M/s.New India Electronics through its Prop.S.Baljeet Singh, Near Chowk Goal Hatti, Hall Bazar, Amritsar.

Complainant

Versus

Yes Bank Limited, through its Chairman/ Managing Director/ Principle Officer having its Branch Office at Hall Bazar, Amritsar through its Branch Manager.

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 (as amended upto date).

Present: For the  Complainant: Sh.Deepinder Singh, Advocate      

              For the Opposite Party: Sh.Amit Kapoor, Advocate                            

Coram

Sh.Anoop Sharma, Presiding Member

Ms.Rachna Arora, Member.   

Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       The complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant is having account No.046585800000033 with Opposite Party  and hired the services of the Opposite Party  for valuable consideration and the complainant is running a small shop without employing any permanent employ for earning his livelihood by means of self employment, the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant is running the said account regularly with the Opposite Party  and the Opposite Party  on 24.05.2017 debited the said account of the complainant with Rs.8600/- without  any intimation and assigning any reason. Said debit entry was witnessed by the complainant when he went to withdraw some amount from his account and was shocked to found inappropriate balance in his said account and on scrutiny it transpired that said amount of Rs.8600/- was debited in his account on 24.5.2017. The complainant sought the explanation from the Opposite Party  for the debit of the said amount of Rs.8600/- in his account without any intimation, but the Opposite Party  did not give any reason for the said arbitrary act. The complainant time and again approached the Opposite Party  for the demand of the said amount of Rs.8600/- but the Opposite Party  is putting off the mater on one pretext or the other.  The aforesaid acts of the Opposite Party  in not debiting the amount to the complainant without any reason is an act of deficiency in services, mal practices, Unfair Trade Practice and has caused lot of mental tension and harassment  besides financial loss to the complainant for which the Opposite Party  is liable to pay compensation of Rs.50000/- to the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party  be directed to pay the amount of Rs.8600/- toi the complainant alongwith interest accrued thereon till date.

b)      Opposite Party  be directed to pay the compensation of Rs.50,000/- to the complainant.

c)       Opposite Party  be directed to pay the adequate cost of the litigation.

Hence, this complaint.

2.       Upon notice, Opposite Party  appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  the complainant is not a consumer within the meaning of the definition of the Consumer Protection Act, since it is admittedly availing the services of the Opposite Party  for commercial purposes. On merits, it is asserted that the complainant has concealed the facts from this Forum that the complainant had availed the point of Sale Swipe machine services from the Opposite Party. For availing such services, the complainant has applied and completed the necessary formalities including filing and executing merchant application and agreement form alongwith a tripartite agreement between the complainant, Opposite Party  and world line India Private Limited i.e. any entity which facilitate online and card related payment and settlement services. In terms of clauses 5.9.1, 5.9.2 and 6.11 of the said agreement, Opposite Party  is interalia entitled to deduct amount from the account of the complainant interalia if the card hold disputes the nature of the services rendered. It is pertinent to mention that Opposite Party  bank received a chargeback request from the card holder who is customer of the United Bank of India requesting the return of the amount of Rs.8600/- alleging services were not rendered. Upon receipt of such allegations, Opposite Party  promptly sought clarification from the complainant, even though not required under the contractual terms, against the allegations levelled. However, despite repeated requests complainant failed to respond or give clarifications against the quarries of the Opposite Party . As such, in the absence of any clarification/ justification from the complainant, the Opposite Party  was constrained to debit the amount from the account of the complainant in order to ensure the interest of all the stake holders. It is however, submitted that the process of charge back is not yet completed and card holder/ card holder’s bank has time till around August, 20, 2017 to substantiate its claim further basis which the amount shall be credited in to the account of the card holder. If however, no such substantiation is provided, the amount shall be returned to the account of the complainant and hence, it is denied that the act of the Opposite Party  is deficiency and the Opposite Party  is not liable to pay any compensation as alleged. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C3  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the  copies of documents Ex.OP1 to Ex.OP4 and closed the evidence on behalf of the Opposite Party without tendering any supporting affidavit on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and contended that the complainant is having account No.046585800000033 with Opposite Party  and hired the services of the Opposite Party  for valuable consideration and the complainant is running a small shop without employing any permanent employ for earning his livelihood by means of self employment, the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant is running the said account regularly with the Opposite Party  and the Opposite Party  on 24.05.2017 debited the said account of the complainant with Rs.8600/- without  any intimation and assigning any reason. Said debit entry was witnessed by the complainant when he went to withdraw some amount from his account and was shocked to found inappropriate balance in his said account and on scrutiny it transpired that said amount of Rs.8600/- was debited in his account on 24.5.2017. The complainant sought the explanation from the Opposite Party  for the debit of the said amount of Rs.8600/- in his account without any intimation, but the Opposite Party  did not give any reason for the said arbitrary act. The complainant time and again approached the Opposite Party  for the demand of the said amount of Rs.8600/- but the Opposite Party  is putting off the mater on one pretext or the other.  The aforesaid acts of the Opposite Party  in not debiting the amount to the complainant without any reason is an act of deficiency in services, mal practices, Unfair Trade Practice and has caused lot of mental tension and harassment  besides financial loss to the complainant for which the Opposite Party  is liable to pay compensation of Rs.50000/- to the complainant.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant has concealed the facts from this Forum that the complainant had availed the point of Sale Swipe machine services from the Opposite Party. For availing such services, the complainant has applied and completed the necessary formalities including filing and executing merchant application and agreement form alongwith a tripartite agreement between the complainant, Opposite Party  and world line India Private Limited i.e. any entity which facilitate online and card related payment and settlement services. In terms of clauses 5.9.1, 5.9.2 and 6.11 of the said agreement, Opposite Party  is interalia entitled to deduct amount from the account of the complainant interalia if the card hold disputes the nature of the services rendered. It is pertinent to mention that Opposite Party  bank received a chargeback request from the card holder who is customer of the United Bank of India requesting the return of the amount of Rs.8600/- alleging services were not rendered. Upon receipt of such allegations, Opposite Party  promptly sought clarification from the complainant, even though not required under the contractual terms, against the allegations levelled. However, despite repeated requests complainant failed to respond or give clarifications against the quarries of the Opposite Party. As such, in the absence of any clarification/ justification from the complainant, the Opposite Party  was constrained to debit the amount from the account of the complainant in order to ensure the interest of all the stake holders. It is however, submitted that the process of charge back is not yet completed and card holder/ card holder’s bank has time till around August, 20, 2017 to substantiate its claim further basis which the amount shall be credited in to the account of the card holder. If however, no such substantiation is provided, the amount shall be returned to the account of the complainant and hence, it is denied that the act of the Opposite Party  is deficiency and the Opposite Party  is not liable to pay any compensation as alleged. But however, to support the aforesaid averments and documents, the Opposite Party  has not tendered any supportive affidavit of their officer and in the absence of any duly sworn affidavit of some responsible officer of the Opposite Party  bank, the averments and documents so produced by the Opposite Party  can not be admitted as gospel truth. In this way, the evidence produced by the complainant alongwith duly sworn affidavit of the complainant Ex.C1 is to be admitted as true in the absence of any rebuttal in the shape of affidavit of the Opposite Party who have failed to produce the same to support its defence.   It has been held by the Hon'ble State Commission of Punjab in case  Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that where no supporting affidavit is filed by the tenderer of the documents, these documents could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no affidavit has been produced in support of allegation, the documents so produced not to be treated as evidence of the tenderer of those documents.

8.       Moreover, an advocate appearing on behalf of the parties cannot assume and put himself in the witness box on behalf of parties for filing an affidavit in evidence or bringing on record an important piece of evidence. The documents have been tendered in evidence without any supporting affidavit of any officer of the Opposite Party  and thus the documents brought on the record, as referred to herein above by ld.counsel for the Opposite Party   cannot be read in evidence per se as it has been held by the Hon'ble State Commission in “Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others, 2009 (V) RCR Kumar Ganguly versus Dr. Sukumar Mukherjee and others, 2009 (V) RCR Criminal page 1, wherein the Hon'ble Supreme Court, while interpreting Order 13 Rule 4 and 7 documents marked as Exhibited-whether such document is admissible, pleased to held that:

“ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility therefore at later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross examination in a court of law.”

9.       Keeping in view the facts and circumstances of the case and loss occasioned by the complainant on account of deficiency in service on the part of the Opposite Party, we direct the Opposite Party  to make the payment of Rs.8600/- to the complainant alongwith interest @ 6% per annum from the date of its debit to the account of the complainant till its payment. Opposite Party  is also directed to pay Rs.2000/- to the complainant on account of litigation.   Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum