RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 1457 of 2014

Jagdev Prasad aged about 62 years,

S/o Shri Ram Avtar, R/o Village Pure Pitai,

Post, Pure Noore Nar Singh Bhan, Pargana,

Tehsil, Sadar, District, Pratapgarh.                  ..Appellant.

Versus

Branch Manager, Mahindra and Mahindra

Financial Service Limited, Mumbai Branch

Meera Bhawan, District, Pratapgarh.           ...Respondent.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Shri Rakesh Modanwal for the appellant.

Shri Gopalji Srivastava for the respondent.

Date   24.4.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

Aggrieved by the judgment and order dated 21.6.2014, passed by the Ld. DCDRF, Pratapgarh in complaint case No.373 of 2009, the appellant Shri Jagdev Prasad has preferred the instant appeal. 

Facts leading to this appeal, in short, are that the appellant/complainant had taken a loan from the respondent/OP for purchasing a Mahindra Pick UP Maxi Truck for a sum of Rs.3,41,500.00 out of which Rs.2,00,000.00 was to be taken as loan and the rest amount was to be paid in cash. The OP gave Rs.2 lacs as loan and the amount with interest was to be paid in 36 EMIs. The complainant started making payment of the EMIs but the vehicle of the complainant was stolen on

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16.11.2007 and a claim was pressed with the Insurance Company for payment of the stolen vehicle and the Insurance Company after making investigation paid a sum of Rs.2,99,425.00 by cheque to the financer for realizaing the balance amount due to the complaint and the rest amount to be paid to the complainant but the OP started pressurizing the complainant to accept Rs.1,92,400.00 only for which the complainant was not agreeable and filed a complaint case no.373 of 2009 in the Forum below. The ld. Forum below vide orders passed on 31.12.2010 ordered as under:-

"परिवाद संख्‍या 373/2009 जगदेव प्रसाद बनाम शाखा प्रबन्‍धक महिन्‍द्रा एण्‍ड महिन्‍द्रा फाइनेंशियल लिमिटेड मुंबई शाखा मीराभवन प्रतापगढ सव्‍यय स्‍वीकार किया जाता है तथा विपक्षी को आदेश दिया जाता है कि वह परिवादी को 30 दिन में 2 लाख 17 हजार 599 रूपया तथा इस धन याचिका की तिथि से अदायगी की तिथि तक 10 प्रतिशत वार्षिक की दर से ब्‍याज अदा करे तथा इसके साथ ही साथ विपक्षी परिवादी को 30 दिन में 2 हजार रूपया क्षतिपूर्ति के रूप में तथ 1 हजार रूपया वाद व्‍यय के रूप में अदा करे।"

Thereafter, an application was moved by the respondent/OP for setting aside the exparte order and ld. Forum below thereafter passed the impugned order on 21.6.2014 dismissing the complaint.

The main grounds of the appeal are that the impugned order could not be passed as earlier the ld. Forum had allowed the complaint of the appellant/ complainant on 31.12.2010 and thereafter, had rejected the case of the appellant on the ground of maintainability of the case. Besides, the same Court can not on one hand

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allow the claim of the appellant and on the same facts the Forum can not reject the claim of the appellant as it is beyond their power to do so. Hence, the impugned order is perverse and is liable to be rejected and the appeal allowed.

Heard the ld. counsel for the parties and perused the entire judgment.

Now in this case it is to be seen as to whether the ld. Forum had the power to reverse its own order passed by it on 31.12.2010 by passing the impugned order. It is noticeable that the ld. Forum had passed the order on 31.12.2010 allowing the complaint of the complainant even though it is an exparte order but subsequently, the ld. Forum on an application moved by the respondent/OP Mihindra & Mahindra Financial Services Ltd. the same case was heard again and passed the impugned order dismissing the complaint as it was sitting as Appellate Court of the impugned order. There is no provision in the Consumer Protection Act, 1986 empowering the Forum below to review its own order or to set aside its own order passed exparte or otherwise, finally. In Rajeev Hitendra Pathak & Ors. vs. Achyut Kashinath Karekar & Anr., IV(2011) CPJ 35 (SC), the Hon'ble Apex Court has held that the Forum did not have the power to review or recall its own order. Therefore, in this case, the ld. Forum did not have any authority or power to set aside the order passed by it earlier as it can not sit as an Appellate Court on a judgment and order passed by it only. Therefore, the

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impugned order suffers from material illegality and can not be sustained. Therefore, it is liable to be set aside and the appeal allowed.  

ORDER

The appeal is allowed and the judgment and order dated 21.6.2014, passed by the Ld. DCDRF, Pratapgarh in complaint case No.373 of 2009 is set aside.  

Parties shall bear their own costs.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                 (Raj Kamal Gupta)

               Presiding Member                     Member

Jafri PA II

Court No.4