Haryana

StateCommission

A/468/2019

AMIT HOODA - Complainant(s)

Versus

DALSON MOTORS AND OTHERS - Opp.Party(s)

SHEKHAR KUMAR

06 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:29.04.2019

                                                         Date of Final Hearing: 08.07.2024

                                                     Date of Pronouncement: 06.08.2024

 

First Appeal No.468 of 2019

 

Amit Hooda S/o Shri Suresh Kumar R/o VPO Asan Tehsil & District Rohtak.                                                                        .....Appellant

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CORAM:             Mr. Naresh Katyal, Judicial Member

                             Mr. S.C. Kaushik, Member

 

Argued by:-       Mr. Shekhar Kumar, counsel for the appellant.

Respondents No.1 & 2 ex-parte vide order dated 03.02.2023 and 11.03.2020 respectively.

Respondent No.3 given up vide order dated 11.03.2023.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

          Challenge in this Appeal No.468 of 2019 of appellant/complainant has been invited to legality of order dated 26.03.2019 passed by learned District Consumer Disputes Redressal Commission-Jhajjar (In short “District Consumer Commission”) in Consumer Complaint No.244 of 2017, vide which complainant’s complaint has been dismissed.

 2.     Factual matrix: Complainant booked AMW and paid advance amount of Rs.50,000/-, in cash, on 01.03.2011. He was asked that AMW (truck) is not in stock and it would be delivered to him after six months i.e. on 01.09.2011. After 01.09.2011, he had been continuously enquiring from office of OPs at Bahadurgarh about the same. On 05.02.2013, he gave request letter to OP No.-1-Manager, Dalson Motors-Bahadurgarh to deliver AMW (Truck), or to pay back amount of Rs.50,000/- which was given by complainant to OP No. 1, as advance payment. On 27.02.2013, he was told to make balance payment on saying that: vehicle would be delivered to him on 08.05.2013. As per plea; complainant was ready to make payment of balance amount and had completed paper formalities of banker and arranged balance amount in time, but suddenly on 25.04.2013, he got call from OP No.1’s office at Bahadurgarh that due to some avoidable circumsntaces; vehicle could not be delivered to him on 25.04.2013 and he was suggested to wait for some time. On 28.10.2014, he gave request letter to OP No.1 to return his amount of Rs.50,000/- which he had paid as advance payment for AMW (Truck) on 01.03.2011. On 14.10.2016, he sent another letter to OP no.1 to refund advance payment with interest of 18% p.a. but there was no response from it. He sent legal notice on 18.05.2017 but of no use. On these pleas; by asserting cause of action; complaint has been filed for seeking direction against OPs (i) to pay Rs.50,000/- with interest of 18% (b) to pay Rs.50,000/- on account of pain and suffering and (c) to pay Rs.15,000/- on account of litigation charges.

3.      OP No. 1-Dalson Motors-Bahadurgarh raised contest. In its written version; it is pleaded that complainant does not disclose any cause of action, complainant has no locus standi. There was no deficiency in service or any unfair trade practice on its part.  Consumer Forum has no jurisdiction. Complainant has not come with clean hands and filed complaint with ulterior motive and mala fide intention. As per plea; Dalson Motors-Bahadurgarh is famous company of having long standing high repute. Complaint has been filed against it to extract money without valid reason. It is pleaded that: complainant never approached OP No.1 for booking alleged AMW (Truck). There was no transaction between complainant and OP No.1. No consideration was ever received by OP No. 1 from complainant. False and concocted story has been pleaded to complainant to grab false compensation. Primarily on these pleas; dismissal of complaint has been prayed.

4.      OP no. 2 (as arrayed in complaint) was proceeded ex-parte before learned District Consumer Commission, whereas OP no. 3 (as arrayed in complaint) was given up. 

5.      Parties led evidence, oral as well as, documentary. On analyzing the same learned District Commission vide order dated 26.03.2019 has dismissed the complaint, thereby giving rise to filing of this appeal by complainant.

6.      We have heard learned counsel for complainant at length. With his assistance; record of learned District Consumer Commission has been perused.

7.      Learned counsel for appellant/complainant, while urging for acceptance of this appeal has contended that impugned order dated 26.03.2019 is grossly illegal-both on factual and legal front. Observations of Learned District Consumer Commission that Sumit Arora has not been impleaded as necessary party and that complaint is time barred are illegal.  In this regard, it is contended that complainant paid advance amount of Rs.50,000/- to Sumit Arora, who received same on behalf of Dalson Motors on 01.03.2011, at the time of booking of AMW (Truck), as it is apparent from document Ex.P-2. It is urged that: since deposited advance amount of Rs.50,000/- has not been refunded by OP No. 1, till date to complainant, despite repeatedly demanding the same by him, therefore, there arises recurring cause of action in favour of complainant, and against OP No.1, on each passing day, hence after 01.03.2011, till actual payment made to him with interest.

8.      Firstly, Learned District Consumer Commission has illegally observed in impugned order dated 26.03.2019 that this complaint is time barred.  Perhaps; Learned District Consumer Commission has lost sight of its previous Zimni order dated 14.05.2018, vide which is has observed that this complaint filed by complainant on 28.09.2017, is within limitation of period of two years.  By observing this; Learned District Consumer Commission has dismissed OP No.1’s application for dismissal of complaint under section 24 A of Consumer Protection Act.  In light of order dated 14.05.2018; Learned District Consumer Commission has committed legal fallacy by observing in impugned order dated 26.03.2019 that this complaint is time barred.  Two contrary observation; one through order dated 14.05.2018 and second through impugned order dated 26.03.2019 are impermissible.  Consequently, it is held that complaint filed on 28.09.2017 is within prescribed limitation period.

9.      Despite observing above; still this appeal of complainant will not succeed on merits.  Reasons in this regard are obvious.  It is specific and positive case of complainant as pleaded in his complaint, as well as, testified through his duly sworn affidavit Ex.P1 being his affirmative version on oath that: he had paid advance amount of Rs. 50,000/- on 01.03.2011, while booking AMW (Truck).   This pleaded fact has been expressly denied by OP No.1-Dalson Motors-Bahadurgarh through its written version, as well as, through duly sworn affidavit Ex. R-1 of its Manager-Sales namely: Sh. Parveen Kumar Kashyap.  As per stand of OP-1, complainant had never approached it for booking of alleged AMW (Truck).  No transaction took place between and OP-1 and no consideration was received by OP No. 1 from complainant. 

10.    ‘Burden of Proof’ lay upon complainant alone to prove that he had paid Rs. 50,000/- as advanced money to Sumit Arora while booking AMW (Truck) on 01.03.2011 and this burden will not shift.  Complainant had placed reliance on document Ex. P2 in this regard, which is its photocopy showing payment of Rs. 50,000/- and this amount being received by Sumit Arora.  Curiously enough, original of this document Ex.P-2 was not produced in evidence by complainant before District Consumer Commission.  Only photocopy of this document was merely tendered in evidence by complainant on 12.09.2018, along with other documents, through his separate statement dated 12.09.2018 and same has been marked as Ex.P-2.  Law on above factual scenario is no more res-integra.  By now, it is well settled law that: mere marking of document as exhibit will not dispense with formal proof of same.  Reliance in this regard can placed upon judgments of Hon’ble Apex Court in cases: Sait Tara Ji Khim Chand and others Vs. Yelamarti Satyam and others, AIR 1971 SC 1865 and Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and another, AIR 2004 SC 175.   In light of ratio of law laid down by Hon’ble Apex Court in above cited judgments; complainant/appellant was legally required to lead evidence, as admissible in law, to prove credibility of document Ex. P-2.  In this regard; Sumit Arora was required to step-in witness box to prove genuineness of document Ex. P-2, but he was not examined by complainant, for reason best known to him. Therefore, credibility of document Ex.P-2 stood traumatized.  Since, cogent and convincing evidence meant for proof of document Ex.P-2 is lacking, therefore, contention of learned counsel for complainant that complainant had paid advance amount of Rs. 50,000/- on 01.03.2011, while booking AMW (Truck), stood repelled.  As flowing consequences;  letters dated 05.02.2013-Ex. P-5 and 28.10.2014-Ex.P-6 allegedly given by complainant to OP No. 1, or legal notice- Ex.P-3 sent to OP No. 1 by complainant’s counsel will not come to his rescue and will also not stimulate his any cause, even remotely, as foundation of his claim based upon photocopy of document Ex. P-2 is not creditworthy at legal pedestal.   Rightly, complainant has been non-suited through impugned order dated 26.03.2019.  There is no fallacy on the part of District Consumer Commission-Jhajjar, while dismissing complainant’s complaint through impugned order dated 26.03.2019, which is hereby affirmed maintained and upheld.  Present appeal of complainant, being devoid of merits is hereby dismissed. 

11.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

12.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

13.    File be consigned to record room.

                                    

Date of pronouncement: 06^th August, 2024

 

 

 

                             S.C. Kaushik                         Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench                         Addl. Bench