BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 347 of 2015
Date of Institution: 28.5.2015
Date of Decision: 7.6.2016
Kanwaljit Singh aged 45 Years S/o Malook Singh R/o Village Bhikhariwal, Tehsil & District Gurdaspur
Complainant
Versus
- Jaswinder Singh S/o S. Mohinder Singh (Dealer) C/o Simran Auto, 5-Batala Road, Near Nanda Hospital, Verka District Amritsar
- Rinku son of Gurnam Singh son of Kirpal Singh resident of VPO Bhikhariwal, Tehsil & District Gurdaspur
Opposite Parties
Complaint under section 11/12 of Consumer Protection Act, 1986
Present: For the Complainant : In person
For the Opposite Party No.1 : Sh.G.S. Nagra,Advocate
For Opposite Party No.2 : Ex-parte
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Kanwaljit Singh complainant has brought the instant complaint under section 11 and 12 of the Consumer Protection Act, 1986 on the allegations that opposite party is a dealer of M/s. Simran Auto Agency for selling the motorcycles etc at Verka District Amritsar and one Rinku son of Gurnam Singh has been working in the said auto agency. Said Rinku, employee of the opposite party approached the complainant to purchase Hero Honda Motorcycle, Dream New from the said Auto Agency. The complainant agreed to the proposal of the said employee namely Rinku and accordingly, complainant made the payment of Rs. 57000/- for purchasing the above motorcycle alongwith its accessories on 16.2.2014. The complainant requested to said Rinku to bring the new motorcycle for which he has received the full payment from the complainant already but he remained putting off the matter on one pretext or the other . At last , Rinku asked the complainant to bring the motorcycle from the agency itself and stated that he had handed over the amount to the opposite party being the dealer of Auto Agency. Accordingly, the complainant brought the Hero Honda motorcycle bearing Temp. No. PB-02-BU-9744 on 15.5.2014 vide delivery challan No. 34 issued by the agency. It is duly mentioned in the delivery challan that the said motorcycle was purchased by the complainant on cash payment. Opposite party No.1 being the dealer of the said auto agency assured the complainant that they will hand over the cash memo/original bills of motorcycle to the complainant through the abovesaid Rinku, opposite party No.2 , who is employee of opposite party No.1. But they have failed to send the cash memo/original bills to the complainant so far. Firstly, the opposite party No.1 had been putting off the matter on one pretext or the other but ultimately, on such persistence of the complainant, opposite party No.1 flatly refused to give the cash memo/original bills to the complainant . Rather they openly threatened the complainant that he will take back the custody of the said motorcycle from the complainant forcibly with the help of their agents, representative etc. on 16.2.2015, opposite party No.1 alongwith abovesaid employee Rinku, opposite party No.2 and others two unknown persons came to the house of the complainant and they all were out and out to take the custody of the said motorcycle forcibly and illegally from the complainant. When the complainant objected to it, they all man handled the complainant and also threatened to kill him and to take the motorcycle forcibly. However, in the mean time some persons from the neighborhood got collected on the spot and the opposite party alongwith his associate, agents etc ran away from the spot . The complainant required the original cash memo/original bills of the abovesaid motorcycle to get RC prepared from the office of the concerned DTO and without original bill, the RC cannot be got prepared. In the complaint, complainant has sought the following reliefs:-
i) Opposite party No.1 may be directed to hand over the cash memo/original bills of the abovesaid vehicle to the complainant immediately.
ii) To pay compensation of Rs. 50000/- to the complainant for suffering mental pain, agony, harassment, inconvenience at his hands ;
iii) To pay the cost of proceedings Rs. 10000/-.
iv) Any other relief to which the complainant is found entitled to under law and equity.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter-alia that the complaint is nothing but a blatant and flagrant abuse of the process of law and the same has been filed with an ulterior motive to harass and humiliate the replying opposite party so that it can be pressurized to succumb to his illegitimate and illegal demands ; that the present complaint is not maintainable in the eyes of law and the same is liable to be summarily dismissed. The complainant cannot be allowed to take advantage of his own wrongs and defaults. The allegations and the story made by the complainant in the complaint are baseless, concocted and without any truth whatsoever ; that present complaint is bad for mis-joinder and non joinder of necessary party; that the complainant has not come to the court with clean hands and he has suppressed the true and material facts from the notice of this Forum and as such he is not entitled to any relief from the Forum ; that no cause of action has arisen in favour of the complainant and against the opposite parties to file the present complaint. On merits, it is denied that said Rinku ever approached the complainant for the sale of Hero Honda Motorcycle Dream Neo, as alleged. It is further denied that the complainant has made the payment of Rs. 57000/- in cash for the purchase of the said motorcycle alongwith accessories on 16.2.2014 . The allegations are totally false and mischievous. Infact the complainant with fraudulent intentions to cheat the opposite party through said Rinku an employee of opposite party to purchase the Hero Honda Motorcycle Dream Neo. Opposite party considering the complainant to be a genuine person and resident of the village of said Rinku gave the motorcycle to him on the promise of payment of the sale price on the next day. But the complainant cheated the opposite party with false inducement of payment of the sale price on the next day. The motorcycle in question has illegally retained by the complainant without payment of the sale price by fraudulently obtaining its possession from the opposite party. Opposite party has no known if said Rinku linger on the matter on one pretext or the other. But it is specifically denied that Mr.Rinku ever made any payment of sale price of the motorcycle to the opposite party. It is specifically denied that opposite party promised to send the cash memo/bills through Rinku. The cash memo/bills can only be issued on the payment of the sale price so without payment of the sale price of the motorcycle , the complainant cannot compel the opposite party to hand over the cash memo/bills pertaining to the motorcycle in dispute. Infact the opposite party is victim of fraud and cheating committed by the complainant with him by taking away the vehicle in question without making the payment of the sale price. A prayer for dismissal of the complaint with cost was made.
3. Opposite party No.2 despite due service did not opt to appear and contest the complaint and as such he was ordered to be proceeded against ex-parte.
4. In his bid to prove the case complainant has tendered into evidence his affidavit Ex.C-1, copy of delivery challan dated 15.5.2014 Ex.C-2, copy of legal notice Ex.C-3 and closed the evidence.
5. To rebut the aforesaid evidence,Sh.G.S.Nagra,Adv.counsel for opposite party tendered into evidence affidavit of Sh.Jaswinder Singh Ex.OP1, copy of legal notice Ex.OP2, copy of judgement Ex.OP3 and closed the evidence on behalf of opposite party.
6. We have heard the complainant in person and ld.counsel for opposite party No.1 besides going through the evidence as well as written synopsis of arguments submitted on behalf of opposite party No.1.
7. From the appraisal of the evidence on record, it becomes evident that the complainant approached opposite party No.1 through Rinku, opposite party No.2 for purchasing Hero Honda Motorcycle Dream Neo from Auto Agency of opposite party No.1. It is the case of the complainant that Rinku belonged to the village of the complainant and he made a payment of Rs. 57000/- i.e. full price of the motorcycle in dispute alongwith accessories on 16.2.2014 to Rinku. Rinku promised to hand over the motorcycle in dispute to the complainant alongwith all the documents in due course. But however, said Rinku did not fulfil his promise. It is the admitted case that on 15.5.2014 vide delivery challan No. 34 Ex.C-2 issued by the agency, complainant took Hero Honda Motorcycle bearing Temporary No. PB-02-BU-9744 from opposite party No.1. It is the case of opposite party No.1 that no payment of the sale price of motorcycle in dispute has ever been paid either by Rinku or by the complainant and as such it was retaining the cash memo/bill and other documents relating to the motorcycle in dispute with it. But however, once it is proved that on 15.5.2014, the motorcycle in dispute bearing Temp. No. PB-02-BU-9744 has been delivered by the agency to the complainant , it will have to be presumed that the motorcycle was handed over to the complainant on the basis of the payment which may be part or full or deferred payment. But since the opposite party No.1 has taken a definite stand that no payment has been made or promised to be made, it shows that the stand taken by opposite party No.1 is totally unreliable and is devoid of any merit. Even if any amount was due or payable on account of the sale of the motorcycle in dispute, even then the opposite party No.1 cannot retain the papers i.e. cash memo/original bill of the motorcycle in dispute . The only remedy lay with them is to file a suit for recovery in a court of law.
8. Consequently, instant complaint succeeds and opposite party No.1 is directed to handover the documents of the motorcycle in dispute i.e. cash memo/original bill etc. to the complainant within one month of the receipt of the copy of this order and the complaint stands allowed accordingly. If no compliance is made within the stipulated period, the complainant shall be at liberty to approach this Forum under section 27 of the Consumer Protection Act. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 7.6.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
