Punjab

StateCommission

A/11/1765

Mahindra & Mahindra Financial Service Ltd. - Complainant(s)

Versus

Gurmeet Singh - Opp.Party(s)

S.C.Thatai and Nitin Thatai

26 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

First Appeal No.1765 of 2011

 

                                                          Date of Institution: 01.12.2011

                                                          Date of Decision : 26.05.2015

 

Mahindra and Mahindra Financial Services Ltd., SCO 85, First Floor, City Centre, Opposite Bus Stand, Amritsar, Punjab represented through Sh. Anurag Sharma, Assistant Manager (Legal).

 

                                                                                                                                                                                                                                                                                        …..Appellant/Opposite Party

                                      Versus

 

1.       Gurmeet Singh son of Sh. Milkha Singh resident of Village Jalal          Ussma, Tehsil Baba Bakala, District Amritsar Punjab.

                                                                     …..Respondent/complainant

2.       Harbir Singh son of Sh. Satnam Singh resident of Village Jalal   Ussma, Tehsil Baba Bakala, District Amritsar Punjab.

3.       Sh. Sudhir, Manager, Mahindra and Mahindra Financial Services         Ltd, near Phuwara Chowk, Batala, District Gurdaspur.

 

                                      ..Respondent nos.2 &3 /opposite party nos.1 & 3

         

First Appeal against order dated 13.10.2011 passed by the District Consumer Disputes Redressal Forum, Amritsar

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member.

          Shri Harcharan Singh Guram, Member

 

Present:-

 

 

          For the appellant                       :         Sh. Nitin Thatai, Advocate

          For the respondent nos.1 :         Sh.K.C. Singla, Advocate

          For the respondent no. 2           :         Sh.Sachin Sharma, Advocate   

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the Opposite party no.2 in the complaint) has directed this appeal against the respondent no.1, (being the complainant in the complaint), respondent no.2 and 3 (being OP No.1 and 3 in the complaint), challenging order dated 13.10.2011 of District Consumer Disputes Redressal Forum Amritsar, accepting the complaint of the complainant by directing OP No.2 to handover the possession of the vehicle bearing registration no.PB-02-AN-7676 in the same condition, as it was taken on 18.12.2009 to the complainant and in case the said vehicle has been sold by OP No.2 then to pay amount of Rs.3 lac to the complainant along with interest @ 9% p.a. The instant appeal has been preferred against the same by the OP No.2 now appellant.

2.      The complainant Gurmeet Singh has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OP No.1/Harbir Singh got financed a Scorpio vehicle bearing registration no.PB-02-AN-7676 financed from OP No.2 and OP No.1 further sold it to the complainant and all documentation in this regard were duly transferred in the name of the complainant as well. The complainant started paying amount of installments to OP No.2 in place of OP No.1. Complainant has been paying regular installments to OP No.2 through its employee Sh. Rajiv Kumar. The said employee Rajiv Kumar received an amount of Rs.80,000/- from the complainant, but he had not issued any receipt to the complainant about it. He assured the complainant that payment would be added in the account of the complainant. OP No.3/Manager of the OP No.2 telephonically assured the complainant regarding the addition of the amount already paid by the complainant to OP no.2 in his account. OP No.2 illegally started demanding huge amount of Rs.1,50,000/- from the complainant un-authorizedly. On 18.12.2009, OP No.2 with the help of SHO Police Station Mehta illegally seized the vehicle of the complainant and threatened him not to hand over the possession of the said vehicle unless  the complainant shelled out the amount of Rs.2 lac to OPs. The mother of the complainant moved a complaint to SSP Rural Amritsar, but to no effect. Complainant approached OPs on various occasions to deliver the possession of the vehicle, but they dilly- dallied over the matter. The complainant has filed the complaint directing the OPs to hand over the possession of the Scorpio vehicle in the same condition to the complainant, besides payment of compensation of Rs.50,000/- and Rs.11,000/- as costs of litigation.

3.      Upon notice, OP No.1 filed written reply by raising preliminary objections that complaint is baseless and misconceived and is not maintainable against OP No.1. The present complaint is outside the ambit of Consumer Protection Act 1986. The complainant has failed to show any damages on account of OP No.1 and hence complainant has no locus standi to file the complaint. It was further averred that complainant chose to make OP No.1 as party because father of OP No.1 moved an application on 06.07.2009 against the complainant and his brother to SHO Police Station Mehta for the offences committed by him. The mother of the complainant also moved an application against OP No.1 to SSP Rural, which was dismissed after a thorough enquiry. On merits, OP No.1 averred that he got financed the vehicle from OP No.2. He further averred that as per the agreement, the complainant paid Rs.1,60,000/- to OP No.1. It was further decided that complainant would be responsible to clear the installments due to OP No.2 towards the sale of the said vehicle i.e. 31.03.2006. From 31.03.2006 onwards, it was sole responsibility of the complainant to clear the installments. OP No.1 prayed for dismissal of the complaint by controverting the averments of the complaint.

4.      OP No.2 and 3 have filed their joint written reply and vehemently contested the complaint of the complainant. It was averred in preliminary objections by OP no.2 and 3 that complaint is wholly misconceived and baseless and is not maintainable. The complainant has no prima facie case against OP No.2 and 3 and has no locus standi to file the complaint. It was further averred that complainant is estopped by his act and conduct from filing the complaint. The complainant chose to make OP No.2 and 3 as parties because OP No.2 and 3 used to ask the complainant and OP No.1 to make the payment of installments of the vehicle, but complainant dilly-dallied over the matter. Instead of paying the installments, the complainant started claiming that he had already deposited substantial amounts in respect of his installments and produced certain receipts, which were ex-facie forged. OP No.2 and 3 allowed the complainant to deposit the entire outstanding loan amount just to avoid the litigation. On 26.02.2010, the complainant came in the office of OP NO.2 and 3 and he had agreed to sell the vehicle in question to that person. It was further averred that complainant deposited Rs.2,08,000/- for pre-closure of loan account with OP No.2 and 3, thereafter, the OPs closed the said loan account and issued the necessary NOC. The complaint was resisted on the above-referred grounds. Even on merits, OP No.2 and 3 further averred that receipts purported to be relied upon by the complainant were not genuine and were forged. The complainant eventually deposit amount of Rs.2,08,000/- towards entire loan amount  to OP No.2 and fore-closed and pre-closed account. OP No.2 and 3 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence the affidavit of Gurmeet Singh complainant Ex.C-1, copy of registration Ex.C-2, copy of agreement Ex.C-3, copies of cash receipts Ex.C-4 to Ex.C-43. As against it, OPs tendered in evidence the affidavit of Harbir Singh/OP No.2 Ex.R-1/A, report of SHO Ex.R-1 and Ex.R-2, copy of statement Ex.R-3, affidavit of Mohit Nanda, Attorney of Mahindra & Mahindra Ex.R-2/A, copy of resolution Ex.R-4, power of attorney Ex.R-5, cash receipts Ex.R-6 to Ex.R-11,  statement of account Ex.R-12, affidavit of Sudhir Kumar Manager of Mahindra and Mahindra Ex.R-3/A. On conclusion of evidence and arguments, the District Consumer Disputes Redressal Forum Amritsar, accepted the complaint of the complainant partly by directing the OP No.2 to hand over the possession of the vehicle (Scorpio) bearing registration no PB-02-AN-7676 to complainant in same condition, which was seized on 18.12.2009 and in case this vehicle was sold by OPNo.2 then to pay the amount of Rs.3 lac to the complainant along with interest @ 9% p.a. Dissatisfied with the order of the District Forum Amritsar, the instant appeal has been preferred against the same by OP No.2 now appellant.

6.      We have heard learned counsel for the appellants and have also examined the record of the case carefully. The plea of both the parties, as contained in their respective pleadings, has also examined by us with the assistance of the counsel for the parties. Undisputedly, OP No.1/Harbir Singh got financed the vehicle from OP No.2. OP No.1 sold it to the complainant and complainant undertook the liability to clear the sale amount to OP No.2, which financed this vehicle. The first point for adjudication is whether complainant would be a consumer of OP No.2 in this case. 

7.      The submission of counsel for the appellant is that there is no privity of contract between OP No.2 and complainant and hence complainant is not a consumer of OP No.2. We find that there is no force in this contention, as advanced by counsel for OP No.2 now appellant. Admittedly, the complainant is beneficiary of the vehicle with express approval of OP No.1, who originally got financed the vehicle and is beneficiary with the express approval of the original buyer of the goods and he would definitely be a Consumer. As per definition of the Consumer, as set out in Section 2 (1)(d) of the Consumer Protection  Act 1986, the contention of the financer/OP No.2 now appellant is repelled on this point by us. The bone of the contention between the parties pertains to certain receipts, which have been relied upon by complainant in this case towards the payment of the installments amounts. The copies of receipts relied upon by the complainant are Ex.C-4 to Ex.C-13 on the record. The contention of the counsel for OP no.2 now appellant is that they are forged the receipts. We find that when there is dispute of forgery then the Consumer Forum generally lays it hands off the controversy and relegates the parties to proper Forum for adjudication. Herein, we find that the arguments of the complainant that receipt book of the OP No.2  have been signed by one Rajiv Kumar their authorized signatory and there is no question of  forgery. Mere allegation of the forgery would not be sufficient to take way the jurisdiction of the Consumer Forum unless there is substance of the forgery on the face of it. We find that receipts are on the cash receipt book of OP No.2 and are alleged to be signed by Rajiv Kumar, the authorized signatory. The District Forum relied upon it by not accepting the submission of OP No.2 that they are forged on the face of it. It is very easy to make such allegations just with a view to oust the jurisdiction of the Consumer Forum, which has been enacted by the legislature to provide speedy relief to the consumers troubled by the service providers and the seller of the goods. While taking into account the above arguments, it was rightly held by District Forum that the vehicle of the complainant was got seized with force by OP No.2 and the vehicle is still with OP No.2 and it has yet not been released to the complainant. Even as per the version of OP No.2, the complainant had deposited the amount of Rs.2,08,000/- for pre-closure of the loan amount and NOC has been issued by OP No.2 to complainant. As per own pleading of  OP No.2,  the  complainant had already deposited Rs.2,08,000/- with OP No.2 and pre-closed account and thereafter NOC was issued to the complainant.

8.      The counsel for the appellant referred to law laid down in "Oriental Insurance Company Ltd… Vs. Munimahesh Patel, reported in 2006(4) Civil Court Cases Page 203," a judgment of the Apex Court that disputed factual position could not be adjudicated in summary proceedings before the District Forum and appropriate Forum is the competent authority. Similarly, another case law of "National Commission in Citimake Builders Pvt. Ltd… Vs. Samata Sahakari Bank Ltd , reported in 2012(4) CPR (NC) Page 376" is to the effect that where forgery is involved, matter be relegated to Competent Forum. We find that above referred authority would not be attracted to this case, because leaving aside the question of part of the amount already cleared by the complainant, which was received by Rajiv Kumar, Authorized Signatory for pre-closure of the loan and OP No.2 has already issued NOC in this regard as per admitted version of OP No.2 in the written reply. In this view of the matter, it would be futile to observe that this Consumer Forum would not be competent to try the case.

9.      Evidence on the record has been examined by us. Affidavit of Mohit Nanda, Attorney of Mahindra and Mahindra Finance Service Limited Ex.R-2/A is on the record. It is not disputed fact that Rajiv Kumar was not the authorized clerk to receive the payments on behalf of OP No.2. Copy of cash receipts Ex.R-6 to Ex.R-11 are on the record of OPs. OPs relied upon statement of account Ex.R-12 of the complainant in this regard. This is version of the complainant that he deposited the amount with Rajiv Kumar Clerk of OP No.2,  but despite receipt of the amount, he has not accounted for them. The contention of the complainant is correct because Rajiv Kumar authorized signatory was agent of the OPs and they are bound by the act of the agent being his principal. Once complainant has paid amount of Rs.2,08,000/-, then this payment will be considered to have been received by OP No.2 being principal of Rajiv Kumar. The OPs have received entire payment from the complainant Rs.2,08,000/- as per version of OP No.2 and also issued NOC in this regard as pleaded in para no.3 on merits of the written reply by OP No.2.

10.    In this factual scenario of the matter, the District Forum has observed correctly that vehicle was seized by OP No.2 through the instrumentality of the police with regard to payment of the balance installments. The complainant subsequently deposited Rs.2,08,000/- in the office of OP No.2 for pre-closure of the loan amount and NOC was accordingly issued , which fact has not been disputed by the complainant as well. The averments of the OPs are that receipts are forged and vehicle was taken into possession by OP on 18.12.2009 through the instrumentality of the SHO Police Station Mehta. OP No.2 and 3 had not specifically disputed this fact in their written reply. The report of SHO, Ex.R-3 may also be referred to in this regard. In view of the circumstances of the case, District Forum directed OP No.2 to hand over the possession of the vehicle to the complainant in the same condition, in which it was forcibly seized on 18.12.2009 and in case it was already sold by OP No.2 then to pay Rs. 3 lacs i.e. approximately  depreciated value of the vehicle to the complainant along with interest @ 9% p.a. We do not find any illegality in the order of the District Forum on this point calling for any interference threin.  We affirm the order of the District Forum in this appeal.

11.    As a result of our above discussion, appeal of the appellant is found without any merit and same is hereby dismissed.

12     The appellant had deposited an amount of Rs.25,000/- with this commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of cross cheque/demand draft after 45 days from receipt of copy of this order.

13     Arguments in this appeal were heard on 20.05.2015 and the order was reserved. Now the order be communicated to the parties.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                               (VINOD KUMAR GUPTA)

                                                                        MEMBER

 

                       

                                                           (HARCHARAN SINGH GURAM)

                                                                          MEMBER

 

May  26,   2015.                                                             

(ravi)