Punjab

StateCommission

A/11/1486

M/s Tricity Autos - Complainant(s)

Versus

Jagdeepak Singh - Opp.Party(s)

S.R.Bansal

10 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1486 of 2011

 

 

                                                Date of Institution: 05.10.2011

                                                Date of Decision : 10.08.2015

 

1.      M/s Tricity Autos, Maruti Dealer, Patiala Highways, Near   Nabha Sahib Gurudwara, Zirkpur District Mohali

2.      Rita Garg w/o Sh. Rajesh Garg, both through authorized   signatory Mr. Dhruv Garg.

                                                                                                                                                                                                                                                                                                                                                                     …..Appellant/Opposite party no.1 and 3

 

                                      Versus

 

1.      Jagdeepak Singh Bedi S/o Sh.Narwant Singh, r/o  2123,         Phase-10, Mohali

 

                                                                 ..Respondent/Complainant

 

2.      Mohit Manav S/o Sh. Jagdish Rai, R/o 3462/1, Sector 37-D,    Chandigarh.

 

                                                      …Respondent/Opposite party no.4

 

 

First Appeal against order dated 16.09.2011 passed by the District Consumer Disputes Redressal Forum,  Mohali

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                     :       Sh.Sukam Gupta, Advocate  

          For the respondent no.1          :     Sh. M.S Sodhi, Advocate

          For the respondent no.2         :     None.

 

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

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite party no.1 and 3 in the complaint) have directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint), challenging order dated 16.09.2011 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing the OP nos.1 to 3 to refund the amount of Rs.6,12,436/- with interest thereon @ 9% p.a w.e.f 19.09.2009 till the date of actual refund, besides Rs.1 lac as compensation for mental harassment and Rs.10,000/- as costs of litigation.  The instant appeal has been preferred against the same by OP no.1 and 3 now appellants in this appeal.

2.      The complainant Jagdeepak Singh Bedi has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP, on the averments that he wanted to purchase a Maruti Swift Car (Diesel) on 31.07.2009 from Maruti Car Udyog Dealer of Tricity Auto and opted to purchase Swift Car bearing Engine No.D13A-1 253089, Chasis No. MA3FKEBIS00455735, Model 2009, vide invoice no.TA 0314/31.7.2009 for Rs.5,04,928/- by raising finance from State Bank of India Chandigarh. The complainant wanted to purchase another vehicle  Maruti Swift Desire VDI and took the quotation from OP, who directed his employee  William Massih to issue quotation and he gave quotation no.011 dated 25.08.2009 issued to the complainant for a sum of Rs.6,12,436/- OP no.2/Dhurv Garg assured the complainant to get sanctioned the loan and to get issued the demand draft in the name of Tricity Auto for purchase of the car. The complainant applied for loan as per quotation and prepared draft no.36689 dated 19.09.2009 for Rs.6,12,436/-  in favour of Tricity Auto Patiala Highway zirkpur District Mohali and hypothecation letter dated 19.09.2009 was issued in favour of Tricity Auto Patiala Highway Zirkpur District Mohali for Swift Desire VDI Car by the bank. OP no.2/Dhurav Garg is authorized dealer of Maruti Dealership, who ran the business at Zirkpur near AKM Resort and projected him as Managing Director of Tricity Autos. Sh. Ajay Kapur is the newly appointed General Manager of Tricity Autos, who is responsible for its management on the day to day affairs. William Massih is the Sale Executive of Tricity, who is dealing with the booking of the said vehicle from the customer. The complainant handed over the draft bearing no.36689 dated 19.09.2009 for a sum of Rs.6,12,432/- and hypothecation letter dated 19.09.2009 issued by the bank to them, as per direction of OP No.2 in the presence of one Manjit Singh and Ajay son of the complainant. OP No.2 assured to deliver the supply of the vehicle i.e. Maruti Swift Desire Car very soon. OP No.2 adopted delaying tactics to deliver of the car to the complainant. On enquiry about encashment of the demand draft from the bank, it was confirmed by the complainant that it has been encashed on 23.09.2009. OP No.1 to 3 in connivance with each other delivered the Maruti Swift Desire Car to above OP No.4 deliberately against complainant's demand draft. OP No.1 and 3 had knowledge regarding the demand draft for a sum of Rs. 6,12,432/- in their account given by the complainant, which was encashed by them. OP No.4 /Mohit Manav firstly gave booking cheque no.PNB/50085 dated 16.09.2009 for Rs.4,00,000/- against receipt no.3150 dated 17.09.09 to Dhurv Garg/OP No.2 , which was encashed in the account of Tricity, vide ID No.M137179 dated 17.09.2009.  The price of the above vehicle was  Rs.6,12,436/-, which was to be paid by OP No.4. OP No.4 suffered a statement before the police having made payment of Rs. 2,12,436/- and no other draft was handed over to OP No.2/Dharuv Garg by him. It was further contended in the complaint that OPs in connivance with each other got the cheque encashed of Mohit Manav/OP No.4 by impersonation of his name and gave ID proof by forging driving license by impersonation by fixing photo on driving license. Police was reported about this matter by the complainant accordingly. The complainant has, thus, filed the present complaint directing the OPs to pay the amount of Rs. 10 lac to him along with interest for the embezzlement of the price of the demand draft of the car deposited by him with the OPs.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. It was pleaded by the OPs that the complainant approached the police and lodged FIR no.269 dated 16.09.2010 under Sections 406, 420, 120(b) IPC at Police Station Zirakpur about this matter. OP No.1 to 3 promised to return the booking price of Rs.6,12,436/- but to no effect. The car was delivered to OP No.4 by OP No.1 on the basis of the payments received from him and excess amount was released by OP No.1. Only OP No.4 is bound to explain as to from where the demand draft of Rs.6,12,436/- was collected. They have denied this fact that any such conversation regarding the deal ever took place between the complainant and OP No.2 and it is the duty of their representatives to have the direct conversation with the customers. It was further averred that William Masih has since left their service. During the police investigation, he admitted that the fraud was committed by him and hence arrived at a compromise with the complainant by way of affidavit dated 23.06.2010, copy of which is Ex.R-7 annexed herewith. It was further averred that William Masih was responsible to complainant having committed the fraud in his personal capacity and for his acts of omission and commission, no deficiency of service could be attributed to them. OP No.4 had initially deposited a sum of Rs.4 lac only through a cheque, as per price of the car. It was further averred that complainant was not asking for the refund of the amount of his draft because it was never handed over by him to their staff and he was claiming only compensation, which this Forum is not empowered to grant. The complainant should file a regular civil suit for recovery. OPs controverted the other averments of the complainant made in the complaint and, thus, prayed for the dismissal of the present complaint.

4.      The complainant tendered in evidence, the affidavit of complainant Ex.CW-1/1 along with copies of the documents Ex.C-1 to Ex.C-5. As against it, OPs tendered in evidence the affidavit of Dhurv Garg/OP No.1 Ex.RW-1/1, affidavit of R.K.Sharma Supervisor of OP No.5 Ex.RW-5/1 along with copies of documents Ex.R-1 to Ex.R-17. Affidavit of Mohit Manav/OP No.4 Ex.RW-4/1. On conclusion of evidence and arguments, the District Forum, Mohali, accepted the complaint of the complainant directing the OP nos.1 to 3 are directed to refund the amount of Rs.6,12,436/- with interest thereon @ 9% p.a w.e.f 19.09.2009 till the date of actual refund, besides Rs.1 lac as compensation for mental harassment and Rs.10,000/- as costs of litigation. Dissatisfied with the order of the District Forum Mohali dated 16.09.2011, the OP no.1 and 3 now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the parties at considerable length as none appeared for respondent no.2 in this appeal at the time of arguments for the last many dates. We have examined the documents on the record.

6.      The submission raised by counsel for the appellants before us is that complex matter is involved in this case and matter needs to be relegated to the civil court for its adjudication. By now, matter has been decided by the National Commission and by the Apex Court in many authorities that on the mere asking of the parties, matter cannot be referred to the Civil Court because the Consumer Forums are presided over by retired Judicial Officers and they are competent to decide such type of matters. From the factual scenario of the case, we are of this view that matter in hand can be conveniently decided in the summary proceedings by this Forum. We have examined the evidence on the record carefully with the able assistance of counsel for the parties in this case. Undisputedly, William Masih and Ajay Kumar, alleged to have committed embezzlement of the amount of Rs.6,12,436/- , as deposited by the complainant with sale executive of OP No.1. OP No.4/Mohit Manav sought purchase of the similar car from OP No.1.  Mohit Manav had not paid the entire price of the car and rather deposited cheque for Rs. 4 lacs instead of total amount of Rs.6,12,436/- in this case, as price of the vehicle. Generally, a person would not deposit less price of the vehicle with the dealer. OP No.1 deposited the amount of Rs.2,12,436/- only with the OPs instead of total price of the vehicle as Rs.6,12,432/-. Mr. William Masih was the Sales Executive of OP No.1 and he received the demand draft from the complainant of Rs.6.12,436/-. This demand draft has been encashed in the account of the OPs, vide Ex.C-4 on the record. The OPs sold the car to OP No.4 instead of selling it to the complainant despite having encashed demand draft of Rs.6,12,436/- from the complainant, which was the total price of the car. The complainant lodged the FIR against OPs. Mr. William Masih suffered his affidavit Ex.R-7 on the record that he agreed to return the amount of Rs.5,60,000/- through installments along with interest. Vide statement of account Ex.C-1, the demand draft of Rs.6,12,436/- was in favour of OP No.1 and it has been corrected in the account of the OPs on 23.09.2009. The submission of the appellant is that William Masih was individually responsible for the defalcation of the amount deposited through demand draft by the complainant with him. We do not agree with this submission raised by the appellants before us. William Masih was pivotal employee of the OP and he was the agent of the OPs and the principal is bound by the acts of the agents. Consequently, we overturn this submission of the appellants that William Masih would be individually responsible for the demand draft of Rs.6,12,436/- to the complainant only. Generally, agent could have no guts to embezzle such large amount without the connivance of the principal. The demand draft was  in the name of OP no.1. OP no.1 is certainly a service provider to complainant and complainant is consumer of OP. We conclude that OP No.1 to 3 are guilty of unfair trade practice and deficient service to the complainant. Once the complainant has paid the demand draft in favour of the dealer, which has been encashed for the full price of the booked car, therefore, there is no excuse or alibi with the OPs to deny the delivery of the car to the complainant. Copy of the FIR lodged by the poor consumer is Ex.C-5 on the record in this regard. Once, it is proved that complainant paid the demand draft of the entire price of the car and it has been received by the authorized agent of the dealer on behalf of principal and has been duly encashed in the account of the dealer, then, there is no  question of denial of delivery of the car to the complainant. It is for principal to recover the amount from the agent and principal cannot deny the delivery of the car to the complainant, once the amount of the car has been deposited in the account of the authorized dealer through demand draft by the complainant. We are in agreement with the findings of the District Forum, which are in consonance with the pleadings and evidence on the record. Counsel for the complainant could not point out any legal infirmity or material irregularity in the order of the District Forum calling for any interference therein. We reject the submission of the appellants, as they sought to be absolved of this liability on technical ground, despite the fact that the price of the car has been received in their account on behalf of the complainant.

7.      As a result of our above discussion, we affirm the order of the District Forum Mohali dated 16.09.2011, under challenge in this case and resultantly the appeal filed by the appellants/Opposite parties no.1 to 3 is ordered to be dismissed.

8.      The appellants had deposited the amount of Rs.25,000/- and Rs.7,00,000/- with this Commission in the appeal. Bothe these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. Remaining amount be paid within 45 days time from the date of receipt of this order by the appellants to the complainant.

9.                Arguments in this appeal were heard on 06.08.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

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

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 10 ,  2015.                                                              

(ravi)