New Complaint No.231 of 2023.
Date of Institution:26.10.2023.
Old Complaint No:286 of 2018.
Date of Institution:05.07.2018.
Date of order:01.02.2024.
Dazy (since deceased) through her Lrs as under:-
1. Sham Lal son of Fauju Masih (Husband)
2. Andrew (son)
3. Hadley (son), All residents of Ludhiana Mohalla, Dhariwal, Tehsil & District Gurdaspur.
.....Complainants.
VERSUS
Balwinder Singh @ Baba son of Khazan Singh, resident of Near Gurudwara, village Fateh Nangal (Near Numberdar Rattan Lal), Post Office Dhariwal, Tehsil & District Gurdaspur.
.....Opposite Party.
Complaint under Section 12 of Consumer Protection Act.
Present: For the Complainants: Miss.Meena Mahajan, Advocate.
For the Opposite Party: None.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Dazy (now deceased) Complainant (here-in-after referred to as complainants) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Balwinder Singh @ Baba (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the opposite party is doing business of Committee under the name and style of Preet Enterprises Dhariwal and District Gurdaspur and giving various articles like Cars, Motor cycles, Scooters, and other electronic articles to his committee members on the basis of lucky draw. It is pleaded that the complainant Dazy (now deceased) was also one of the committee member of the opposite party and she had been giving installments / committee amount to the opposite party every month from her hard earned money. It is further pleaded that the complainant had paid full and final installments / payment of the committee started by the opposite party, and till its completion, the complainant had paid Rs.10,200/- to the opposite party in monthly installments. But, the opposite party kept on lingering the complainant with the pretext that her turn has not yet come. It is further pleaded that the even till today the opposite party has neither refunded the amount so far received from the complainant, nor given her any article as per terms and conditions of the policy / committee, despite the fact that the complainant had been approaching the opposite party and requesting for delivery of assured article to her. It is further pleaded that the opposite party did not listen to the complainant, rather issued threats to the complainant of facing dire consequences which caused mental agony, physical torture and financial loss to the complainant. It is further pleaded that aggrieved by this act of the opposite party, the complainant served legal notice dated 21.05.2018, dispatched to the opposite party with a request to either deliver the article as assured by him in terms of policy / scheme launched by the opposite party or refund the amount so far received from the complainant alongwith interest from the date of its receipt till actual payment within a period of 15 days from the receiving of this notice. It is further pleaded that the Notice is duly served, but, despite the service of notice, the opposite party has not taken any action into the matter till today. It is further pleaded that the necessity for filing of this complaint has arisen. It is further pleaded that the due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that the there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to either deliver the article to the complainant as assured by him in terms of policy/scheme launched by the opposite party OR refund the amount so far received from the complainant alongwith interest @ 24% P.A. from the date of its receipt till actual payment. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant besides the amount of claim on account mental agony, physical harassment and deficiency in service on the part of the opposite party. Litigation expenses to the tune of Rs.50,000/- may also be awarded in favour of the complainant after accepting this complaint, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint filed by the complainant is not maintainable in the present form and the complainant has not come to the Ld. Commission with clean hands and suppressed true and material facts from this Ld. Commission. It is pleaded that the opposite party is also a member and subscriber of the scheme as well as complainant. It is further pleaded that the scheme was run by one Lovepreet son of Kewal Masih, resident of Model Town Dhariwal and District Gurdaspur. It is further pleaded that the the said scheme was not run by the answering opposite party. It is further pleaded that the complainant was offered the article i.e. Almirah to receive as per the scheme by the above said Lovepreet but, she refused to receive the same. It is further pleaded that the above said Lovepreet son of Kewal Masih requested the complainant to receive the above said article i.e. Almirah, but the complainant avoided to receive the same. It is further pleaded that the opposite party also requested Lovepreet to give Almirah to the complainant, but she is not accepting the same due to the reason best known to her.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed an affidavit of Dazy, (Complainant) alongwith other documents as Ex.C1 to Ex.C7.
5. Learned counsel for the opposite party has filed an affidavit of Balwinder Singh @ Baba, (Opposite Party) alongwith other document as Ex.OP-1.
6. Rejoinder filed by the complainant.
7. Written arguments filed by the complainant but not filed by the opposite party.
8. During the pendency of the present complaint original complainant Dazy had expired and on application having been filed, legal heirs of said Dazy were ordered to be brought on record vide order dated 09.01.2024.
9. Counsel for the complainants has argued that opposite party is doing committee business under the name and style of Preet Enterprises and giving various articles like cars, motorcycles, scooters and other electronic articles to committee members. It is further argued that complainant Dazy (now deceased) had also paid monthly installments to the opposite party being committee member and had paid Rs.10,200/- in total to the opposite party. However, the opposite party has refused to give any item as assured and has also refused to refund the amount which amounts to deficiency in service.
10. On the other hand none has appeared on behalf of opposite party inspite of availing number of opportunities and case is of 2018 and is required to be disposed off as per instructions received from the Hon'ble State Consumer Disputes Redressal Commission, Punjab Chandigarh vide letter dated 26.11.2021.
Accordingly, we have gone through the facts mentioned in the written reply. It is pleaded in the written reply that no such scheme is being run by the opposite party rather said scheme is being run by Lovepreet and opposite party is only member of said committee. It is further pleaded that Lovepreet had requested the complainant to receive Almirah but she refused and as such complaint is not maintainable and is liable to be dismissed.
11. We have heard the Ld. counsel for the complainants and gone through the record.
12. To prove her case complainant Dazy (now deceased) had placed on record her duly sworn affidavit, broacher Ex.C1, receipts Ex.C2 to Ex.C5, copy of legal notice Ex.C6 and postal receipt Ex.C7. Although, the opposite party has taken plea that the said scheme is not being run by the opposite party but the opposite party has not been able to explain any reason as to why the complainant Dazy (now deceased) has filed the present complaint against the opposite party and got served a legal notice. Although, complainant has placed on record only few receipts regarding deposit of installments but since the opposite party has not made any specific denial regarding receipt of payment and perusal of broacher Ex.C1 shows that very vague terms and conditions are written on the same and it does not bear the name or address of proprietor or partner of the firm which shows that opposite party is indulging in such like schemes and is wrongfully collecting installments from the public and is denying refund of the amount and promised items. The opposite party cannot be absolved from the liability by merely saying that the scheme is being run by Lovepreet. However, opposite party aware about the fact that complainant was offered Almirah which shows that the said plea has been taken by the opposite party to escape from liability.
13. In addition to above the applicants/complainants has placed on record affidavit of Fanila son of Jaison as Ex.C8 and said Fanila has stated that he was also committee member of the committee being run by the opposite party and the payments were made by now deceased complainant Dazy in his presence.
14. The plea of the complainant is also proved from the evidence of Fanila Ex.C8 who has stated himself to be committee member and witness to the payments being made by the deceased Dazy to the opposite party. The said evidence of Fanila is remained unrebutted. Accordingly, we are of the view that refusal to refund the amount and not giving assured item to the complainant amounts to deficiency in service on the part of the opposite party.
15. Accordingly, present complaint is partly allowed and opposite party is directed to refund the amount of Rs.10,200/- alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization within 30 days from the date of receipt of copy of this order. No order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Feb. 01, 2024 Member
*YP*
