’s innocent self accepted the card vide no.411146******58603 and sometime after getting the card, the complainant come to know that this upgraded credit card costs Rs.3000/- + GST as joining charge and annual fee of Rs.3000/- + GST which was unknown and untold to the complainant and after knowing the matter, the complainant contacted the grievance redressal cell via NCH portal vide Grievance number-3480631 dt.11/05/2022. In reply on 12.5.2022, the customer service manager (Regulatory Escalations Desk) of the respondent company, intimated the complainant that the caller of the respondent company, in the above referred call, informed the complainant about the upgraded credit card features and benefits including Rs.3000/- + GST as joining charge and annual fee of Rs.3000/- + GST which is completely untrue and again on 23.05.2022 the complainant received an email from the customer service Manager (Regulatory Escalations Desk) of the respondent company informing the complainant the same fictitious reply and also they asked the complainant to clear the complainant’s dues and inspite of several requests by emails, the respondent company’s credit card authority did not take proper and justified steps against the complainant’s complainant and whenever the complainant asked them regarding the matter and take the necessary steps to withdraw this upgraded credit card, the complainant do not get any positive reply from them and lastly on 10.6.2022 the complainant humbly requested to the regional customer grievance redressal authority of the respondent company to kindly do the needful and ask the respondent company about the reason for the complainant’s harassment but he gets no positive reply from the end of respondent company till date.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 50,000/- for unfair trade practice and to pay a sum of Rs 50,000/- for mental agony and to pay a sum of Rs.25,000/- for deficiency in service.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant is to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by party.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties have not entered their appearance in this case and have not filed written version and also have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. In this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and so there is proper cause of action. On close examination of the material of case record it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Bank Authority to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the documentary evidence filed by the complainant it appears that the complainant has proved his case for filing cogent oral and documentary evidence and as the op has not filed any evidence on affidavit and documents, the oral and documentary evidence given by the complainant has been remaining in unchallenged condition. After perusal of the material of the case record this District Commission is of the view that there is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant. Thus, it is crystal clear that the complainant has also proved his case in respect of points of consideration nos. 4 and 5. The complainant has also established that the op has committed unfair trade practice and deficiency of service on his part and so the complainant is entitled to get relief which he has prayed in this case.
In the result it is accordingly
ordered
that the complaint case being no. 143 of 2022 be and the same is decided/ decreed ex parte against the op.
It is held that the complainant is entitled to get compensation of Rs. 20,000/- for unfair trade practice and deficiency of service on the part of the op. It is also held that the complainant is also entitled to get Rs. 5000/- as litigation cost.
Opposite party is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
