Brief fact of this case:- This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant purchased a policy from the opposite party no. 3 and on maturity the complainant get a cheque of HDFC bank amounting to Rs. 88317/- vide cheque no. 000115237 dt. 24.9.2015 and the same was deposited to her banker i.e. opposite party no. 1 on 13.10.2015 on a drop box to her joint account vide account no. 31854191026 and the bank never informed the complainant regarding the aforesaid cheque and the complainant updated her bank account and she certainly found that the aforesaid cheque was dishonored on 12.11.2015 and for that the opposite party no. 1 debited Rs. 150/- as collection return charge and then the complainant informed the matter to the opposite party no. 1 on 22.12.2015 but the opposite party no. 1 did not pay any heed to her request.
On 1.1.2016 the opposite party no. 1 informed the complainant that “certificate that Rejina Khatun bearing her account no. 31854191026 has deposited a cheque no. 115237 dt. 24.9.2015 of Rs. 88137/- which was issued by Reliance Life Insurance of HDFC Bank. We had sent that cheque through collection to our Chinsurah Branch, but the said cheque was dishonored on 13.10.2015 by our Chinsurah Branch. That cheque may be lost in transit by the post/ courier service. We, therefore, request you to re-issue another cheque against that amount”.
After receiving the aforesaid letter from opposite party no. 1 the complainant went to the nearest office of opposite party no. 3 and they took proper steps for that and on 26.08.2016 the opposite party no. 3 informed that the aforesaid cheque had been cleared on 15.11.2015 to the Chinsurah Branch i.e. opposite party no. 2 and the matter had been informed to the opposite party no. 1 but still today the opposite party nos. 1 and 2 did not gave the amount to the complainant along with uptodate interest.
Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay sum of Rs. 88,317/- and to pay a sum of Rs. 150/- which had been deducted on 12.11.2015 from her bank and to pay 12% compound interest and to pay a sum of Rs. 50,000/- for deficiency of service and to pay a sum of Rs. 30,000/- for harassment and mental agony and to give any other relief/ reliefs as deem fit and proper.
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 has 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. Argument as advanced by the agents of the complainant heard in full. The evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
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 even after appearance in this case and after filing written version, have not contested this case due to the reason best known to them. Under this position this District Commission has passed the order of ex parte hearing of this case. On this background it is also mentionworthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Namajgram, Pandua 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. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But 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 thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties 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 this provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
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 connected with the question as to whether there is any deficiency in service on the part of the opposite parties or not and the point no. 5 is related with the question whether the complainant is entitled to get any relief in this case or not? These two points 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 the above noted two points of consideration, there is necessity of making scrutiny of the evidence on affidavit filed by the complainant and there is also urgency to examine the documents which have been filed by the complainant. In this matter this District Commission after going through the evidence on affidavit filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and he has not left any stone unturned. Moreover, the evidence on affidavit filed by the complainant has not been challenged and/ or interrogated by the opposite parties by filing questionnaires or interrogatories. In other words it can be said that the evidence given by the complainant remains unchallenged and uncontroverted. There is nothing to disbelieve the unchallenged and uncontroverted evidence given by the complainant. In this regard it is also very important to mention that the opposite parties have not filed any evidence on affidavit in support of their case and/ or to disprove the case of the complainant side. This factor is also reflecting that the evidence given by the complainant has not been shakened in any way. The evidence given by the complainant goes to show that there is deficiency in service on the part of the opposite parties and the complainant is entitled to get the remedies which she has prayed in this case. Thus, the above noted two points of consideration are also decided in favour of the complainant side.
In the result it is accordingly,
Ordered
that this complaint case being no. 143 of 2017 be and the same is allowed ex parte against opposite party nos. 1 and 2 but in part.
It is held that the complainant is entitled to get the claim amount of Rs. 88,317/- from the opposite parties and the complainant is also entitled to get Rs. 25,000/- as compensation for harassment, mental agony and for deficiency in the service. The complainant is further entitled to get litigation cost of Rs. 5000/-.
So, the opposite party nos. 1 and 2 are directed to pay the said amount of Rs. 1,18,317/- to the complainant within 2 months from the date of this final order. Otherwise the complainant is given liberty to execute this order as per law.
In the event of failure to comply with the order the opposite parties shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties or their ld. Advocates/Agents on record by hand under proper acknowledgement or sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
