State Consumer Disputes Redressal Commission
Prabir Kumar Dey vs Amarnath Pradhan on 22 June, 2023
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
C.C. NO. 24 OF 2021
Prabir Kumar Dey, aged about 37 years,
S/o. Sri Deepak Kumar Dey,
At- Hazarigali
P.O.Telengabazar
Town/Dist. Cuttack - 753009
... Complainant
-Vrs.-
1. Amarnath Pradhan,
S/o. Late BiswanathPradhan,
Permanent resident of
Village/P.O. Golabandha,
P.S. Industrial Police Station,
Dist: Angul,
At present residing at N-2/49,
IRC Village, Nayapali-751 015
Bhubaneswar, Dist. Khordha
2. Auro Infrastructures,
A Proprietorship Firm,
Represented by its Proprietor,
At-5th Lane, Angul
At/P.O. &Dist: Angul.
... Opp.Parties
For the complainant:M/s. K.K.Jena
For opp. Parties : M/s. R.K.Pattnaik& Associates
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P R E S E N T:
HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT,
DR P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
DATED THE 22nd JUNE, 2023
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT Here is a complaint case filed under Section 47(a)(ii) of the Consumer Protection Act, 2019 (herein called 'The Act') by alleging deficiency in service and unfair trade practice on the part of O.P.1 and 2.
2. The unfolded story of the complainant is that the complainant was close friend of Late Debabrat Amarnath who is the son of opposite party no.1. Debabrat Amarnath was a Civil Construction Contractor and proprietor of a Partnership Firm in the name and style "Auro Infrastructures". It is alleged that during the friendship between Debabrat and complainant, a proposal was mooted that Debabrat will supply chips, sand, 3 boulders, cements etc. to complainant who will purchase the same for doing business for earning his livelihood. In order to avoid any future contingency, both Debabrat and the complainant made an agreement executed on 20.3.2019 stating that Debabrat will supply the construction materials to complainant who will supply the money as and when he got the consideration payable by the complainant. Since they are friends, the complainant has also deposited the money with Debabrat so that the supply of material will not be affected. It is alleged that at times there are some over payments and money has to be refunded by Debabrat and in one occasion, Debabrat was to provide some materials amounting to Rs.10.00 lakhs and the complainant has paid Rs.10.00 lakhs to Debabrat. Those materials could not be provided. Finally, Debabrat has returned Rs.10.00 lakhs to continue the transaction.
3. It is also the case of the complainant that the complainant has made over payments to Debabrat and such over payments have been refunded by Debabrat by issuing some cheques 4 amounting Rs.1,03,08,600/-. The complainant alleged that he has maintained the accounts in the Kotak Mahindra Bank, Janpath, Bhubaneswar and in the Yes Bank, Bapuji Nagar, Bhubaneswar Branch and his wife Smt. Smitika Bose is maintaining the account in the Kotak Mahindra Bank, Janpath, Bhubaneswar Branch and Debabrat was also maintaining Account No. 32148971614 in State Bank of India, Angul in the name of his Firm "Auro Infrastructures". In course of their transaction, some over payment was refunded by Debabrat by handing over three post dated cheques for Rs.25,00,000/-, 36,00,000/- and 35,00,000/- total amounting to Rs. 96,00,000/-. On 14.10.2020, Debabrat promised to pay the balance amount of Rs. 24,49,000/- to complainant on 21.10.2020 because Debabrat has got contract work from "the National Building Construction Corporation Limited". Unfortunately, Debabrat died on 17.10.2020 due to car accident which took place on 17.10.2020.
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4. It is alleged that the complainant placed all the cheques on due time in the concerned Bank, but the cheque dated 5.3.2021 amounting Rs.25,00,000/- was refunded with remark that "funds insufficient". Similarly, the cheque dated 3.5.2021 amounting Rs. 36,00,000/- was returned by the Drawing Bank on the ground of "Others-customers deceased". The third cheque dated 11.5.2021 amounting Rs. 35,00,000/- was returned with the remark "Funds insufficient". All the cheques were returned. The complainant sent three notices under Section 138 of the Negotiable Instruments Act to opposite party no.1 because his son Debabrat died on 17.10.2020. After receipt of the notice, opposite party no.1 in his reply dated 28.5.2021 and 16.4.2021 admitted that he is the legal heir of Debabrat Amarnath, but challenged that no proceeding can be started under Section 138 of the N.I. Act even in non-drawal of cheques. Opposite Party no.1 did not make any payment in respect of the request of the complainant.
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5. It is also alleged that opposite party no.1 being legal heir of Debabrat Amarnath should at least refund the money which was paid on overpayment to Debabrat for Rs. 1,05,08,600/-. As the opposite party no.1 did not refund the money and expressed his ignorance of transaction, the complaint was filed alleging deficiency in service on the part of the opposite parties. In the prayer, the complainant asked for payment of Rs. 1,05,08,600/- for deficiency in service and Rs.2,00,000/- for mental agony.
6. Per contra Opposite Party No.1 filed written version stating that the complainant is not a consumer under the Act, as no consideration was paid to the opposite party for availing and hiring of service. There is no contract between the opposite party no.1 and the complainant. It is also stated in the pleadings that complainant is a service provider and not a service hirer for which he cannot be transposed as consumer to maintain the dispute. The complaint is barred for mis-joinder of parties. The nature of the complaint shows that it is a money suit for which Civil Court is the competent authority to decide the matter. 7
7. Opposite Party no.1 also denied all the facts as alleged in the complaint. Opposite Party strongly denies the fact of any deficiency in service due to non-payment of dues of the complainant by his late son and the complainant is totally ignorant about the transaction except the fact that late Debabrat Amarnath is the only son of opposite party who died in an road accident on 17.10.2020. He is the Class-I legal heir of Debabrat. He also refuted about any involvement of the agreement dated 20.3.2019 executed by his son Debabrat with the complainant to supply the materials in lieu of money being deposited by the complainant with Debabrat. He admitted to have got the notice under Section 138 of N.I. Act and necessary reply has been given by opposite party no.1. It is stated that non-payment of dues of his son cannot be consumer dispute so as to realise the amount from him under the Consumer Protection Act, 2019. He denied to have met the complainant ever and promised to pay the money as per the promise made by his son. Finally, he prayed to reject the complaint. 8 ISSUES
8. After going through the pleadings of both the parties, three issues emerged for consideration:-
(I) Whether the complaint is maintainable? (II) Whether the complainant has proved his case and the deficiency in service on the part of the opposite party?
(III) Whether the complainant is entitled to any compensation, if so, the quantum of such compensation?
ANALYSIS ISSUE NO.II
9. This issue is taken up first to decide the other issues.
The complainant has alleged about the agreement with Debabrat with the knowledge of opposite party no.1 and three post-dated cheques issued by Debabrat and finally they are bounced on the ground of "insufficient funds" or "others- customers deceased". On the other hand, the pleadings of opposite party no.1 shows that he is not aware of any transaction and agreement and completely denied his liability. 9
10. It is well settled in law that if none of the parties adduced evidence and file documents, suit fails. Keeping in mind of this principle, we are of the view that issue has to be answered by discharging the onus by complainant. The Complainant has filed evidence affidavit and documents in support of his claim. The complainant being examined as C.W.1 has clearly stated that a close friend of Debabrat namely, Amarjit Gajendra Pattnaik, owner of 'Foods day Restaurants' introduced the complainant with Debabrat. It is also revealed from his statement due to intimacy developed, during intimacy both came to know Debabrat has got Partnership Firm in the name and style of 'Auro Infrastructure' at Angul. In course of their interaction, Debabrat agreed to supply construction material to the complainant to the complainant on payment of consideration. Also the complainant was assured to get construction material so as to go ahead with his own business.
11. It is revealed from the statement of C.W.1 that to avoid any future complicacy, they have executed agreement which is 10 Annexure-1. We have gone through the same which is placed on record. We have gone through their agreement. Paragraphs 4 and 5 of the agreement are as follows:
"4.That both the parties agree that if overpayment is made by the purchaser /consumer, the service provider/seller shall pay back such amount immediately to the purchaser.
5. That both the parties agree that during the course of said transactions(s), if any amount would remain outstanding on any of the party and if any party would fail to make payment of the outstanding dues, the other party shall proceed in any court of law to recover the amount out of his share of the movable and immovable property of the family for satisfaction of the dues of said party.
12. The statement of C.W.1 shows that he has made overpayment of Rs. 1,05,08,600/- and the same has to be returned by the opposite party and the Debabrat was the Proprietor of 'Auro Infrastructures'-opposite party no.2 in his 11 evidence. It is also revealed from the statement that during life time he has refunded Rs.10.00 lakhs which was received by him for overpayment on the material supplied by Debabrat to complainant.
13. C.W.1 proved three post dated cheques left by Debabrat. The complainant proved the post dated cheques vide Annexure- 2 series. It appears that on 5.3.2021, cheque of Rs. 25,00,000/- was issued by the Debabrat to complainant. Another cheque of Rs.36,00,000/- was issued by Debabrat on 3.5.2021. Also C.W.1 proved the cheque of Rs. 35,00,000/- issued by Debabrat- opposite party no.1 on 11.5.2021. All the cheques vide Annexure-2 series stated to have bounced on the ground that there is 'insufficient fund' and 'others-customers deceased'. It appears from copies of the Bank Statement which shows that cheque dated 5.3.2021, Cheque dated 3.5.2021 and Cheque dated 11.5.2021 returned being bounced on 9.3.2021, 5.5.2021 and 13.5.2021 for refund of the amount on the ground of 'insufficient fund', 'Other-customer deceased and insufficient 12 fund'. But when the statement of C.W.1 is filed with affidavit and the cheques are available on record, C.W.1 not being cross- examined, un-assailed statement of complainant has proved the bounce of cheques. On the other hand, such statement and documents have not been challenged by cross-examining the complainant. Add to this, the complainant has filed their calls details with Debabrat with regard to conversation during 2018 to 2020, video clips although not sent, but printed materials led to conclusion that complainant and late Debabrat who is son of O.P.No.2 have got intimacy and deal with the construction materials and payment thereof.
14. In view of the unchallenging testimony and documents, we are of the view that the cheques issued by Debabrat returned being bounced. It is needless to say that complainant has stated to have paid Rs. 1,05,08,600/-. When such amount is paid, the complainant should have kept all records, but no such document is filed. Further, after scanning the evidence, we are of the view that although the complainant has stated to have paid to late 13 Debabrat a sum of Rs. 1,05,08,600/- but it is not stated as to when that money was paid. However, when Annexure-2 series are proved along with unchallenged statement of complainant we are constrained to hold that the complainant was to get over payment refunded from Debabrat who is the son of opposite party no.1, but those cheques are bounced.
15. The complainant issued notice under Section 138(b) of the N.I. Act for payment of his amount but the opposite party no.1 refused to accept the same. However, he has stated that Debabrat who is the son of opposite party no.1 had opened one Firm 'Auro Infrastructure' and O.P. not admitted to be proprietor of O.P.No.2. Moreover, when those cheques are issued by Debabrat and bounced with the remark 'funds insufficient' or 'Others-customers deceased', O.P.No.1 being legal heir of Debabrat and Proprietor of O.P.No.2 cannot get rid of the liability by expressing ignorance of such transactions.
16. C.W.1 has categorically stated that opposite party no.1 is entitled to refund the amount but the opposite party no.1 14 refused to pay stating that he is not aware about the issues of such cheques. No doubt, under Section 138 of N.I. Act, the person who has issued the cheque should be proceeded with. Since Debabrat has died in the meantime, the question of criminal liability of Debabrat does not arise but his father who is none other than opposite party no.1 in this case should have adduced evidence to repudiate the evidence of the complainant, but has not done so. So the conduct of opposite party no.1 for not making payment to the complainant is deficiency in service on the part of opposite party no.1and 2. Thus, the complainant has proved by cogent evidence that there is deficiency in service on the part of the opposite parties which are established by the complainant. It is reiterated that out of Rs. 1,05,08,600/-, the complainant has proved for issue of cheques for total amounting Rs. 96,00,000/-, but no other documents except statement of accounts of Bank concerned filed to show payment of rest of the money so as to refund the same, but those statement of account 15 without proving the categorically to prove rest of the amount. Issue No.II is answered accordingly.
ISSUE NO.I
17. Now the crucial question arises whether the complaint is maintainable in absence of mis-joinder of parties. We have verified the concerned letters of O.P.No.1 to the advocate for complainant and admittedly the opposite party no.1 is the legal heir of Debabrat. The opposite party no.1 has taken the plea that there is no contract between the complainant and the opposite party no.1. It is true that there is no relationship between the complainant and opposite party no.1 till the life time of Debabrat. But after the death, there is clear agreement that over payment made can be paid by the family and other resources. Since opposite party no.1 is part of the family and also member of the Partnership firm of opposite party no.2, being not specifically denied about his involvement with opposite party no.2, we are constrained to hold that the case against the opposite party no.1 is maintainable. 16
18. It is stated by opposite party that matter should be dealt with by the civil court not by consumer dispute. In this regard, we are of the view that any contractual obligation arising from the agreement between the complainant and the Debabrat has to be satisfied by Debabrat, in his absence his legal heir who is none other than opposite party no.1 and their firm who is opposite party no.2. Learned counsel for the opposite party took the plea that he would not adduce any evidence to support the written version but rely on written version. In his argument, he has submitted that complainant is not a consumer because of lack of agreement between the complainant and opposite party no.1. For the reasons stated above, we hold that Debabrat is a Service Provider promising to supply the material in lieu of the money deposited by the complainant. No evidence is led by opposite party to prove the submissions. However, we are of the view that the complaint case is maintainable. Issue no.I is answered accordingly.
17ISSUE NO.III
19. In view of the findings in Issue No.I and II, we have to decide the compensation if any payable by opposite parties to the complainant. Normally, under the Consumer Protection Act, consumer can claim compensation for deficiency in service and unfair trade practice from the Service Provider or the seller. There is no bar under the Act to file complaint petition for realisation of the same from the opposite party-Service Provider or the person who is liable to remove the deficiency and not to repeat unfair trade practice because the original Service Provider is dead. When there is no bar under the Act and Common law and facts proved are clear to show that claim for compensation can be filed not only against the person who is a part to the agreement but also the legal heirs of the person concerned, we are of the view that this opposite party no.1 who is the proprietor of opposite party no.2, both the opposite parties are jointly and severally liable to pay compensation to the complainant. Issue No.III is answered accordingly.
20. In view of the aforesaid analysis, the complaint is allowed in part against the opposite parties on contest without cost. 18
21. The opposite parties are hereby directed to remove the deficiency in service and for that has to pay back Rs.96,00,000/- as compensation to the complainant within 45 days failing which it will payable with 9% interest p.a. The opposite parties are jointly and severally liable to pay compensation of Rs.2,00,000/- to the complainant for mental agony within the above period. All the payments if not paid within the above period, they will carry interest @12% from the date of filing complaint till date of payment made.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
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(Dr.D.P.Choudhury J) President ............................
(Dr.P.K.Prusty) Member ...........................
(Miss S.L.Pattnaik) Member