BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint case No.304 of 2016.
Date of Instt.: 30.11.2016.
Date of Decision: 29.11.2017.
- Krishna wife of Subhash Chand, 2. Subhash Chand son of Karan, 3. Pawan Kumar son of Subhash Chand, 4. Reena wife of Pawan Kumar, residents of Ward No.18, Aggarwal Colony, Fatehabad District Fatehabad.
...Complainant.
Versus
- Pawan son of Rajender Aggarwal, resident of near Buta Ram Depot old Tehsil Chowk Gali No.3, Fatehabad, Tehsil and District Fatehabad.
- Dauphin Travels Marketing Pvt. Ltd. Old DSP road near Diwan ki Chakki Bhagatpur Chowk Sonepat (Haryana). ...Opposite Parties/OPs.
Complaint U/S 12 of the CP Act,1986
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Sh. Ajay Beniwal, Advocate for
complainant. Sh. Yogesh Gupta, Advocate for opposite party No.1. Sh. Dashmesh Sheoran, Advocate for opposite party no.2.
ORDER
Complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as ops).
2. Briefly stated, the facts of the present complaint are that all the complainants are members of one middle class family. That opposite party no.1 Pawan Kumar was on visiting terms with the complainants and is known to them and as such op no.1 after alluring them told about a forged and fake scheme and told that Dauphin Travels Marketing Private Ltd. is a company which pays more interest in short period and in this scheme many persons are investing money and op no.1 told that he is agent of above said company. It is further averred that in this way the op no.1 after keeping them in dark and by alluring them obtained 5/5 installments of Rs.5500/- each per month and told that within a period of two years the above said company will refund an amount of Rs.one lac each to all the complainants and in this way the op no.1 obtained total sum of Rs.1,10,000/- from all the complainants and gave some receipts to them and did not give the remaining receipts. That the complainants have come to know that both the ops in connivance with each other hatched conspiracy with each other and have committed fraud upon the complainants and have obtained an amount of Rs.1,10,000/- from them. That when the complainants demanded their money back alongwith interest from op no.1 he did not listen them rather misbehaved with them, also gave threat to them and refused to return the amount. It is further averred that thereafter complainant no.1 himself and his family members got issued a legal notice upon the opposite parties on 6.10.2016 demanding the amount of Rs.1,10,000/- alongwith interest @18% per annum within 15 days otherwise to do legal action against them but the ops neither gave proper reply nor returned the amount rather gave reply on the basis of wrong facts. Hence, this complaint.
3. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that complainants have imposed false allegations of cheating, conspiracy and fraud against the answering op and have also imposed false allegations of threatening and these facts cannot be decided by this Forum, hence the complaint is not maintainable before this Forum and same is liable to be dismissed being barred by jurisdiction. It is further submitted that op no.1 had a shop of mobile recharge in the Mandi. One Darshan Singh Sidhu visited the shop of op no.1 alongwith complainant no.2 for marketing the scheme of op no.2 company by saying that Subhash Chand has already purchased/ invested in the scheme of op no.2 company, aforesaid Subhash chand complainant no.2 persuaded to the op no.1 to purchase the ID of the op no.2 by showing extra ordinary benefit of this scheme. On this, the answering op purchased 16 ID of scheme and as such answering op is victim of complainant no.2. That the instant complaint is gross abuse of process of law and has been filed by the complainants with the sole purpose of harassing and pressurizing the answering op to submit the unreasonable and mischievous demands of the complainants and that complainants have no cause of action to file the present complaint against the answering op. It is further submitted that complainants have not come to this Forum with clean hands and have suppressed the true and material facts from this Forum. It is clear from notice issued by complainant no.1 through her counsel of which reply was given, no reference of reply has been given in the complaint and the complainants have changed their stand in this complaint beyond the facts mentioned in notice. The reply of complaint has already been given in reply to notice dated 24.10.2016. It is further submitted that after failure in implementation of scheme by taking illegal benefit of friendship of answering op with the complainant no.2, in counter blast of complaint on behalf of mother of answering op to the complainant no.2, first the petitioners got issued a notice on behalf of petitioner no.1 only by suppressing the real facts and in reply each and every fact was made clear. On this reply, the present complaint has been filed on behalf of all family members of the complainant no.1 being their foul play was disclosed in reply to notice in advance to take illegal benefit of this complaint. The mother of answering op would have to initiate proceedings against complainant no.2 as cheating has been made with mother as well as brother of answering op through Gurpreet Singh Sidhu and Darshan Sidhu resident of Narwana through whom by showing the pamphlets and scheme of Dorphin Travels Marketing Pvt. Ltd, husband of complainants have snatched huge amount by misrepresenting that it will fetch profit for her and by believing the words of Subhash chand complainant no.2, answering op, his mother and his brother purchased 16 policies. That complainant no.2 instead of giving any type of help to answering op, the complainant no.1 got issued a false notice on the basis of fabricated story whereas answering op has no concern with aforesaid company. It is further submitted that it is also suppressed by the complainants that the complainant no.1 alongwith her husband i.e. complainant no.2 has attended the training camps of said company wherein the mother of answering op was also accompanied by them. After receiving the aforesaid notice when the answering op enquired in this regard, he came to know that the complainants have withdrawn huge amount from aforesaid company and has made targeted to several persons in City Fatehabad to complete the target. On merits, the pleas of the preliminary objections are reiterated, the contents of the complaint are denied and prayer for dismissal of complaint has been made.
4. Opposite party no.2 also appeared and filed separate written statement taking certain preliminary objections of territorial jurisdiction; locus standi and that in the entire complaint, the complainant has failed to show any dealing or any interaction or payment to the answering op and therefore the present complaint is without any cause of action and that even as per the averments in the complaint, the fraud if any or the deficiency in services, if any have been alleged on part of op no.1 and there are no allegations against answering op. On merits, it is submitted that averments with regard to the act and conduct of op no.1 are in no manner supported by the answering op and the answering op has no role in the same. Any misleading promises, fraud or declaration of a false scheme in the name of answering op by op no.1 are his own independent acts and the answering op does not support any such act and rather the answering op has been very categoric in ensuring that the customers relating to the answering op are made fully aware of the prospects provided by the answering op and therefore, any misleading promise on part of op no.1 is not binding upon the answering op. It is specifically denied that op no.1 is the agent of answering op. It is further submitted that answering op does not engage in any business activity which provides for taking in deposits from the clients and then providing interest on the said amounts at the time of the refund of the amounts. It is further submitted that answering op does not have any such offer or scheme which provides for any such or similar return. Even otherwise it is beyond belief that the complainant side would pay an amount of Rs.5500/- per month to receive back an amount of Rs.1,00,000/- in two years when the actual payments made by each of the complainant would be Rs.1,32,000/- in a period of two years. It is apparent that the complainant side has cooked up the version in order to rope in the answering op in a matter which possibly was between the complainant side and op no.1. It is further submitted that the contents with regard to op no.1 receiving installments of Rs.5500/- each from the complainant side and thus collecting a total amount of Rs.1,10,000/- from them is not to the knowledge of answering op. Even if the version as given by the complainant side is believed to be correct, then also in the absence of the complainant side depositing the entire amounts, there arises no cause of action to seek the promised amount or even the refund of the amounts deposited by them as it is the complainant side itself which has not adhered to the alleged scheme narrated to them by op no.1. It is further submitted that the averments in the complaint with regard to the receipts available to the complainant side also speak against the very case of the complainant side in as much as a perusal of the said receipts being relied upon by the complainant would show that the scheme pertain to the payments for “Family Tour Package” and the same have no correlation with the deposit scheme or the refund of the amount as alleged by the complainant side and is altogether a different product on offer of the answering op. Remaining contents of the complaint are also specifically denied.
5. The complainants produced affidavit of Smt. Krishna complainant as Ex.CW1/A, affidavit of Subhash complainant Ex.CW2/A, copy of legal notice Annexure C1, postal receipt Annexure C2, receipt of Rs.5500/- dated 23.7.2014 issued in favour of Smt. Krishna Annexure C3, receipt of Rs.5500/- dated 23.7.2014 issued in favour of Subhash Chand Annexure C4, copy of letter dated 21.8.2014 to Pawan Kumar Annexure C5, and copy of letter to Reena Rani dated 21.8.2014 Annexure C6. On the other hand, OP no.1 produced his affidavit Annexure RW1, reply to legal notice Annexure RW1/1 and copies of receipts Annexures RW1/2 to RW1/10. Op no.2 produced affidavit of Sh. Parveen Jain, Director Annexure RW2 and copies of documents Annexures RW2/A to RW2/14. OP no.1 produced his affidavit Annexure RW1, reply to legal notice Annexure RW1/1 and copies of receipts Annexures RW1/2 to RW1/10.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. The complainants in order to prove their case have furnished affidavits of Smt. Krishna complainant as Ex.CW1/A and affidavits of Subhash complainant Ex.CW2/A wherein they have reiterated all the contents of their complaint. In support, they have also furnished receipt of Rs.5500/- dated 23.7.2014 issued in favour of Krishna as Annexure C3, receipt of Rs.5500/- dated 23.7.2014 issued in favour of Subhash Chand Annexure C4, letter dated 21.8.2014 issued to Pawan Kumar Annexure C5 and letter dated 21.8.2014 issued to Reena Rani as Annexure C6. All these receipts and thanks letters are issued by Daulphin Travel Marketing. The opposite party no.2 has also placed on file receipt of Rs.5500/- in favour of Krishna dated 23.7.2014 as Annexure RW2/2, thanks letter dated 21.8.2014 issued to Subhash Chand complainant Annexure RW2/3, receipt of Rs.5500/- dated 23.7.2014 issued in favour of Subhash Chand complainant as Annexure RW2/4, thanks letter dated 21.8.2014 issued to Subhash Chand as Annexure RW2/5, thanks letter dated 21.8.2014 issued to Pawan Kumar complainant Annexure RW2/6, another thanks letter dated 21.8.2014 issued to Pawan Kumar as Annexure RW2/7, thanks letter dated 21.8.2014 issued to Reena Rani Annexure RW2/8, another thanks letter dated 21.8.2014 issued to Reena Rani complainant Annexure RW2/9. All these receipts/ letters produced by the complainant and opposite party no.2 itself makes it clear that opposite party no.2 is engaged in business and got the money invested from various customers and issues scheme/ plans to its customers through its agents. It cannot be said that all these documents are related to tour package and not related to investments plans. As the opposite party no.1 and his family members are also investing money with the opposite party no.2 as is evident from receipts and thanks letters produced on file by op no.1 as Annexures RW1/2 to RW1/10, it can easily be said that op no.1 is the agent of op no.2 and he got invested his amounts, amounts of his own relatives and also the amount of the complainants. The version of the op no.1 that Subhash Chand etc. got invested their money is not proved through any cogent and reliable evidence.
8. It is also pertinent to mention here that in the present complaint the complainants have averred that an amount of Rs.1,10,000/- has been received by the OPs from them as investment. However a perusal of the file reveals that only two Receipts of Rs.5,500/- each i.e. Annexure C-2 and Annexure C-3 have been produced in support of his case. Receipts of remaining amount alleged to have been paid by them has not been produced on the record. So in absence of any cogent or convincing evidence it cannot be established that the remaining amount was deposited by the complainant with the OPs. Verbal assertion in absence of any convincing evidence cannot be relied upon. Therefore we are of the considered opinion that the complainants have been able to prove that Rs.11,000/- (Rs.5500/-+ Rs.5500/-) have been invested by them with the OPs.
9. In view of the aforesaid discussion the present complaint is allowed and the OPs are directed to make a payment of Rs.11,000/- along-with an amount of Rs.10,000/- as compensation on account of unfair trade practice on the part of OPs in rendering service to the complainant. This order be complied with within a period of one month from the receipt of copy of present order otherwise interest @ 8% per annum will have to be paid by the OPs from the date of order till realization. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance
ANNOUNCED IN OPEN FORUM Dt.29.11.2017
(Raghbir Singh)
President District Consumer
Disputes Redressal Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
