National Consumer Disputes Redressal
National Securities Depository Ltd. vs Shivaraj R. Nelivigi on 5 January, 2012
Petitioner herein was OP-1 and respondent no NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 2900 OF 2010 (From the Order dated 28.07.2010 in Appeal No. 3781/2009 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore) National Securities Depository Ltd. Petitioner Income Tax PAN Services Unit 1st Floor, Times Tower Kamala Mills Compound, Lower Parel Mumbai-400013 Through Mr. S.Ganesh, Sr. Vice President Versus 1. Sh. Shivaraj R. Nelivigi Respondent S/o Rachappa Nelivigi R/o Rajendra Nagar Haveri Dist. : Haveri (Karnataka) 2. TIN Facilitation Centre Authorized Signatory Kaveri Consultants Ltd. PB Road, Haveri Dist. : Haveri (Karnataka) BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. D.S. Chauhan, Advocate For the Respondents : Mr. S.K. Sharma, Advocate Pronounced on : 5th January 2012 ORDER
PER SURESH CHANDRA, MEMBER Petitioner herein was OP-1 and respondent no.2 was OP-2 along with respondent no.1 as the complainant. The complainant is an income tax assessee since 1959. He was issued with a PAN Card with No.ABWPN9154F. He stated that his grandfathers name was Basalingappa but due to oversight his grandfathers name was written as Neelappa in the PAN Card. The full name of his father which should have been Rachappa Basalingappa Nelivigi was wrongly written as Rachappa Neelappa Nelivigi. It needed correction or rectification in the PAN Card. Since OP-1 is the concerned authority to correct the PAN Card and OP-2/Respondent-2 is the authorized signatory or the agent of OP-1, on 9.9.2006 the complainant made an application to OP-1 through OP-2 seeking correction of his grandfathers name in the PAN Card. To clarify his request in the application, the complainant forwarded the documents described in para 5 of his complaint under a letter dated 16.10.2006 but again a further clarification was sought by OP-2. The complainant forwarded the authenticated documents to OP-1 on 18.8.2007. He made the second application on 22.9.2007 accompanied with further documents but OP-1 did not carry out the request of the complainant. In spite of lapse of more than two years since the first application, the OP-1 did not provide the corrected PAN Card to the complainant. It is alleged that in the meantime the accounts of the complainant were frozen by the Stock Holding Corporation of India. The interest earned by him on the investment was blocked and he could not sell or purchase the shares and securities during the period. He also could not invest in mutual funds to save the income tax. He sent a legal notice on 13.12.2008 to call upon the OP-1 to rectify the PAN Card and to pay compensation but without any positive response. He also provided OP-1 with various court documents as well as a certificate of identity by Member of Parliament but OP-1 did not act upon. The complainant, therefore, knocked the doors of the consumer fora by filing a consumer complaint claiming compensation of Rs.2 lakhs towards damages for loss of opportunity in investing, Rs.4076/- being interest on the above compensation and Rs.134.34 being the fee paid for rectification of the PAN Card besides general damages and legal fees.
2. On being noticed, OP-1 filed his written version and contended that the complainant is not a consumer and the complaint was false, frivolous and malafide. It was further submitted that the complainant failed to forward the copy of the Gazette Notification or a certificate by Gazetted Officer to support the correct name of his grandfather as per his application. Since the documents furnished by the complainant required to be supplemented by either of the two documents which the complainant failed to furnish, OP-1 closed the matter under the first application. OP-1, however, received another application from the complainant through OP-2 on 17.8.2007 for the same relief. Again OP-1 requested the complainant to forward the copy of Gazette Notification or a certificate issued by the Gazetted Officer and since again there was no compliance of the requirement indicated by OP-1, OP-1 closed the matter under the second application as well. The plea taken by the OP-1 was that the certificate of the Member of Parliament could be submitted as proof of identity for minor correction of the grandfathers name of the complainant but the correction wanted by the complainant was a major correction requiring either Gazette Notification or a certificate by the Gazetted Officer. OP-2 in his reply contended that it was only a mediator between the complainant and OP-1 and there was no deficiency on its part and hence it was not liable to pay any compensation and prayed that the complaint be dismissed.
3. On examination of the documents filed and after hearing the parties, the District Forum vide its order dated 29.10.2009 held that OP-1 had failed to render proper service to the complainant and hence was guilty of deficiency of service. OP-2 was held to be only an agent and thus not responsible either in rectifying the PAN Card or delay in returning the PAN Card to the complainant. The order of the District Forum contained the following directions:-
The complaint is hereby allowed against OP-1.
The complaint against OP-2 is dismissed. No costs.
The OP is directed to pay the complainant compensation at Rs.22,000/- apart from returning the PAN Card of the complainant, duly rectified, within 30 days or else the compensation shall carry interest at 12% p.a. Complainant is entitled for cost of this complaint at Rs.5,000/- from OP-1.
4. Aggrieved by the aforesaid order of the District Forum, OP-1 challenged the same in an appeal filed before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (State Commission for short). The complainant also filed an appeal for enhancement of compensation awarded by the District Forum. The State Commission vide its order dated 28.7.2010 dismissed both the appeals and upheld the order of the District Forum. The present revision petition has been filed against this impugned order of the State Commission.
5. Contentions of Mr. D.S. Chauhan, Advocate appearing for the petitioner and Mr. S.K. Sharma, Advocate for the respondents have been heard. We have also perused the documents placed on record. The only issue for our consideration is as to whether OP-1 was justified in insisting for submission of either the copy of the Gazette Notification or a certificate issued by the Gazetted Officer in support of request for the correction of the name of the grandfather of the complainant and thereby withholding the correction requested for in spite of submission of other supportive documents by the complainant. Learned counsel for the petitioner contended that it was a major correction and hence the petitioner was right in asking for submission of either of the two documents. On the other hand, it is the contention of the learned counsel for the respondent/complainant that it was not a major correction because there was no change of name involved as such but it was only correcting the name which had been wrongly recorded in the PAN Card and hence it was a minor correction as envisaged in the instructions of the Income Tax PAN Services Unit which is managed by OP-1 itself. He further submitted that similar corrections had been carried out by OP-1 earlier in respect of the PAN Cards of the wife and son of the complainant and hence nothing prevented the petitioners to use the same yardstick in the case of complainant as well.
6. Having considered the submissions of the parties before us and after perusing the record, we find that both the fora below have considered the issue and returned their concurrent finding in favour of the complainant while accepting the complaint. The District Forum in its detailed and well-reasoned order has made the following observations:-
14. First application of the complainant was dt:9-9-2006, it shows payment of fees or consideration of Rs.67.34 to do the needful. OP-1 is a service provider to income tax assessee on behalf of ITD. The complainant is the income tax assessee, who paid consideration to get some work done by OP-1. Thus, the complainant was a consumer, there is a consumer dispute between the parties.
Hence, we reject the contention of OP-1 that, complainant is not a consumer and that, complainant is not a consumer and that, the District Forum has no jurisdiction to decide the matter.
15. The first application of the complainant was dt:9-9-2006 and the second application was dt:17-8-2007. They were replied by OP-1. They drawn the attention of the complainant to produce certain documents to comply the request of the complainant. One of such letters dt:19-7-2007 is marked at Ex.P.25. It demanded the complainant to produce anyone of the following documents.
1. School Leaving Certificate.
2. Matriculation Certificate.
3. Decree of a recognized educational institution.
4. Ration Card.
5. Passport.
6. Voters Identity Card.
7. Driving License. Or
8. Certificate of identity, signed by any one of
a) A Member of Parliament
b)A Member of Legislative Assembly
c) A Municipal Counselor. or
d) A gazzetted officer.
16. OP-1 did not demand the complainant to produce all the documents, but it wanted only one of them. The complainant sent a certificate of the then sitting M.P. as per Ex.P.10. Even in its letter under Ex.P.9 received by the complainant on 3-9-2007 OP-1 requested the complainant to clarify the discrepancy and forward the necessary supporting documents (as explained on the reverse of the letter) to enable it to process the application of the complainant. It was enclosed with a proforma or the requirements under Ex.P.9. It demanded gazette notification or a certificate issued by a gazetted officer along with proof of identity for major correction. What made OP-1 to change its mind as required under Ex.P.25, but to demand the documents as per Ex.P.9. The complainant submitted that, there is no rule or law prescribing the production of gazette notification or the certificate of gazetted officer for correction in fathers name of the complainant. He further submitted that, he wanted minor correction in his fathers name and not major correction. But, OP-1 in his letter under Ex.P.9 has given the examples of major and minor corrections. If there is any mistake in writing the spellings of fathers name, it is said to be minor, but if the name of the father had to be changed all together it was a major correction. The complainant wanted the change of entire name of his grandfather and not merely spelling mistakes. In the absence of specific rule or law prescribing the applicant to produce certain documents for correction of his fathers name, OP-1 could be satisfied with the supporting documents, which the complainant had produced. He had produced his birth certificate, death certificate of his father, a letter received by his father in 1947 from the Swaraj Life Insurance Company and the copies of the judgments in different cases. We are of the opinion that, they were sufficient documents or supporting documents to correct the grandfathers name of the complainant. OP-1 failed to satisfy us the basis for it to demand production of gazette notification or the certificate from the gazetted officer. The documents produced by the complainant had the same effect of production of gazette notification or the certificate by the gazetted officer. Even, he had enclosed the letter or the certificate issued by then sitting M.P and it was sufficient in our opinion to rectify the mistake in the PAN Card. Further, the complainant has now produced the copy of his passport. It is one of the documents as per Ex.P.25, admitted or accepted by OP-1 to rectify the mistake in the Pan Card. We find in the copy of the passport of the complainant that, his fathers name is recorded as Rachappa Basalingappa Nelivigi. There was sufficient material before OP-1 to rectify the mistake in the Pan Card of the complainant, but it did not.
17. The complainant is not complaining against the persons responsible, who committed the mistake in the Pan Card issued in 1959, but now he is complaining against the refusal of OP-1 in refusing to rectify the mistake in the Pan Card. Though, OP-1 did not exist in 1959, it existed in 2006 when complainant requested OP-1 for rectification in the Pan Card. We find sufficient proof to rectify the Pan Card as desired by the complainant. There was deficiency of service to complainant by OP-1. Hence, we have to direct OP-1 to issue the rectified Pan Card to the complainant as desired by him.
18. Complainant prayed for compensation on several grounds, but they are not supported by sufficient documents to assess the exact loss to the complainant. But, we can make out from the documents produced by the complaint that, his accounts were freezed for non-production of Pan Card, payment of interest was refused and he could not sell or purchase the shares during Bullish/ Bearish. However it is only a guess work to assess the compensation. We assess it at Rs.20,000/-. Complaint cannot be granted the compensation as prayed by him in detail in the complaint.
7. While upholding the aforesaid order of the District Forum and dismissing the appeal of the petitioners, the State Commission has observed as under:-
5.
Admittedly the Respondent made first application to the appellant through 2nd Respondent in the year 2006. But, till today it has not rectified by the Appellant. Without such corrections the Respondent could not operate his accounts. In fact, it is seen from the impugned order that the Appellant had rectified the PAN Cards of the wife and son of the Respondent based on the Certificate issued by the sitting M.P But, nothing prevent the Appellant to use the same yard stick in case of the Complainant/ Respondent too.
6. Moreover, the Appellant could have rectified the PAN Card of the Respondent relying upon substantial proof about the fathers name of the Respondent which were produced by him before it. The Respondent has furnished sufficient documents or supporting documents including the copy of his passport to the Appellant to correct the grand fathers name of the Respondent in the PAN Card. That means even though sufficient materials were placed before the Appellant to rectify the mistake in the PAN Card of the Respondent, but it did do so till today. Hence, we are of the view that the decision rendered by the District Forum as per its impugned order is proper and correct. It does not call for interference. This appeal is liable to be dismissed. Accordingly, it is dismissed with no order as to costs.
7. In appeal no. 295/2010, the learned counsel for the Appellant/ Complainant submits that in the absence of the original PAN Card, he could not sell or purchase the shares and securities in the share market. He further submitted that there are certain investments in Mutual Funds in which if an amount of Rs.1,00,000/-is invested, the assessee is given a deductions of Rs.1,00,000/- in the total income declared by him. This facility has been denied to the appellant for all these 4 years for want of PAN Card. Therefore, the quantum of compensation awarded by the District Forum is inadequate and less.
8. Admittedly, the appellant / Complainant has not produced any documentary evidence in support of his contention. In the absence of such evidence, we are of the view that the decision rendered by the District Forum as per its impugned order is proper & correct.
8. We agree with the view taken by the Fora below in holding the OP-1 deficient in its service to the complainant. However, we do not agree with the observations of the State Commission regarding the alleged rectification of the PAN Cards of the wife and son of the complainant based on the certificate issued by the sitting Member of Parliament and that nothing prevented the petitioners to use the same yardstick in the case of the complainant as well. The District Forum in para 12 of its aforesaid order has returned a different finding in this regard. It has observed:-
The complainant has stated that, similarly there were mistake in the fathers name of his wife Smt. Shivaleela and that of his son Nandan. They were corrected by OP-1 as desired by them. Complainant himself got them corrected, based upon the letters issued by Sri. Manjunath Kunnur, then M.P. But, OP-1 raised objections and entangled in corresponding and delaying tactics regarding the complainant for the best reasons known to OP-1. Both the parties have suppressed these documents, neither complainant nor OP-1 has produced the documents, pertaining to corrections of Pan Cards of the wife and son of the complainant. If they should have been produced on record, we could come to know what type of corrections were affected in these Pan Cards. We could also say, if they were major corrections or minor rectifications. OP-1 who has admitted corrections in the Pan Cards of wife and son of the complainant, should have contended that, they were minor corrections, and should have produced the documents to show that, they were minor corrections. If really OP-1 had rectified the Pan Cards of the wife and son of the complainant, based upon the certificate issued by the sitting M.P, nothing prevented OP-1 to use the same yard stick in case of complainant too.
9. It would appear from the above that the submission of the complainant in this regard before the fora below could be regarded as just an allegation without proof. In view of this, although we agree with the concurrent finding of the fora below regarding deficiency in service on the part of the petitioners, the same is on account of the reasons and observations made by the District Forum reproduced above. We thought it appropriate to make a mention about this aspect to put the record straight. Be that as it may, it is now brought to our notice by the counsel for the petitioners that the PAN Card in question has since been rectified during the pendency of this petition and corrected PAN Card has already been issued to the complainant. In view of this, he has pleaded that there is no case for any compensation as awarded by the District Forum and upheld by the State Commission. An affidavit to this effect has been filed by the petitioners which is placed on record and the complainant has also acknowledged the receipt of the corrected PAN Card by him from the petitioners along with refund of Rs.100/-. In view of this and keeping the totality of the facts and circumstances of this case, we modify the order of the fora below to the extent that the petitioner is directed to pay to the respondent a lumpsum compensation of Rs.5,000/- along with cost of Rs.5,000/- within 30 days from the date of receipt of this order, failing which the petitioner would be liable to pay interest @ 9% p.a. The revision petition is disposed of in terms of these directions.
(V.B. GUPTA, J) PRESIDING MEMBER (SURESH CHANDRA) MEMBER SS/