Ld. Advocate(s)
For Complainant: Mridula Roy
For OP/OPs : Raj Kumar Mandal
Date of filing of the case :19.03.2021
Date of Disposal of the case :14.12.2023
Final Order / Judgment dtd.14.12.2023
The concise fact of the case of the complainant is that the complainant Dalil Mondal is a self employed person who runs his business of
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Electronic goods. The complainant hired one swipe machine (POS Machine) for his shop on 04.06.2017. The OP No.2 Branch Manager United Bank of India, Bara Andulia, Nadia is his Banker. The complainant is a C.C account holder with OP No.2 banker having account no.0701250032531 wherefrom the rental charge and other charges for the said machine have been deducted by the OP No.1. The OP No.3 M.D & CEO, UBI, Kolkata. Head office of the said bank. Subsequently the OP Bank has merged with the Punjab National Bank. The complainant subsequently decided to return the said machine and as such communicated to the OP No.1 in response to which the OP NO.1 sent a direction to uninstall . Accordingly, the entire set was taken back by OP No.1 on 04.07.2020. In spite of taking back the said machine the OP No.1 has been deducting the low cost charge from the bank account of the complainant. The complainant intimated the same to the Branch Manager of the concerned bank on 28.10.2020 with prayer to take steps to stop such deduction. But till now OP No.1 has been deducting low cost charge. Complainant informed it to the OP bank but to no effect so such inaction of the OPs has caused harassment to the complainant which amounts to deficiency in service. So the present case is filed. The complainant therefore, prayed for an award to direct the OPs to credit the amount deducted towards low cost charge after 04.07.2020, Rs.1,000/- towards compensation and Rs.1,000/- towards litigation cost.
OP No.1 contested the case by filing Written Version wherein they denied the major allegations. The positive defence case of the OP No.1 in brief is that the OP No.1 is a company engaged in the business of providing Software and Information Technology Solution and retailers and other ancillary services in retail automation. On the request of the complainant the OP No.1 issued purchase order and agreement dated June, 2019. The said purchase order and agreement contain various terms including the payment to be made by the complainant. The complainant duly accepted the said terms and conditions. The complainant availed one POS Machine and services from the OP No.1. The POS machine was installed on 11.06.2019 and the last transaction was done on 26.09.2019. The OP No.1 raised invoices to the complainant which was duly received. The complainant was required to pay monthly rental including GST of Rs. 590/-. The OP No.1 received only payment on 28.05.2019 at the time of availing the services for Rs.3540/-. As per the record upto September, 2019 a sum of Rs.3343/- is payable by the complainant to the OP No.1. The said POS was de-installed on 04.07.2020. ACH mandate which was obtained from the complainant at the time of installation was rejected by the bank at the very initial stage and is negative. In view of the same the respondent has not debited any excess amount from the complainant. The complainant is venturing into speculative litigation. So the present false and fabulous complaint should be dismissed with cost.
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OP NO.2 &3 did not contest the case. As per order no.9 dated 02.06.2022 despite receiving notices they did not turn up before the District Commission and no W/V was filed. So the case is decided to be heard ex-parte against OP No.2&3. The conflicting pleadings of the complainant and OP No.1 persuaded this Commission to set forth the following points for determination.
Points for Determination
Point No.1.
Whether the case is maintainable in its present form and prayer.
Point No.2.
Whether the complainant is entitled to get the relief as prayed for.
Point No.3.
To what other relief if any the complainant is entitled to get.
Decision with Reasons
Point No.1
The present point relates to question as to maintainability of the case. Except challenging the case that it is a speculative case and the complaints are false and frivolous the contesting OP No.1 could not make out any specific ground as to maintainability of this case. However, after perusing the pleadings of the parties and the evidence on the case record. The Commission comes to the findings that there is no negative legal aspect which makes the case not-maintainable. Both the pecuniary and territorial jurisdiction of this Commission for this case are well within the purview of the C.P. Act. The facts and circumstances of the case also lead to hold that the complainant is the consumer under the C.P. Act. Accordingly point no. 1 is decided in favour of the complainant.
Accordingly, Point No.1 is answered in favour of the complainant.
Point No.2&3.
Both the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
It is the admitted position that the complainant Dalil Mondal hired one POS Machine and availed services from the respondent no.1. The said POS machine was installed on 04.06.2017 after its initial hire. Subsequently it was returned back on 04.07.2020 on the ground that it did not come to the use of the
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complainant. The complainant informed it to the OP No.2 bank Manager PNB, Bara Andulia, Nadia vide Annexure-C.
It is the specific defence of contesting OP No.1 that the OP did not debit any excess amount from the account of the complainant and the complainant dishonestly filed this case for wrongful gain.
The best documentary evidence discloses that as per the agreement between the parties that parties will abide by different terms and conditions. As per clause 10 of the terms and conditions of the agreement “Merchant agrees to a minimum business commitment/lock in period of two years from the date of deployment of pine lab’s equipment.” Clause 12 also discloses that either of the parties can terminate the services by providing three months written notice.
Thus the agreement gives liability to the parties to terminate the services. In the instant case after the lock in period of two years the said disputed machine was de-installed. So, there is nothing in the case record that the complainant violated that terms and conditions of the agreement. The complainant returned back through technician of the OP No.1 the said machine on 04.07.2020 that is after more than two years of installation.
The OP No.1 took a defence plea that a sum of Rs.3343/- was payable by the complainant.
The OP could not prove any document that the said amount is outstanding from the complainant. On the contrary the complainant proved through Annexure-B being report on transaction from 04.07.2020 to 23.11.2020 that money was deducted from the complainant from 14.07.2020 till 18.11.2020. It is most important to consider that the said period also falls within the moratorium period due to Covid-19. The OP NO.2 &3 did not challenge the said fact of the deduction by the bank.
The OP No.1 could not justify the grounds for deducting money from the account of the complainant even after de-installation of the said disputed machine.
Ld. Defence Counsel for the OP No.1 argued that how court will assess as to how much amount was deducted or how much should be returned. The complainant could not specify the particular amount of claim against such alleged deduction. What bank deducted that is out of control of the OP No.1.
The argument has not sufficient force in as much as the document discloses that some amount of money was continuously deducted and it is supposed to be credited to the account of the OP NO.1. That apart the bank
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authority OP No.2 & 3 could not make out any defence cases against the alleged deduction after de-installation .
Ld. Advocate for the complainant argued that the amount which was deducted after de-installation should be refunded.
The document proved by the complainant being Annexure-B shows that a sum of Rs.4542/- has been deducted after de-installation. So the complainant is entitled to get back that amount with interest.
The OP thus acted in a manner which tantamounts to deficiency in service which caused harassment and mental pain and agony to the complainant.
In the backdrop of the aforesaid assessment of evidence and observation made hereinabove the Commission comes to the finding that the complainant proved the case against the OP upto the hilt .
Point No.2&3 are accordingly answered in favour of the complainant.
In the result the complaint case succeeds on contest with cost.
Hence,
It is
Ordered
that the complaint case No. CC/43/2021 be and the same is allowed on contest with cost of Rs.5,000/- (Rupees five thousand). The complainant do get an award for a sum of Rs.4542/- (Rupees four thousand five hundred forty two), Rs.5,000/- (Rupees five thousand) towards litigation cost and Rs.5,000/- (Rupees five thousand) towards compensation for harassment, mental pain and agony. All the OPs are jointly and severally liable to pay the compensation. OP No.1 is directed to pay a sum of Rs.14,542/-(Rupees fourteen thousand five hundred forty two) to the complainant within 30days from the date of passing final order failing which the entire award money shall carry an interest at the rate of 8% per annum from the date of final order till the date of its realisation.
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D.A to note in the trial register.
The case is accordingly disposed of.
Let a copy of this final order be supplied to both the parties at free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,) ................................................
PRESIDENT
(Shri HARADHAN MUKHOPADHYAY,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
