IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                     Wednesday the 29^th    day of September, 2021

                               Filed on 25.06.2021

Present

1. Sri.S.Santhosh Kumar.BSc. LLB(President)

2. Smt. C.K.Lekhamma. BA.LLB(Member)        

                                                  In

                                      CC/No.112/2021

                                                     Between

Complainant:-                                                       Opposite parties:-

1.    Adv.Sri. C.H.Chandrabhanu                      1.       Mr. Byju Raveendran

Chettichuparambil                                                         4/1,2^nd Floor, Tower D1BC

C.M.C 26, Cherthala.P.O                                              Knowledge Park 

Alappuzha                                                            Bannerghatta main road                                                        

                                                                              Opp. Fire Station, Banglore                                                   Karnataka-560027

2.    Sri. Aravind Chandrabhanu                        2.      M/s Think and learn Pvt. Ltd

S/o C.H.Chandrabhanu                                         4/1,2^nd Floor, Tower D1BC,

  = do=    =do=                                                      Knowledge Park 

(Adv. Sri. Anish madhu)                                       Bannerghatta main road

                                                                             Opp. Fire Station, Banglore

                                                                                 Karnataka-560027

                                                                    3.      Byjus Support Team

                                                                                      =do=   =do=

                                                                              (Ops. 1 to 3 Exparte)

                                                                    4.      The Vishakapattanam

                                                                              Co Operative Bank Ltd,

                                                                              47-3-27/3, 5^th Lane

                                                                              Dwarakanagar, Visakhapattanam

                                                                              Andra Pradesh-530016.        

                                                                              (Exparte)

O R D E R

SMT. C.K.LEKHAMMA(MEMBER)

        The facts of complainant’s case are as follows:-

 Complainants are father and son respectively.  The 1^st opposite party developed a learning application by name Byjus The learning  App. He is marketing the said application through the 2^nd opposite party, a company registered by him under the Companies Act and is doing its operations by using a team under the name and style Byjus Support team with separate mail id rd opposite party is the team under parties 1 and 2.  The 4^th party is their bank.

2.      In the week of November 2020, the local business executive of the opposite parties 1 to 3 met the complainants at their residence, explained about the use and application of Byjus Learning App, invited to join and purchase the product. During that period the 2^nd complainant was studying in 12^th standard under the CBSE and was a minor.  The 1^st complainant by advancing Rs.5000/- (Rupees Five thousand only) in cash through the local business executive proposed to purchase the said learning product.  The total cost of the product and application service claimed is Rs. 50,000/-(Rupees Fifty thousand only) and the balance Rs.45,000/- (Rupees Forty five thousand only) can be remitted in 12 EMI’s of Rs. 3750/-(Three thousand seven hundred and fifty only) each per month and the same can be drawn from the saving bank account  of the 1^st complainant at Indian Bank. Cherthala branch bearing account No.391033039.  Accordingly ,the 1^st complainant executed an EMI deduction mandate loan agreement authorizing the 2^nd opposite party  to deduct the EMI amount from his aforementioned bank account.  On 23/11/2020 complainant received the product in the  form of a tablet through bluedart courier service and  a copy of the way bill sent to them through mail. 

3.      As per clause 17,18and 19  of the terms and conditions a student/parent may apply for a refund within 15 days from the date of delivery of the product and the request shall be made through email  and from 16^th day onwards they will not be eligible for a refund.  The opposite parties 1 to 3 and their subordinate employee also made the complainants believe that if they are dissatisfied with the product and service the complainants have every right to opt for its cancellation by simply giving a request to that effect within the prescribed time limit.  From the very inception the 2^nd complainant experienced his inability to follows the methodology and the same was communicated to the mentors provided for students support then and there.  Accordingly, the 1^st complainant gave his request for cancellation and refund through email to them on 30/11/2020 ie, within 7 days of receipt of delivery of the product.  Thereafter the 2^nd complainant neither tried to experiment the product nor used the service of the application for his studies and the same was communicated to the mentors provided for students support as well.  So, the opposite parties 1 to 3 are bound to refund the initial deposit of Rs.5000/-(Rupees Five thousand only) take back the product and the complainants are entitled to the refund.  Admitting and acknowledging its receipt, they send a reply email on 1/12/2020 saying that they have taken note of complainant’s request and will do the needful but no further action was taken.  Instead under the pretext from the finance department of Byjus, several persons were repeatedly calling them separately over phone demanding EMI with threat of tarnishing their reputation in the bank.  So 1^st complainant contacted senior officials of the opposite parties 1 to 3 who promised to do the needful and on 7/12/2020 by email assured that to do the needful urgently.  But nothing happened in that regard and instead the so-called finance teams were continuing the same harassment. Hence complainant sent an email to Byjus team stating in detail all the harassments and their intention to take legal action on 14/12/2020.  A reply was issued to the same on that day itself.  But the said finance team was continuing their aforesaid illegal acts and harassments. Finally, the 1^st complainant was forced to send a legal notice on 16/12/2020 to the 1st opposite party by registered post.   Though the 1^st opposite party received the notice, he neither complied to the notice nor responded.  Instead, the finance team repeatedly continued the same illegal acts for some days and also messages were sent to complainant’s mobile phones to arrange funds for EMI.

4.      The complainants have already exercised their option for cancellation and refund of the advance, opposite parties’ option for cancellation and refund of the advance opposite parties have not withdrawn EMI on 7/12/2020 and 07/1/2021.  But the 1^st complainant came to notice that not only they failed to refund the initial deposit amount of Rs.5000/- (Rupees Five thousand only) but they deceitfully and fraudulently withdrew Rs.3750/- from the 1^st complainant and said SB account in Indian Bank on 7/2/2021, 8/3/2021, 7/4/2021 and 7/5/2021 totaling an amount of Rs.15,000/-(Rupees Fifteen thousand only)

6.      The 1^st complainant immediately send notice to the opposite parties to stop withdrawal of further amounts from the account and to refund forthwith the total amount Rs.20,000/- misappropriated by them. 4^th opposite party send a reply mail on 3/6/2021 seeking  the details of the 1^st complainant’s bank account and accordingly sent the details on 3/6/2021.  Even then they neither complied demands in notice nor stopped withdrawal of amount and the 4^th opposite party attempted to withdraw money from the account on 07/6/2021 but couldn’t avail due to complainants’ timely action to prevent the same by not providing adequate funds in the account.

7.      Complainants especially the 1^st complainant has not good reputation in the society and every circle including banks.  Due to the malafide acts of the opposite parties in branding him a defaulter by inflicting penal charges and negative credit score lowered his reputation resulting in severe mental pain and agony to him.  Now he will be forced to close his aforesaid account in the bank which will also cause great hardships to him.  The 2^nd complainant also suffered a lot of pain, sufferings and mental agony due to the harassments from the side of opposite parties, Furthermore, the said acts done are unfair, amounting to unfair trade practice, deficiency in service etc committed against the complainants as the consumers of the opposite parties and they are liable for the reliefs provided in the Consumer Protection Act, 2019.  Hence the complainants approached this Commission for following reliefs.

1. To direct the opposite party to pay/refund Rs.20,000/- with 9% interest from the respective dates of its receipts and take back the tablet, to pay Rs.4,00,000/- (Rupees Four lakhs only) towards compensation in the form of punitive damages to the 1^st complainant and cost of the proceedings.

2.      To direct the opposite parties to discontinue the unfair trade practices and not to repeat them.

8.      In view of the above points raised  for consideration are that:-

1. Whether the complainant is entitled to get refund Rs.20,000/- from the opposite parties?

2. Whether complainant  is entitled to get compensation for mental agony  and deficiency of service from the  opposite parties?

3.  Reliefs and cost?

9. The 1^st complainant filed proof affidavit and Exts A1 to A25 were marked.  Opposite  parties remained absent and declared them exparte.

10.    Points No.1 and 2:-

          The 1^st complainant advanced Rs.5000/- to purchase the  Plustwo study learning product, developed by the 1^st opposite party, for his  son, the 2^nd complainant.  He agreed to remit the balance amount Rs.45,000/- (Rupees fortyfive thousand only) by way of  12 EMI’s of Rs.3750/- each per month and the same can be drawn from the SB account  of the 1^st complainant at Indian bank, Cherthala branch bearing Account No.931033039 and executed an EMI deduction mandate loan  agreement authorized 2^nd opposite party to deduct the said amount.  Accordingly received a tablet on 23/11/2020 from opposite parties 1 to 3.  But the 2^nd complainant could not follow their methodology and 1^st complainant decided for cancellation and informed the  opposite parties 1 to 3 through e-mail on 30/11/2020, ie,  within 7 days of receipt of delivery of the product. Ext.A1 to A4 are the evidence of said transactions.  As per the terms and conditions between them student/ parent may apply for refund within 15 days from the date of delivery of the product and request shall be made through e-mail.  So the opposite parties 1 to 3 are bound to refund the initial deposit of Rs.5000/- to the complainant and take back the tablet.   Instead of that several persons under 1^st opposite party repeatedly called over phone and demanded EMI on several occasions by various ways.  The complainants against which made by the 1^st complainant and the reply by the officials of 1^st opposite party are Ext.A5 to A7 e-mail communications.  As per it they expressed  their unconditional apology for the inconvenience  caused to complainants and assured to solve the issue at the earliest.  But the finance team of 1^st opposite party continued their harassment and the complainant constrained to issue registered Ext.A14 legal notice with A/D  to the 1^st opposite party.  But later 1^st complainant came to know that Opposite parties 1 to 3 fraudulently  withdrew Rs.3750/- from his account  on 7/2/2021, 8/3/2021, 7/4/2021 and 7/5/2021 totaling an amount of Rs.15,000/-. The said withdrawal reflected in Ext.A25 Account statement.  Immediately sent Exts. A8 & A9 notices through e-mail to opposite parties 1,3 and 4 to stop the withdrawal of further amount.  The communication between the complainant and the 4^th opposite party are Ext.10 and A11.  Thereafter the 1^st complainant has given Ext.A12 written instruction to his bank not to honor the demands of opposite parties.  Ext.A13 is the screen shot of text messages by the opposite parties to the complainant demanding EMI dues.  Even after filing this complaint opposite parties were continuously sending SMS from Ten ID under TM,TX,BT,BP,BH,AX,AD,BK,BX and BG.  Exts. A15 to A24 are the evidence of said aspect.   Since the 1^st complainant has filed a memo along with certified copy of e-mail and attachment sent by 4^th opposite party  stating that their name  is falsely included in the ECS mandate and the bank does not maintain any account in the name of 2^nd opposite party.  In the chief affidavit also mentioned about that,   hence we are proceeding against opposite parties 1 to 3 only.  It appears that opposite parties remained absent evenafter the receipt of notice from this Commission.  The above evidences by the complainant remained unchallenged.  Opposite parties have given sufficient opportunities to substantiate their part with cogent evidence.  But they failed to do so.  Hence we have no hesitation to hold that the case of the complaint is believable.

11.    On perusal of the evidence on records we found that eventhough the 1^st complainant duly informed about the cancelation of the proposal with 1^st opposite party before the stipulated period of 15 days itself yet opposite parties 1 to 3 deducted four instalments from his account and still continuing harassment through various ways forcing the complainant to remit remaining amount.  The above acts of opposite parties amounts to deficiency of service by which complainants sustained mental agony.  Therefore, opposite parties has to compensate the complainants.  The compensation is fixed at Rs.10,000/- (Rupees Ten thousand only). We have already discussed above that the opposite parties 1 to 3 have received Rs. 20,000/- (Rupees Twenty thousand only) in various occasions from the 1^st complainant, so complainants are entitled to realize said amount with interest from the opposite parties 1 to 3.  The complainants are also entitled to get litigation cost of Rs.2000/- from these opposite parties since they pushed the complainants in to an unnecessary litigation.

12.     Point No.3:-

          In the result, we allow the complaint in part and direct that:-

1. Opposite parties 1 to 3 are jointly and severally liable to refund Rs.20,000/-(Rupees twenty thousand only) with interest @ 9% per annum from the date of the complaint till realization, to the complainants.

2.  Opposite parties 1 to 3 are jointly and severally liable to pay Rs.10,000/- (Rupees Ten thousand only) as compensation for deficiency of service and mental agony and also liable to pay Rs.2000/- towards litigation cost, to the complainant.

          The above order shall be complied within one month from the date of  the receipt of this order.

        Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the   29^th       day of September, 2021. 

                                            Sd/-Smt. C.K.Lekhamma(Member)

                                           Sd/-Sri.S.Santhosh Kumar(President)

Appendix:-Evidence of the complainant:-

Ext.A1 to A4      -        Evidence of said transactions.

Ext.A5                -        e-mail Communications

Ext.A8 & A9      -        Notices through email to Ops 

Ext.A10&11       -        communication between comp &4thOP             

Ext.A12              -        Written instruction from Comp. to bank   

Ext.A13              -        Screen shots of text messages

Ext.14                 -        Legal notices with AD card.

Ext.A15 to 24     -        Evidence

Ext.A25              -        Bank account statements.

Evidence of the opposite parties:- Nil

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Senior Superintendent

Typed by:- Br/-

Compared by:-