Per Mr.K.B.Gawali, Hon`ble Member.
1. This appeal is filed by Purushottam Bapurao Ghatul who was the original complainant against the judgment and order dated 27/03/2008 passed by the Dist. Forum, Beed in complaint case bearing No. 93/2007 by which the complaint filed by this appeallant came to be dismissed. The respondent No. 1 and 2 were the original opponent’s and they are dealer of HMT tractor whereas the respondent No. 3 was the original opponent No. 3 i.e. the branch of State Bank of India.
2. The facts leading to the present appeal are briefed as under :
That the appellant/original complainant is a farmer. It is contended by him that sales man of respondent No. 1 and 2 had been to his village and had persuaded to purchase the said tractor of HMT. Accordingly the appellant decided to purchase the said tractor by raising the loan from the State Bank of India branch, Georai i.e. respondent No. 3. Accordingly he deposited cash amount of Rs 2,10,000/- with the said bank and obtained loan of Rs 6,91,700/- and this loan amount was paid by the bank to the respondent No. 1 and 2 i.e. dealer of the tractor through two demand drafts (1) Demand Draft bearing No 493600 for Rs 2,01,700/- and (2) Demand Draft bearing No. 493599 for Rs 4,90,000/-. That after obtaining of the said amount of Rs 6,91,700/- he approached to the respondent No. 1 and 2 i.e. the dealer for supply of tractor, trolly and other equipments. However, the respondent No. 1 and 2 assured that the tractor would be supplied after 2 to 3 days. The appellant further contended that when he approached after 3 days the respondent No. 1 and 2 avoided to supply the tractor and other equipments. That after repeated pursuation the respondent No. 1 and 2 had given letter dated 08/01/2007 to the respondent No. 3 i.e. the bank by giving assurance that the said tractor would be delivered to the appellant within a weeks time. However, the respondent No. 1 and 2 did not deliver the tractor etc. by which he had to sustain the loss of business of Rs 2,50,000/-. He therefore filed the complaint before the Dist. Forum seeking direction against the respondent No. 1 to 3 to refund amount of Rs 6,91,700/- with interest along with compensation of Rs 2,50,000/- towards the loss of income and further Rs 25,000/- towards mental harassment.
3. The respondent No. 1 and 2 though served did not appear before the Dist. Forum and hence the ex-parte order was passed the against them. As regards the respondent No. 3, it is observed that notice was not served to him and therefore the Dist. Forum had taken the decision to dispose the complaint as per Sec. 13 (2) (C) of the Consumer Protection Act holding that the complainant did not take proper steps for service of the notice.
4. The Dist. Forum holding that no evidence in support of the complaint was submitted by the present appellant/org. complainant, this complaint came to be dismissed by way of its impugned judgment and order.
5. Aggrieved and dissatisfied with the said judgment and order the present appeal is filed by the original complainant in this Commission. Notice was served on the respondent. The appeal was kept for final hearing on 07/09/2012 Adv. Shri.Rajhans Survase was present for the appellant, Adv.Vivek Kulkarni holding for Adv. Shri.P.B.Kulkarni was present for the respondent No. 3. None was present for respondent No. 1 and 2 although Adv. Shri.Ghayal had appeared earlier for them. We have heard both the counsels at length. The learned counsel Shri.Survase present for the appellant submitted that the evidence in the form of documents such as notice dated 27/01/2007 which was issued by the State Bank of India branch Georai i.e. respondent No. 3 to the respondent no. 1 and 2, letter dated 08/01/2007 which was issued by the respondent No. 1 and 2 by which they had agreed to deliver the tractor within 8 days and copy of the receipt dated 10/11/2006 of the said D.D. total amounting of Rs 6,91,700/- issued by the respondent No. 1 and 2 for Kohinoor Tractor has not been considered by the Dist. Forum and has erroneously passed the impugned judgment and order dismissing the complaint. It was also contended by him that the Dist. Forum has wrongly observed that the responsibility of service of notice to the opponent was with the respondent i.e. complainant and made submission that it was the responsibility of the Dist. Forum to serve the notice on the opponents. Therefore he submitted that considering documents on record the appeal be allowed and impugned judgment and order be quashed and set aside.
6. On the other hand the learned counsel Shri. Vivek Kulkarni for the respondent No. 3 submitted that there was no notice served in respect of the complaint filed by the appellant to the respondent No. 3 and no opportunity was given to defend the case. He further submitted that the respondent had issued the demand draft amounting to Rs 4,90,000/- bearing No 493599 and another demand draft of Rs 2,01,700/- bearing No 490600 both dated 07/11/2006 for purchase of tractor and trolly on behalf of the appellant i.e. original complainant. He has also submitted that by letter dated 08/01/2007 the respondent No. 2 had agreed to deliver the tractor and trolly to the appellant within a period of 8 days. Therefore he contended that respondent No. 3 is no way responsible for the claim made by the appellant in his complaint before the Dist.Forum.
7. We have carefully gone through the papers before us and also considered the oral argument as put forth by both the learned counsels. The only question which arises for our consideration and decision is whether the impugned judgment and order passed by the Dist. Forum is proper. Perusal of the impugned judgment and order it is observed that the complaint is dismissed by the Dist. Forum on two grounds (1) the appellant/complainant has not produced the copy of the receipt in respect of the amount of Rs 6,91,000/- paid to the respondent No. 1 and 2 i.e. prop. Of Kohinoor Tractor Agency and that the appellant/complainant did not take proper steps for service of notice on org. opponent No. 1 to 3 .
8. It is observed that the appellant had produced on record the copy of the notice dated 27/01/2007 which was issued by the respondent No.3 i.e. Bank to the respondent No. 1 and 2 i.e. dealer of the tractor alongwith the receipt dated 10/11/2006 regarding the payment of the amount of Rs 6,91,700/- to the respondent No. 1 and 2 and copy of letter dated 08/01/2007 issued by the respondent No. 1 and 2 in favour of the respondent No. 3 i.e. the Banch Manager State Bank of India making commitment of delivery of tractor and trolly within a period of 8 days to the appellant. As regards the service of the notice it was not proper on the part of the Dist. Forum to hold that the appellant/respondent as responsible for taking steps. In fact it is the responsibility of the Dist. Forum to issue notice to the concerned parties and to confirm the service of notice on them.
9. In view of the documentary evidence placed on record by the appellant/complainant as mentioned above and also the facts that the responsibility of service of notice lies with the Dist. Forum and not with the appellant, we hold that the Dist. Forum below has failed to consider these aspects and has erroneously passed the impugned judgment and order without taking into account the evidence on record and also without giving proper opportunity to the respondent to defend their case. We therefore find it necessary to remand the case to the Dist. Forum. for deciding the matter on merit by considering the documents on record. Hence we pass the following order.
O R D E R
1. Appeal is partly allowed.
2. The judgment and order passed by the Dist. Forum is hereby quashed and set aside.
3. Appeal is remanded back to the Dist. Forum with the direction to decide the complaint afresh by taking in to account the documentary evidence placed on record by giving proper opportunity to both the parties.
4. No order as to costs.
5. Parties to appear before the Forum below on 21/11/2012.
6. Copies of the judgment and order be sent to both the parties.
