(Sri D. Shankar Rao, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to release the vehicle Passion Pro two wheeler or return of the amount of Rs.44,000/- along with interest, to pay compensation of Rs.20,000/- towards mental agony and deficiency of service, and Rs.10,000/- towards costs of the complaint.  

2. The complaint is originally filed on 20-12-2012 against OP-1.  During pendency of the complaint, the OPs.2 and 3 are impleaded as per the orders passed in I.A.No.32/2013 dated 9-5-2013. Briefly stated that the OP floated ‘Passion Pro’ two-wheeler scheme under the name and style “Perfect Enterprises Reliable Auto Finance & Consultants” at Waqf Complex in Mahabubnagar. The scheme period is 37 months and every member has to pay Rs.1,000/- per month as per terms and conditions.  After joining the scheme the members shall pay the down payment of Rs.30,000/-. The OP will arrange the ‘Passion Pro two-wheeler vehicle’ within 40 days after receipt of said down payment.  The father of the complainant Mohd. Jahangir and OP are well known to each other.  The complainant being minor and under the guardianship of her father has joined the scheme on 5-11-2011 as a member and she was allotted lucky No.264 on down payment of Rs.27,236/-. Thereafter the father of the complainant has paid 7 monthly installments regularly at Rs.1,000/- each, but the OP has passed receipts only for down payment and one month installment. The father of the complainant requested the OP on many time for releasing the vehicle and issuance of balance receipts, but the OP postponed the matter. The father of the complainant has paid regular installments and also given a hand loan of Rs.10,000/- to OP due to both being the same locality and well known to each other.  The OP has stated that he will adjust the hand loan amount for future installments of the scheme but postponing the release of vehicle on some pretext. The father of the complainant has paid amount with a fond hope but the same is futile.  It is nothing but unfair trade practice and cheating.  The father of the complainant has suffered mentally and financially due to the attitude of OP. The father of the complainant got issued a legal notice on 17-10-2012 to OP for which he gave reply and pleaded false pleadings that he is not a partner and no way concerned with Enterprises. Hence this complaint.

3. The OP-1 filed his counter and stated that he and father of complainant together approached one Mandakari Rajesh who along with Syed Imran used to run the firm namely ‘Perfect Enterprises’ for employment.  The OP-1 was selected by said Rajesh as Manager of the shop and he worked as collection boy from August, 2011 to November, 2011 and thereafter the firm was closed. The said fact is also known to the father of the complainant. As the father of said father of complainant died in his childhood, he developed in the house of OP-1’s father and his brothers as he being a son’s son of paternal aunt of OP-1.  The father of complainant has paid Rs.27,336/- plus Rs.1,000/- on 5-11-2011 and later what he paid not known to OP-1 as the firm is closed.  The allegation that the father of the complainant paid Rs.10,000/- to OP-1 as hand loan is totally false.  It is true that the Lawyer’s notice dated 17-10-2012 is received and replied to it stating that the OP-1 not related to the firm and nothing liable to pay to the father of complainant. Inspite of that the present complaint is filed without showing original partners of the firm. Thus the case is liable to be dismissed. No employee of firm can be fixed for the service of the owners/partners of the firm. The documents filed by father of the complainant reveals that the OP-1 collected the amounts only as employee in the firm. The OP-1 has denied all other allegations. The complaint is liable to be dismissed with costs.              

4.  The OPs.2 and 3 are called absent throughout the proceedings.

5.  During enquiry, the father of the complainant Mohd. Jahangir filed his affidavit as evidence on behalf of his minor daughter Sofia Fathima and got marked Exs.A-1 to A-7 documents and closed the evidence of complainant. The OP-1 filed his affidavit as evidence and got marked Ex.B-1 document and closed his evidence. 

6.  Heard arguments.

7.  The points for consideration are:-

1. Whether there is any deficiency of service on the part of OPs?
2. To what relief?

8. Point Nos.1 and 2:- There is no dispute that the complainant being minor under the guardianship of her father has joined the scheme for two-wheeler vehicle.  The OP-1 has received cash amounting to Rs.28,236/- from the father of complainant on 5-11-2011 towards down payment and 1^st installment under the scheme and passed receipts in Exs.A-1 and A-2 are also not in dispute.  

9.  The case of the complainant is that the OP-1 is the partner of Perfect Enterprises, Reliable Auto Finance & Consultants at Waqf Complex, Mahabubnagar and floated two-wheeler vehicle scheme. The father of complainant joined the scheme in the name of his minor daughter Sofiya Fathima and paid down payment of Rs.27,236/- on 5-11-2011 and 7 monthly installments @ Rs.1,000/- to OP-1. The father of complainant also arranged hand loan of Rs.10,000/- to OP-1 and inturn the OP-1 has promised that the said hand loan amount would be adjusted for future monthly installments of the scheme.

10.  In order to prove the case the father of the complainant filed his affidavit as evidence and relied upon Exs.A-1 to A-7 documents.

11.  The case of the contesting party, OP-1 is that he is employee of ‘Perfect Enterprises’ but not partner. One Mandakari Rajesh along with Syed Imran used to run the firm namely ‘Perfect Enterprises’ at Waqf Complex, Mahabubnagar and they floated two-wheeler vehicle scheme under the said firm.  The OP-1 worked as collection boy for four months from August, 2011 to November, 2011.  During the said period the OP-1 has received the cash amounting to Rs.28,236/- on 5-11-2011 from the father of complainant on joining the scheme in the name of his minor daughter Sofiya Fathima towards down payment plus 1^st installment under the scheme and he passed the receipts in Exs.A-1 and A-2 as a Manager of firm.  No employee of a firm can be fixed for the services of the owners/partners of the firm. Supporting to his contention, the OP-1 filed his affidavit as evidence and relied upon Ex.B-1 document.

12.  The OPs.2 and 3 are absent to the proceedings of the case even after published the service of notices against them through a publication in Praja Shakthi Telugu daily news paper.

13.  Therefore the dispute is also arises that what is the actual position of OP-1 with the ‘Perfect Enterprises’ firm?    

14. The version of the complainant is that the OP-1 is a partner of ‘Perfect Enterprises’ firm and received the amounts in Exs.A-1 and A-2 under the scheme.  On contrary, the OP-1 pleaded that he worked as collection boy for the said firm only for four months and he has issued Exs.A-1 and A-2 in favour of complainant during his tenure.

15. The learned counsel for the complainant vehemently argued that the OP-1 did not speak anything about his employment with the firm when he replied in Ex.A-5 to the legal notice in Ex.A-4. The employment plea taken by OP-1 only in his counter but it has no supporting evidence and it would not be sustained in view of ‘No Plea’ about his employment in the reply notice in Ex.A-5.

16.  The learned counsel for OP-1 also vehemently argued that the plea of OP-1 that he has ‘No way concerned with the firm’ in his reply notice in Ex.A-5 is nothing but he is not a partner of the firm and he stressed upon Ex.B-1 document which is a registered partnership firm under the name and style of M/s Perfect Enterprises formed only by OPs.2 and 3 as its partners. Further the counsel for OP-1 also submitted that no employee of a firm can be fixed for the services of the owners/partners of the firm.

17. We have heard the counsel for the parties and gone through the entire record of the case.  We have also perused the exhibits on both sides. Exs.A-1 and A-2 are issued in favour of complainant. On scanning them, that the firm name of ‘Perfect Enterprises’ along with Reliable Auto Finance & Consultants is printed with emblem along with Registered No.127/2011 on Exs.A-1 and A-2 receipts.  The address of the firm given as ‘shop No.1, 2^nd floor, Waqf Complex, beside Prince Show-room, Mahabubnagar-509001 in the said Exs.A-1 & A-2 and they bears signature of OP-1 as a Manager of the firm. Except tallying the firm Registered Number as 127/2011 under the caption of ‘M/s Perfect Enterprises’ Mahabubnagar, all other particulars printed on Exs.A-1 and A-2 are not matched with the particulars mentioned in Ex.B-1 Registered Partnership firm document. However the Registered Number 127/2011 with the firm name as ‘Perfect Enterprises’ in Ex.B-1 are reflecting the same in Exs.A-1 and A-2.  Hence we are of the view that the OPs.2 and 3 are the partners of the Registered Firm under the name and style of              ‘M/s Perfect Enterprises’ at Mahabubnagar.

18.  Now coming to the role of OP-1, actually what attachment he got with the said firm of OPs.2 and 3. Admittedly the OP-1 has received cash amounting to Rs.28,236/- from the father of complainant on                   5-11-2011 under the scheme and passed receipts in Exs.A-1 and A-2 stated to be his position is as a Manager with the said firm.  The said receipts in Exs.A-1 and A-2 are issued on 5-11-2011. The plea of OP-1 in his counter is that he worked as collection boy for the firm for four months from August, 2011 to November, 2011. Hence how the OP-1 has signed on Exs.A-1 and A-2 as a Manager of the firm instead of collection boy?  It cannot be considered that the employment of collection boy is to be treated for the employment of Manager of the firm. Earlier in reply notice in Ex.A-5, the OP-1 has pleaded that he has no way concerned with the firm of OPs.  It could be understood that the OP-1 is neither a partner nor an employee in any position with the firm.  Hence the pleadings of the OP-1 in reply notice in Ex.A-5, in his counter and the position mentioned as a Manager in Exs.A-1 and A-2 are self contradictory with each other. Therefore the burden of OP-1 is not discharged on what capacity he has received the cash amounting to Rs.28,236/- and passed the receipts in Exs.A-1 and A-2 under the scheme in favour of complainant on behalf of firm. In the absence of such evidence, we are of the view that the OP-1 also having attachment with the firm under the scheme on par with the OPs.2 and 3 in transaction of the complainant.

19.  The complainant has not filed any record to show that the father of the complainant has paid 7 months regular installment @ Rs.1,000/- per month and given hand loan for Rs.10,000/- to OP-1 under the scheme except payment made under the receipts in Exs.A-1 and A-2.

20. Viewing in any angle we are of the view that there is deficiency of service on the part of OPs in not refunding of the amount under Exs.A-1 and A-2 to the complainant under the scheme when the firm was closed.  Therefore the OPs are liable to refund the said amount of Rs.28,236/- under Exs.A-1 and A-2 with interest @ 9% p.a. from 5-11-2011 till realization to the complainant under the scheme along with costs of Rs.2,000/-. 

21.  IN THE RESULT:-  The complaint is allowed in part as under:-

1. The OPs are directed to refund an amount of Rs.28,236/- under Exs.A-1 and A-2 with 9% interest p.a. under the scheme from the date on 5-11-2011 till realization to the complainant.
2. The OPs are also directed to pay Rs.2,000/- to the complainant towards costs of the complaint.