Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This appeal takes an exception to an order dated 31.07.2010 passed in Consumer Complaint No.188/2008, Deepak Jayendra Mehta V/s. H.D.F.C. Bank Ltd. & Ors., by the Consumer Disputes Redressal Forum, Mumbai Suburban District (‘the Forum’ in short).
(2) The matter relates to a very short issue. It is alleged by the Complainant that they had purchased Tata Indigo Lx Car in the month of August, 2005 from M/s.Om Sai Motor Pvt. Ltd., Kandivli (W), Mumbai. Finance to purchase the said Car was obtained from H.D.F.C. Bank Ltd. But, loan amount to purchase the said car, i.e. the purchase value minus down payment, alleged to have been directly paid by the Bank to M/s.Om Sai Motors Pvt. Ltd. It is further alleged by the Complainant that M/s.Om Sai Motors Pvt. Ltd. failed to deliver the possession of the vehicle purchased. It is also alleged that instead of making delivery of the said car to them, M/s.Om Sai Motors Pvt. Ltd. had given delivery to one Deepak Devendra Mehta. Therefore, consumer complaint is filed alleging deficiency in service on the part of M/s.Om Sai Motors Pvt. Ltd. Since, they failed to deliver the vehicle to the Complainant, the consumer complaint accordingly was filed on 02.04.2008.
(3) About loan transaction, i.e. financial help obtained from H.D.F.C. Bank, is not in dispute. However, Respondent/Opponent No.3, The Manager/Director of M/s.Om Sai Motor Pvt. Ltd. have come with a case that they have no dealing with the Complainant – Deepak Jayendra Mehta and they are dealing with Deepak Devendra Mehta to whom the car was delivered. The Forum by impugned order dismissed the consumer complaint and feeling aggrieved thereby this appeal is preferred by the original Complainant.
(4) We heard both the parties.
(5) Appellant/original Complainant wants that certain papers about delivery of the vehicle ought to have been produced on record which are in the custody of the Respondent No.3/original Opponent No.3. As far as loan transaction documents are concerned Respondents Nos.1 & 2/original Opponent Nos.1 and 2 today produced copies regarding loan account of Complainant – Deepak Jayendra Mehta. It also inter alia included the copy of cheque to show that payment is made to M/s.Om Sai Motors Pvt. Ltd. Obviously the loan transaction between the Complainant and the H.D.F.C. Bank Ltd. is a separate transaction. It is nothing to do with the delivery of the Car since amount was disbursed as per the instructions of the Complainant only.
(6) As far as issue as to non-delivery of the car by M/s.Om Sai Motors Pvt. Ltd. is concerned, as alleged by the Complainant through whom the vehicle was purchased, that issue stand is on different footing. It is submitted on behalf of the Complainant that they want to bring on record additional evidence in respect of the vehicle purchased by him. They also referred to the roznama of the Forum to show that Opponent No.3 sought time to produce the documents which were in their possession. Ld. Counsel appeared on behalf of Respondent/Opponent No.3 submitted that he appeared for M/s.Om Sai Motors Pvt. Ltd. and he tried to draw our attention to the averments made in the complaint just to canvas his submissions that this transaction is of commercial nature and therefore, Complainant is not a consumer within the meaning of Consumer Protection Act, 1986 and further he wants to submit that transaction is of the year 2005 and therefore, the complaint is hopelessly time barred.
(7) Considering the submissions made on behalf of Respondent/Opponent No.3, it could be seen that issue pertains to non-delivery of the vehicle and therefore, the cause of action is continuous. As far as the issue as to whether the Complainant is a consumer or not, considering the written version of Opponent No.3 the averments made in the complaint, nowhere it is specifically stated that Complainant is not a Consumer. But it is averred by Opponent No.3 that there was no transaction with the Complainant. They claimed to have a transaction with one Mr.Deepak Devendra Mehta and not with the Complainant. These are the facts need to be appreciated/assessed properly on the basis of evidence. However, looking to the roznamas, it can be seen that after the written version and the Rejoinder to it of the Complainant taken on record, straightway matter was adjourned for written arguments and as such the stage of leading evidence as per requirement of the Provisions of Section 13(4) of the Consumer Protection Act, 1986 was skipped over. Now, the case of the Appellant/original Complainant is that they want to adduce or bring on record evidence regarding delivery of the Car. Therefore, such omissions assume importance. We find, as reflected from the roznama and submissions made on behalf of the Appellant/original Complainant, by denying an opportunity to lead their respective evidence as per Section 13(4) of the Consumer Protection Act, 1986, to the parties, it results into miscarriage of justice. Therefore, we further find it just and proper to remand the matter so that both the parties shall get proper and reasonable opportunity to lead their respective side of evidence.
(8) At this stage when we asked Mr.Gokhale, Ld.Counsel appearing for the Respondent/Original Opponent Nos.1 & 2 as to whom he represents, he has submitted that he represents ‘H.D.F.C. Bank’. We asked Ld.Counsel for Respondent/Opponent No.3, the same question, he has submitted that he is appearing for the establishment ‘M/s.Om Sai Motors Pvt. Ltd.’ Therefore, it is the institutions who are contesting this consumer complaint. Thus, the description of the Opponent No.3 may need to be corrected. As earlier observed, in fact, the consumer dispute in question is in respect of non-delivery of the vehicle by the dealer. The financial institution will not come in picture for the same. As earlier stated, Appellant/original Complainant also submitted that they have no grievance against the Bank and in that way they are impleaded unnecessarily as the opponents. Therefore, as far as the financial institution is concerned, we find it not necessary to disturb the impugn order.
(9) For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed only against Respondent/original Opponent No.3.
(ii) Impugned order as against Respondent/Original Opponent Nos.1 & 2 stands confirmed.
(iii) The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent No.3 only, in the light of the observations made in the body of the order.
(iv) Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03/06/2011.
(v) The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3. If such application is made, that should be decided on merit after hearing Opponent No.3.
(vi) The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter hearing them, settle the dispute according to law.
(vii) In the given circumstances, both the parties in appeal shall bear their own costs.
(viii) Appeal stands disposed of accordingly.
Pronounced on 3rd May, 2011.
