Date of Filing: 03/10/2013                                                   Date of Final Order: 09/07/2015

The brief facts of the case as can be gathered from the case record is that the Complainant, Pabitra Dam purchased six numbers of products booked policies from the O.P. No.1, The Torsa Marketing, Cooch Behar Branch through their Branch Manager, Debasish Das for the period of one year by depositing Rs.11,00,000/- with this assurance that they will render proper service towards the Complainant. After receiving the said amount the O.P. No.1 issued six numbers of Policy Certificate which are furnished below :

Thereafter the Complainant had received or got the monthly installment of Rs.8,80,000/- of the said six policies from the O.P. No.1. up to February, 2013 but after February 2013, the complainant did not receive or get any monthly installment of the said six policies of Rs.4,40,000/-. Then the Complainant informed the previously mentioned matter to the Coach Behar Branch Office of the O.P. No.1 and Head Office, of Torsa Marketing at Kolkata. The Complainant was informed by the O.Ps that, there was no cause to worry about the matter they were pay-off the said installment within the month of May 2013.

After maturity period of the said policies, the Complainant went to the office of the O.P. No.1, Torsa Marketing on several times for lucrative return of due monthly installment of Rs .4,40,000/- but all efforts were in vain.

From this, it is crystal clear that the O.Ps with ill motive they did not give the aforesaid amount to the Complainant. The O.Ps also adopted unfair trade practice and deficiency in service in the event for non-payment of the previously mentioned amount to the Complainant. Due to such activities and negligence on the part of the O.Ps the Complainant has suffered a lot from mental agony, pain and huge monetary loss and unnecessary harassment.

Hence, the Complainant filed the instant Case No. DF/118/2013 with enclosed relevant documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to pay (1) Rs.4,40,000/- as due monthly installment of the said six policies, (2) Rs.20,000/- as compensation for mental pain, agony and unnecessary harassment, (3) Rs.20,000/- for unfair trade practice and deficiency in service and (4) Rs.10,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.

The O.P. No.1, The Torsa Marketing, Cooch Behar Branch has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the complainant has no cause of action to bring this case and the case is not tenable in law. The main contention of the O.P. No.1 is that the O.Ps are not established financial organization. It deals in selling of various products such as Induction cooker, Energy Saver, Convention Oven, Breakfast Maker, Mineral Water Pot and other products and receives Installments against the total value of the particular product and after the date of expiry delivered the product, booked by the customer. The O.P. No.1 also stated that the Complainant is not a businessperson but an agent/member of Torsa Marketing being his code No. COBA-100572.

It is the case of the O.P. No.1, Debasish Das, Branch Manager of Torsa Marketing, Cooch Behar Branch that this answering O.P, was the Office-in-charge of Torsa Marketing by virtue of his Appointment Letter dated 02/04/2011 on monthly salary basis he was no way connected with selling of product booking policy nor he sold any policy to the Complainant, as such the Complainant is put to the strictest proof of the same. He also stated that he did not hold the status of a Branch Manager. He was an ordinary employee of Torsa Marketing on monthly salary basis. M/S Torsa Marketing is a partnership farm having their Principal Office at 379, Swami Vivekananda Road, Trikon Park, Barasat, North 24 Parganas, Pin-700124. This O.P was not the partner of this farm.

It is the further case of the O.P. No.1 that this O.P never received any amount from the Complainant at any point of time nor he issued any receipt of the same by putting his signature. The Complainant has implicated this O.P as he is a local person of Cooch Behar town. This O.P also stated that he did not give any assurance to the Complainant to render proper service.

It is also the case of the O.P. No.1 that this O.P has no knowledge about the actual amount of total deposits and total return amount received by the Complainant from Torsa Marketing. It is also not within the knowledge of this O.P that whether the Complainant has informed about the irregular installment to the Branch Office, Cooch Behar as well as the Head Office at Kolkata of Torsa Marketing or not.

Furthermore, on 01/05/2013 an F.I.R was lodged by one Bhanumati Sarkar against this O.P, Debasish Das along with other Directors of Torsa Marketing vide Kotwali P.S. Case No.277/13 dated 01/05/2013 u/s 420/406 I.P.C and on the basis of that F.I.R this O.P was arrested by the Kotwali Police on 01/05/2013 and remained in the judicial custody till 23/06/2013. Thereafter, on 25/06/2013 this O.P tendered his resignation to Torsa Marketing. Therefore, he has no knowledge regarding any activities of the Complainant with the Company after 01/05/2013. It is not also within the knowledge of this O.P that whether the Complainant went to the office of the company after the expiry of stipulated period or not. This O.P also stated by filing W/V that after being arrested by the Police on 01/05/2013 this O.P has no connection with Torsa Marketing. Prior to 01/05/2013 he was a mere employee of Torsa Marketing on monthly salary basis and he was not a partner of Torsa Marketing. Therefore, he has no authority to hold up any payment of a customer and he has no liabilities regarding any deposits or payments of any customer. If anything is suffered by the Complainant that was due to the activities of the O.P. No.2. After 01/05/2013 this O.P never worked as an employee of the Torsa Marketing. Payment of matured policy fully depends on the partners of the Torsa Marketing. The O.P. No.1 has been wrongly impleaded in the present case and as such this case suffers from mis-joinder of party and there was no unfair trade practice, deficiency in service or negligence of the O.P. No.1 towards the complainant.

Ultimately, the O.P. No.1 prayed for dismissal of the case without any costs.

In the light of the contention of the complainant, the following points necessarily came up for consideration.

POINTS  FOR  CONSIDERATION

1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Has the O.P any deficiency in service as alleged by the Complainant and is liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION WITH REASONS

We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.

Point No.1.

Evidently, the Complainant deposited some money to the Opposite Party Company in view to earn by depositing the same. The Opposite Party issued some receipt against those deposits. Thus, the relation between the Complainant and the O.P. so established from the record we are convinced to hold that the Complainant is a consumer U/S 2(1)(d)(ii) of the C.P. Act, 1986 under the O.Ps.

Point No.2.

Office of the O.P. No.2 is situated within Cooch Behar town and total valuation of the present case is Rs.4,95,000/- which is far less than maximum pecuniary limit of this Forum i.e. Rs.20,00,000/-.

So, this Forum has territorial as well as   pecuniary jurisdiction to try this case.

Point No.3 & 4.

It is the case of the Complainant, that the Complainant deposited a huge amount to the opposite Party Company in view to earn some money against the said deposit.

Annexure 1-    reveals that the Complainant deposited total Rs. 11,00,000/- to the Opposite party Company with a desire to get return of Rs. 13,20,000/-.

It is the case of the Opposite Party No. 1 that he is the mere employee of the Opposite Party Company and not related with the alleged deposit amount of the Complainant and he has no right to settle any claim of the depositors.

The O.P. No. 1 has filed some documents marked as Annexure A-E from which it transpires that Mr. Debashis Das, the Opposite Party No. 1 joined as Office In Charge at the Cooch Behar Office of the Opposite Party Company i. e. Torsa Marketing having it’s Head Office at Madhyamgram, Sodepur Road, Kolkata-29. Annexure “A” series filed by the Complainant reveals that the Complainant deposited certain amount to the Opposite Party Company at it’s branch office and there is seal and signature of the branch office of the said Company. The Complainant deposited Rs.250,000/- on 20.06.2012, Rs. 250,000/-on 23.06.2012, Rs.1,00,000/- on 26.06.2012, Rs. 2,00,000/- on 10.07.2012, Rs. 2,00,000/- on 31.07.2012 and Rs. 1,00,000/- on 31.08.2012 i. e. total Rs. 11,00000/- to the Opposite Party Company with a desire to return Rs. 13,20,000/- in monthly return basis. Evidently, the Complainant received Rs. 8,80,000/- from the Opposite Party up to February 2013 but there after he did not receive any amount.

The O.P. No.1 has taken plea that the Complainant expunging the name of the O.P. No.2 who is the principal in this case, for which this case is not maintainable against this O.P but the Consumer Case does not fail due to non-joinder of necessary party.

It is also the case of the O.P. No.1 that there is no signature of this O.P. No.1 in the Certificate/Money receipt issued from the branch office of the O.P Company and he has no liability.

In this juncture, it is pertinent to mention that the Complainant failed to give proper address of the O.P. No. 2 and ultimately prayed for expunging the name of the O.P. No. 2 and the Forum pleased to pass an order in favour of the Complainant and the O.P. No. 2 is expunged accordingly. Be that as it may, the Opposite Party No. 1 admitted in its W/V also in Evidence on Affidavit that he was working in the Torsa Marketing at its Cooch Behar branch being a Office in- Charge, documents also proves the same for which he cannot be exonerated. Moreover, when the Complainant failed to supply the proper address of the O.P. No. 2 then the O.P. No. 1 can supply the address of his principal or appeal for making party to shift his liability but he was indifferent in this matter. Moreover, the document filed by the O.P. No. 1 it appears that an F.I.R. was lodged against this O.P. No.1 and accordingly a case was started u/s 406/420 of IPC. against this O.P. No.1 also he was in Jail custody on and from 01.05.2013 to 25.06.2013   days It for which it is reasonably be presumed that this O.P. has nexus with the principal i.e. O.P. No. 2 and at the time of depositing the money by the Complainant in the branch office at Cooch Behar he was the Office in- Charge for which he cannot avoid his liability. It is crystal clear from the F.I.R that the O.P. No. 1 closely related with the Company and collected huge amount from the common people like the present Complainant Furthermore, this O.P failed to establish that he deposited all the money collected from the Complainant to the O.P. No. 2. Admittedly, the Complainant did not return the full amount as deposited to the Opposite Party Company, which tantamount to deficiency in service and unfair trade practice. As it is already proved that the O.P was closely related in collection of the money with the Torsa Marketing being the Office In- Charge for which he is liable to make payment to the Complainant but in part.

Thus, the case succeeds.     

ORDER

Hence, it is ordered that,

             The present Case No. DF/118/2013 be and the same is allowed on contest with cost of Rs.5,000/- against the O.P. No.1 but in part.

The O.P. No.1 is hereby directed to pay the Complainant Rs. 1,00,000/- only as the main liability is upon the head office and is jointly liable but we cannot pass any order against it as the said  name was expunged by the Complainant.             

The ordered amount shall pay to the Complainant within 45 days failure of which the O.P. No.1 shall pay Rs.50/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.

Let plain copy of this Final Order be supplied, free of cost, to the concerned  parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.

Dictated and corrected by me.

                 Member                                                                        President

   District Consumer Disputes                                         District Consumer Disputes   

Redressal Forum, Cooch Behar                                   Redressal Forum, Cooch Behar

                 Member                                                                         Member

   District Consumer Disputes                                         District Consumer Disputes

Redressal Forum, Cooch Behar                                   Redressal Forum, Cooch Behar