IN THE   DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION, JAJPUR.

                                                       Present:1.Shri Pitabas Mohanty,I/C President

                                                                      2. Miss Smita Ray, Lady Member.

                                       Dated the 18 th day of August-2021

          C. C. Case No. 50/2019.

M/S S.N. Auto Parts, Through Proprietor,

Ashit Kumar Lenka, S/O Late. Chakradhar Lenka,

At-Andola, P.O- Sridharpur

Dist. -Jajpur.                                                                                                         

Present business at-Jageswarpur,

Near Bus Stand, Po/Dist.-Jajpur.                                                                       …………….. Complainant.

                                                      (Versus)   

1.   Managing Director, Hilux Auto Electric Pvt. Ltd.,

      Plot No-196, Sector-3, IMT Manesar, Gurugram,

      Haryana-122050.

2.  Dillip Chaudhury, Area Manager, Odisha Hilux Auto Electric Pvt. Ltd.,

      At/Po-Chandikhole, Near Bus Stoppage, Dist.-Jajpur, Odisha, Now residing,

      At/Po-Jhinkiria, 42 Mouza, Near Tarini Maa Mandir, Cuttack Sadar,

      Pin-754112.   

3. Kalim Mahamad, Supervisor of Hilux Auto Electric Pvt. Ltd.,

    At-Rani-Ramachandrapur, Medical Road, Po/Dist.-Jajpur,

    Now residing  At-Routrapur, Po-Kalapada, 42 Mouza, Cuttack-754112.

4. Branch Manager, Canara Bank, Jajpur Town Branch,

    At/Po/Dist.-Jajpur.                                                                                                    ……..O.P. Parties.

For the complainant  :                          Sri R.K.Ghadei, Sri B.Ch.Rout,Sri S.S.Samal,Advocates.

For the Opp.Parties No.1:                    Miss I.Mohanty, Sri A.Bhaynu, Advocates

For the Opp.parties No.2  ,3 and 4           None                                                                                                                     

                                                                                                                                         Date of order:  18. 08. 2021.

(2)

1. More over the O.p.no.1 though has credited Rs.1,50,568/- in the account of the petitioner but as against such credit the petitioner  has not received any two wheeler parts from O.P.no.1.

10. Apart from the O.p.no.2 though has received the two wheeler parts on behalf of S.N.Auto parts worth of Rs. 2 lakh from O.P.no.1 odd but practically O.p.no.2 has not delivered the items to the petitioner though the petitioner has paid Rs.25,276/- as transporting charge.
11. Similarly O.P.no.2 though has received Rs.26,730/- from the petitioner towards the cost of two wheeler parts but the same has not been credited in the A/C of the petitioner.

Accordingly it is stated by the petitioner that in the above cited way though the petitioner has paid to  O.P.No.1 through O.P.no.2 and O.p.no.4 and at present there is items worth of Rs.5,00,000/- ( five lakh) available in the shop of the petitioner but it is the matter of great regreat that O.p.no.1 at present demanding Rs.12,75,813/- as outstanding dues against the petitioner which is not only illegal but also not sustainable in the eye of law as well as coming within the purview of deficiency in service as well as unfair trade practice for which the petitioner has filed the present dispute for redressal of his grievance by this commission with the prayer to direct the O.P.no.1 to adjust the above payment made by the petitioner against the outstanding amount as well as award compensation of Rs.50,000/- for mental agony and harassment.

            After appearance the O.P.no.1 has filed the reply/ written version denying the allegation of the petitioner .  The O.P.no.2 , 3 and 4 neither appeared nor filed the counter and the notice issued against O.Pno.2 and 3 returned as unserved.

As per written version / reply , the O.p.no.1 has taken the following stand :

The present dispute is not maintainable since the petitioner was taking the items for resale purpose in view of the observation of U.P power Corporation Ltd  & Others Vrs. Anis Ahamad.

As such  the petitioner is not a consumer since the petitioner is running the business for commercial purpose. According to O.p.no.1 , the O.P.no.2 ( Dillip Chaudhury) was an employee  who has resigned in the month of November-2018 . Further it is stated by O.P.no.1  that the petitioner has  opened the shop in the year 2000 as per agreement but not in the year -2018. As regards the payment made by the petitioner as per para-4 of the complaint  petition ,the O.p.no.1 has denied the same indicating  having no knowledge and at present Rs.14,62,367/- is due against the petitioner as per ledger account . In view of the above facts the present dispute is liable to be dismissed

Owing to  the contradicting views of both the parties after hearing we have come across with the record in details . After perusal of the record  as per bank statement of A/C of Canara Bank ( O.P.no.4) it is observed that the petitioner has remitted the following amount to O.P.no.1 though Dillip Chaudhury

1. Rs.50,000/- by NEFT through O.P.no.4 on 17.05.18
2. Rs.10,000/- by NEFT through O.P.no.4 on 01.18.18
3.  Rs.40,000/- by NEFT through O.P.no.4 on 31.07.18 .

     As per statement of A/C  from 01.04.2018 to 08.12.2018.

2.In addition  to it as per reference No.2018093001 though O.P.no.1 has credited Rs.4,15,388/- in the account of the petitioner on 13.10.2018 towards C D and TOD the 1^st quarter and 2^nd quarter but practically the above amount has not been credited.

3. Further the payment of Rs.1,50,568/- paid by the petitioner on dt.12.10.2018   though has been credited  in the petitioner’s outstanding A/C  but the petitioner has not received the Auto parts of Two wheeler of the above amount .

4. Similarly the O.p.no.1 vide references No.2018101501 dt. 15.10.2018 though has debited Rs.2,97,444/- towards returned of two wheeler parts from the outstanding amount of the petitioner but the freight charge of Rs.25,276/- has not yet been debited from the outstanding amount of the petitioner.

5. Like wise as per the written version of O.P.no.1, though the outstanding amount is Rs.14,62,367/- but the statement of A/C it  indicate the outstanding amount is Rs.12,75,813/-.

6. Like wise as per written version of O.p.no.1 the outstanding amount of the petitioner is Rs.14,62,367/- and as per statement A/C the outstanding amount has been indicated as  Rs.12,75,813/- but practically the outstanding amount against the petitioner comes to

Rs.11,64,923/- being returned of the goods as out of the order amounting to Rs.2,97,444/- which is clarified by letter dt. 15.10.2018.

7. .More over Dillip Chaudhury has also received Rs.6730/- towards transportation charge as per mail of O.p.no.1 dt. 30.07.2018 and the amount has not yet been debited from the outstanding A/C of the petitioner.

8. Similarly  there are unused items worth of Rs.15,000.00/-( fifteen lakh)  laying with the petitioner which has been sent by O.P.no.1  to the petitioner without any order from the side of the petitioner.

9. As regards 3 cheques  which are taken by O.p.no.1 from the petitioner are only for security purpose and the same can be used by O.P.no.1 in case the petitioner did not clear the outstanding amount of O.Pno.1 but in the present case as observed the petitioner has paid the outstanding amount of Rs.11,64,923/- through O.P.no.2,3 and 4. Accordingly the O.P.no.1 can not deny the payment made by the petitioner through O.P.no.2 and 4  ,in view of the observation of Hon’ble National Commission reported in 1998(1) CLT-212-N.C wherein it is held that :

“Hospital is responsible for the negligence of his employee since O.P.no.1 himself admits  in the mail dated 02.11.2018 that Dillip Chaudhury (O.P.No.2) is the employee of O.p.no.1 “.

10. More over transportation fee of Rs.6730/- and glow sign charges of Rs.10,000/- and advance tour and conveyance charges of Rs.50,000/- in toto Rs.67,630/- paid to Dillip Chaudhury (O.P.No.2) has not been  adjusted from the outstanding amount of the petitioner.

11. It is also not our of place to clarify that out of 3 cheques which were kept as security through O.P.no.1 presented 2 cheques for encashment and the same was returned due to insufficient of fund. In the mean time in view of the petition U/S 13(3b) from the side of the petitioner this commission vide order dt.27.11.20 directed O.p.no.1 that the 3 cheques  to be stored properly till disposal of the present dispute.

The above observation clearly go to establish that the petitioner has able to establish his case against O.P.no.1 since the petitioner has paid Rs.8,37,519/- to O.P.no.1 as against the outstanding amount of Rs.11,64,923/- and the petitioner is liable to pay only Rs.3,27,404/- to O.P.no.1.

                                                                        O R D E R

            The dispute is allowed against O.P.no.1 with direction that the O.P.no.1 will adjust Rs.8,37,519 /- paid by the petitioner against the outstanding amount of Rs.11,64,923/- as well as the O.P.no.1 is directed to return back the unused items amounting to  Rs.15,00,000/- ( fifteen lakh) which is laying with the petitioner and the amount of Rs.3,27,404/- to which the petitioner is liable to pay shall be adjusted in the unused items amounting to Rs.15,00000/-( fifteen lakh)  and the balance amount after adjustment shall be paid to the petitioner. The O.P.no.1 also directed to return the three cheques to the petitioner . The order shall be complied within one month after receipt of this order, failing which the O.p.no.1 shall be liable to pay Rs.50,000/- as compensation to the petitioner . No cost.

            This order is pronounced in the open Forum on this the18 day of August,  2021 under my hand and seal of the Forum.