Per Shri P.N.Kashalkar – Hon’ble Presiding Judicial Member.
This appeal has been filed by the original complainant arising out of complaint no 110/2010 which has been dismissed by the District Consumer Forum, Satara on 30/06/2010.
The complainant has filed consumer complaint no. 110/2010 against the Man Taluka Kharedi-Vikri Sangh Ltd., Dahiwadi and others. The complainant’s deceased father has kept some amount towards the opposite parties in terms of fixed deposit. The complainant’s father was died on 30/12/2002 and her mother is also dead. Thereafter other than complainant, there are no legal heirs to the deceased Isaq Jangibhai Shaikh. It was pleaded by the complainant that after her father she is the only legal heir. It was also pleaded that the opposite parties were paid certain amount to the complainant after the death of her father. But the maturity amount had not been paid. The maturity amount with interest is of `1,53,794/-. Complainant demanded the said amount towards the opposite parties, but the opposite parties avoided. Therefore, the complainant sent legal notice through her advocate on 1/10/2009. Even after legal notice served through her advocate, he had not paid the amount. Therefore, she has filed complaint against the Chairman, Vice-Chairman and Manager for recovery of the said amount along with `10,000/- towards mental agony and `10,000/- towards the cost.
In response of the notice of the forum below, opposite parties has filed their written statement and contested the complaint. According to the opposite parties, forum is not having jurisdiction to entertain the complaint. It also pleaded that the complaint is barred by limitation. So also it is pleaded that, since the applicant is Muslim, she could not be legal heir of the deceased depositor. They also challenged the power of attorney given to Man Taluka Kharedi-Vikri Sangh Ltd. Dahivadi. The signature on the said power of attorney is bogus & fraudulent. Hence the complaint of the complainant should be dismissed.
Upon hearing both the counsel and perusal of the document placed on record, forum below held that the affidavit filed by the complainant in support of the complaint is of power of attorney holder and the forum below was of the view that even though the power of attorney holder is Shri Mahiboob Musabhai Shaikh and the complaint was filed by the complainant, the affidavit must be filed by the complainant. Forum below relied upon Apex Court judgment in “Janki Vasudeo Bhojowani & anr. v/s Indusind Bank Ltd. & others (AIR 2005 SC 439 ). This ruling of the Apex Court clearly point out that the power of attorney is not competent person to prove the complaint. Therefore, forum below brushed aside the power of attorney filed by the complainant and thus the complaint came to be dismissed.
Aggrieved by the said order, Appellant/original complainant filed this appeal.
We heard submission of the parties. We are finding that, the order of dismissal is not proper. The forum below should decide the case on merit. The forum below made shortcut procedure and simply pronounced the judgment. Baby Johra Nazir Mulani is a daughter of original depositor. In the circumstances forum below should have asked the complainant to file her own affidavit by way of evidence. We set aside the order passed by the forum below by allowing the appeal and remand the complaint No. 110/2010 back to the District Forum for permitting the complainant to file her affidavit. Hence, we pass the following order.
ORDER
1. Appeal is allowed. Judgment and Order passed by the District Forum in complaint no. 110/2010 is quashed and set aside.
2. Complaint no. 110/2010 remanded back to the District Consumer Forum, Satara. On remand District Forum shall allow the complainant to file her affidavit and then decide the case on merit within the period of 3 months.
3. Both the parties are directed to appear before the District Forum on 21/02/2011.
4. No order as to cost.
5. Copies be furnished to the parties.
