State Consumer Disputes Redressal Commission
Sheel Ratan Sinha vs Manoj B.Nangia on 18 February, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
UNION TERRITORY, CHANDIGARH.
Appeal case No.267/2009
Date of institution:15.5.2009
Date of decision :18.2.2010
Sheel Ratan Sinha
.Appellant
V
E R S U S
1.
Manoj
B.Nangia, Capital Gas Corporation, SCO 88-89, Sector-8-C, Chandigarh.
2.
SBI
Card and payment Services Pvt. Ltd., State Bank House, 11, Parliament Street,
New Delhi-110001.
..Respondents
Appeal
U/s 15 of Consumer Protection Act,1986 against
order dated 17.4.2009
passed by Consumer Disputes
Redressal Forum-I, U.T.Chandigarh.
Argued by : Sh.Kapil Kakkar,advocate for appellant
Sh.Manoj B.Nangia,respondent No.1 in person.
Appeal case No.267/2009
1]
SBI Card and Payment Services Pvt. Ltd., State Bank House, 11 Parliament Street, New Delhi 110001.
2] SBI Card
and Payment Services Pvt. Ltd., SCO 110-111, 2nd Floor, Sector 34-A, Chandigarh
through its nodal officer.
Appellants
Versus
Manoj B. Nangia,
Capital Gas Corporation, SCO 88-89, Sector-8-C, Chandigarh.
Respondent
Appeal
U/s 15 of Consumer Protection Act,1986 against
order dated 17.4.2009 passed by Consumer Disputes
Redressal
Forum-I, U.T.Chandigarh.
Argued by : Sh.Kapil Kakkar, advocate for appellant
Sh.Manoj B.Nangia,
respondent in
person.
BEFORE : Honble Mr. Justice Pritam Pal, President
Maj.Gen.S.P. Kapoor (Retd.),Member
Mrs. Neena Sandhu,Member
JUDGMENT
18.2.2010 Justice Pritam Pal, President
1. The aforesaid two appeals have arisen out of one and the same order dated 17.4.2009 passed by the District Consumer Forum-I, U.T. Chandigarh whereby complaint case No.1069 of 2008 filed by Manoj. B.Nangia against SBI Card and payment services Pvt. Ltd. was allowed in the following terms ;
The present complaint is accordingly allowed and the OPs are directed to withdraw the notice dated 29.11.2006 issued by them to the complainant immediately with the observation that no amount is due from the complainant. They shall also pay a sum of Rs.one lac as punitive damages which shall be deposited before this Forum out of which Rs.25,000/- shall be paid to the complainant and the remaining shall be paid to the Secretary, State Legal Services Authority, UT, Chandigarh. If the amount alongwith litigation costs of Rs.5,000/- is not paid within thirty days from the date of receipt of copy of the order the OPs would be jointly and severally liable to pay the same alongwith penal interest @ 12% per annum since the filing of the present complaint i.e. 10.9.2008 till its payment to the complainant and the Secretary, State Legal Services Authority, UT, Chandigarh.
Needless to mention that the OPs would be free to recover this amount from Sheel Ratna Sinha, Manager who filed the false affidavit and other official(s) at fault in issuing the notice dated 29.11.2006, after giving them an opportunity of being heard.
2. In fact appeal No.267 of 2009 has been filed by Sh.Sheel Ratan Sinha, manager of OP for expunging the stricture passed against him by the District Consumer Forum whereas the other appeal bearing No.281 of 2009 has been filed by OPs for setting aside the impugned order. Since common questions of law and facts are involved in these two appeals, therefore, we propose to dispose of them by this common judgment.
3. The parties in this judgment hereinafter shall be referred to as per their ranking before the District Forum.
4. In nutshell, the facts culminating to the commencement of these two appeals may be recapitulated thus ;
The complainant was holding Credit Card bearing account No.0004317575011177012 issued by OP. On 19.2.2004 a robbery took place in the house of complainant and the dacoits forcibly took purse, cash, jewellary and valuable items. The purse contained the SBI credit card. The dacoits at the gun point obtained pin number and withdrew a sum of Rs.10,000/- from the ATM Credit Card of complainant. Complainant immediately reported this matter to the OP Bank as well as Panchkula Police who lodged an FIR. Then on receipt of account statement showing withdrawal of Rs.10,000/- from the account of complainant through his credit card, he wrote letter to the OP requesting them that it being a fraudulent transaction committed by the dacoits, so the same be covered under the insurance company of the bank which covers the card holders against misuse of the card in case of theft and dacoity, but the same was not acceded to and rejected by OP vide letter dated 6.12.2005. After protracted correspondence ultimately on 16.7.2006 the matter was settled between the parties and in terms of the settlement the complainant issued two cheques of Rs.11,000/- each i.e. Rs.22,000/- as full & final settlement of all claims pertaining to his credit card. Both the said cheques were duly encashed in favour of OP. However, the complainant was shocked to receive a notice dated 29.11.2006 from Kohli & Sobti Advocates & Solicitors of OP asking him for making payment of Rs.38,312.52 ps. and also threatening to initiate legal proceedings. The notice was duly replied by complainant in response to which the OP vide letter dated 2.3. 2007 admitted that currently there were no dues payable to OPs.
Thereafter, the OPs vide letter dated 30.5.2007 again raised a demand of Rs.11,000/- on the ground that one of his cheques for Rs.11,000/- bearing No.107906, dated 16.5.2007 drawn on Allahabad Bank had been returned unpaid on account of Insufficient Funds, whereas according to the complainant the said cheque had already been got encashed by OPs. Inspite of that, the OPs sent statement dated 25.6.2008 to the complainant showing the due amounts towards him as Rs.81,883.78. The OPs also started making threatening mobile calls to the complainant and using abusing language thereby pressurizing him to make the balance payment of credit card. The OP inspite of receiving the settlement amount of credit card, declared the complainant as defaulter and circulated his name through Civil List of Defaulters prepared by Credit Information Bureau of India (CIBIL), which not only tarnished his image in public at large but also barred him from availing any credit card or loan facility of any other bank and this fact came to his knowledge from CIBILs Defaulter List lying with HDFC bank. It was alleged that the above act OPs which amounted to gross deficiency in service & unfair trade practice caused great mental torture, tension, agony, harassment and humiliation to the complainant as well as his family members besides tarnishing his image and spoiling his financial reputation in public at large through print & electronic media. Hence, complainant filed complaint before the District Consumer Forum.
5. On the other hand, both OPs contested the complaint before the District Forum and filed joint reply by admitting the factual aspect of the matter that the complainant was holding credit card issued by them and he had withdrawn Rs.10,000/- through the said credit card. It was also admitted that the matter regarding payment of credit card dues was settled between the parties and as per settlement the complainant issued two cheques of Rs.11,000/- each as full and final payment. According to OPs, one of cheque bearing No.107906 for Rs.11,000/- issued by complainant was returned unpaid and its intimation was duly sent to the complainant vide letter dated 30.5.2007 as such the demand raised by OP was justified as the payment of said cheque was still outstanding against the complainant and therefore, there was no deficiency in service on the part of OPs.
6. The District Forum after going through the evidence and hearing the learned counsel for the parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, Sheel Ratna Sinha, Manager and opposite parties have come up in their respective appeals.
7. We have heard learned counsel for the parties and gone through the file carefully. It was contended on behalf of Sheel Rattan Sinha, Manager of OPs that there was no malafide intention attributed to the officer because the affidavit was sworn in good faith and in bonafide action being a part of his day to day duty as it was a practice and procedure adopted by the company that the legal counsel/law officer was required to sign the pleadings and swear affidavits before various courts/tribunals in the entire country and for that purpose a power of attorney was duly executed in favour of such officer. The officer was only to present the facts before the court as proved by the concerned department of the company based on the records. It is further contended that there was no intention to file false affidavits or to bring on record anything which was false as at the time of filing affidavit he did not have the knowledge of the fact that the cheque in question was encashed and the said information was given as per the information provided to him by the customer care remittance team of OP No.2 and as such the punitive damages and personal strictures were palpably wrong in law as no opportunity of hearing was given to him before passing the strictures .
8. The learned counsel for OPs, however, contended that on filing incorrect reply/affidavit, unconditional apology was submitted admitting the fact that there had been an error on the part of OPs as the affidavit was not filed with any corrupt motive or malicious intention but the District Forum has not appreciated these facts in its right perspective before imposing the penalty. The learned counsel submitted that OPs tender unconditional apology even before this commission with the prayer to waive of the damages imposed upon them. The complainant himself appeared and repelled the contentions of OPs by stating that he had been put to unnecessary harassment for a long time without there being any outstanding amount against his credit card, so, the amount of compensation granted by the Forum is on the lower side.
9. We have given our thoughtful consideration to the entire matter and find that despite receiving payment from the complainant the OPs had still issued notice to him for paying the exaggerated amount which in fact no longer remained due against him. After settlement of dues, OPs had no right to issue notice to the complainant to pay the amount and threatening him of initiating legal proceedings for the recovery of dues at his risk, cost and consequences. OPs had not consulted their record about the receipt of amount before issuing notice to the complainant or atleast before filing the reply and affidavit before the District Forum. It is admitted by OPs that the averments contained in the reply as well as affidavit were palpably wrong on the face of it due to which complainant had to suffer harassment, mental agony for a pretty long time with no fault of his , so punitive damages in such like cases are desirable. The learned District Forum by following the authorities of Honble National Commission in Reliance India Mobile Ltd. Vs Hari Chand Gupta-III(2006) CPJ 73 and Jodhpur Vidyut Vitran Nigam Ltd. Vs Rameshwar Prasad Vaishnav & Ors II(2007) CPJ 280 rightly imposed punitive damages of Rs.one lac.
10. Undoubtedly the rule of audi alterum partem requires that a man shall not be subjected to final judgment or to punishment without an opportunity of being heard. The learned District Forum very well followed this dictum and instead of passing an order of prosecuting Sheel Ratna Sinha imposed punitive damages. The observations made by the District Forum in the impugned order in that regard are as under ;
On the face of it, the reply filed by the OPs and the affidavit of Sheel Ratna Sinha is contrary to records for which Sheel Ratna Sinha can be prosecuted for giving false evidence before this Forum by swearing affidavit containing false facts, not to defend its own interest but to defeat the genuine claim filed by the complainant. It is an unfortunate trend among the litigants that almost in each case one party or the other forge documents, submit false evidence and take pleas which are far from truth and contrary to their own records. This trend need to be curbed and instead of prosecuting Sheel Ratna Sinha, the Manager of the OPs who has filed a false affidavit before this Forum and the OPs who have filed reply which is contrary to facts, we are of the opinion that exemplary costs should be imposed on them for harassing the complainant mentally and physically for more than two years even after the settlement was reached at and even thereafter before this Forum through these proceedings.
11. The learned District Forum in para-11 of its impugned order gave liberty to OPs to recover the amount from Sheel Ratna Sinha, Manager who filed the false affidavit and other officials at fault in issuing the notice dated 29.11.2006 after giving them an opportunity of being heard. The learned District Forum rightly gave liberty to OPs to recover the amounts from delinquent officials after giving them opportunity of being heard. Thus, the intention of the District Forum was very much clear of granting opportunity to the officials of being heard before imposing any punishment upon them of recovering the amount by giving liberty to OPs to afford opportunity of being heard to the officials at fault before making any recovery from them.
10. In view of the foregoing discussion, we find no illegality in the impugned order dated 17.4.2008 passed by the District Forum. However, keeping in view the facts and circumstances of the case and the harassment suffered by the complainant at the hands of OPs we feel that out of the total amount of Rs.one lac, 50% i.e. Rs.50,000/- be paid to him and the remaining 50% be deposited with the Secretary,State Legal Services Authority, U.T.Chandigarh. We order accordingly.
11. In the result, both the appeal are hereby dismissed, leaving the parties to bear their own costs.
Certified copies of this order be communicated to the parties as well as to the Secretary, Legal Services Authority, U.T.Chandigarh, free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 18th Feb.,2010 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs.Neena Sandhu) *Js Member STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Appeal case No.281/2009Date of institution:21.5.2009 Date of decision :18.2.2010 1] SBI Card and Payment Services Pvt. Ltd., State Bank House, 11 Parliament Street, New Delhi 110001.
2] SBI Card and Payment Services Pvt. Ltd., SCO 110-111, 2nd Floor, Sector 34-A, Chandigarh through its nodal officer.
Appellants Versus Manoj B. Nangia, Capital Gas Corporation, SCO 88-89, Sector-8-C, Chandigarh.
Respondent Appeal U/s 15 of Consumer Protection Act,1986 against order dated 17.4.2009 passed by Consumer Disputes Redressal Forum-I, U.T.Chandigarh.
Argued by : Sh.Kapil Kakkar, advocate for appellant Sh.Manoj B.Nangia, respondent in person.
BEFORE : Honble Mr. Justice Pritam Pal, President Maj.Gen.S.P. Kapoor (Retd.),Member Mrs. Neena Sandhu,Member JUDGMENT 18.2.2010 Justice Pritam Pal, President This appeal has been dismissed in terms of our detailed order of the even date recorded separately in connected appeal case bearing No.267 of 2009 titled Sheel Ratan Sinha vs Manoj. B. Nangia etc. A copy of that order be placed on this file.
Certified copies of this order be communicated to the parties , free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 18th Feb.,2010 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs.Neena Sandhu) *Js Member