State Consumer Disputes Redressal Commission
Sh. Dinesh Kumar Sharma. vs M/S Tata Mutual Fund. on 18 June, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 280/2016
Date of Presentation: 26.08.2016
Order Reserved on : 18.04.2018
Date of Order : 18.06.2018
......
Dinesh Kumar s/o Shri Krishan Lal r/o Village Sharog Post
Office Devnagar Tehsil and District Shimla H.P.
...... Appellant/Complainant
Versus
M/s. Tata Mutual Fund Fort House Upper Ground Floor 221
Dr. D.N. Road Mumbai 400001 Through its Chief Executive
Officer.
......Respondent/Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Swaran Sharma Advocate vice
Mr. Peeyush Verma Advocate.
For Respondent : Mr. Surender Verma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 10.06.2016 passed by Learned District Forum in consumer complaint No. 395/2011 titled Dinesh Kumar Sharma Versus M/s. Tata 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) Mutual Fund whereby learned District Forum dismissed consumer complaint filed by complainant.
Brief facts of Consumer Complaint:
2. Complainant Dinesh Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that opposite party approached predecessor in interest of complainant Shri Bimal Kumar Pal in the month of March 2009 with an offer of investment of money in M/s. Tata Mutual Fund. It is further pleaded that predecessor in interest of the complainant namely Bimal Kumar Pal invested a sum of Rs.120000/- (One lac twenty thousand) with opposite party in the month of April 2009. It is further pleaded that opposite party concern got himself recorded as nominee. It is further pleaded that predecessor in interest of complainant died on 06.02.2010 at IGMC Shimla (H.P.). It is further pleaded that predecessor in interest of complainant executed registered WILL in favour of complainant on dated 06.01.2010. It is further pleaded that complainant requested opposite party to pay sum of Rs.120000/- (One lac twenty thousand) on the basis of WILL but opposite party did not pay the amount and committed deficiency in service. Complainant sought relief of payment of Rs.120000/- (One lac twenty thousand) alongwith interest @18% per annum w.e.f. April 2009 till realization. In addition complainant sought relief of payment of Rs.50000/- (Fifty 2 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) thousand) as compensation for mental torture and harassment. In addition complainant sought relief of payment of Rs.7500/- (Seven thousand five hundred) as costs of litigation. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that present consumer complaint is not maintainable and complainant has no cause of action to file the consumer complaint. It is pleaded that amount already stood released in favour of nominee namely Prabhat Kumar Pandey. It is further pleaded that present consumer complaint is bad for non-joinder of necessary party. It is further pleaded that nominee namely Shri Prabhat Kumar Pandey is necessary party. It is further pleaded that complainant has no locus-standi to file present consumer complaint and present consumer complaint is barred by law of limitation. It is further pleaded that Civil Suit No.86 of 2011 titled Santosh Kumar Versus Dinesh Kumar Sharma is pending adjudication before Hon'ble High Court of H.P. It is further pleaded that WILL is under judicial scrutiny before Hon'ble High Court of H.P. as of today. It is further pleaded that Prabhat Kumar Pandey is working as agent with Shriram Fortune Solutions Limited and has no concern with the opposite party. It is further pleaded that Shriram Fortune Solutions Limited is broker/agent of M/s. Tata Mutual Funds. It is further pleaded that opposite party did not commit any 3 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum dismissed consumer complaint with costs to the tune of Rs.3000/- (Three thousand).
5. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
8. Learned advocate appeared on behalf of complainant before learned District Forum has given statement on dated 27.12.2013 that affidavit alongwith complaint and annexures C-1 to C-5 be read as evidence of complainant. Similarly learned advocate appearing on behalf of opposite party has given 4 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) statement before learned District Forum on dated 27.06.2014 that version of opposite party alongwith affidavit be read as evidence.
9. Submission of learned advocate appearing on behalf of appellant that succession certificate on the basis of WILL already granted in favour of complainant and on this ground appeal be allowed is decided accordingly. Complainant did not place on record certified copy of order of succession certificate granted in favour of complainant on the basis of WILL by competent authority of law. Hence plea of appellant that succession certificate already granted in favour of complainant on the basis of WILL is defeated on the concept of ipse-dixit (An assertion made without proof).
10. Submission of learned advocate appearing on behalf of appellant that Civil Suit No. 86 of 2011 titled Santosh Kumar Versus Dinesh Kumar Sharma already stood withdrawn and on this ground appeal be allowed is decided accordingly.
Complainant did not place on record certified copy of order passed in Civil Suit No. 86 of 2011 relating to withdrawal of civil suit. Hence plea of complainant that Civil Suit No. 86 of 2011 titled Santosh Kumar Versus Dinesh Kumar Sharma stood withdrawn is also defeated on the concept of ipse-dixit (An assertion made without proof).
11. Submission of learned advocate appearing on behalf of appellant that complainant is legal-heir of deceased Bimal 5 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) Kumar Pal on the basis of testamentary document i.e. WILL and is legally entitled for amount deposited by Shri Bimal Kumar Pal during his life time is decided accordingly. It is proved on record that deceased Bimal Kumar Pal has invested money with opposite party and also appointed Shri Prabhat Kumar Pandey as nominee. It is proved on record that opposite party has released money in favour of nominee. Complainant has not impleaded Shri Prabhat Kumar Pandey as co-party in the consumer complaint. It is well settled that no one should be condemned unheard on the principle of audi alteram partem. It is held that present consumer complaint is also bad for non- joinder of necessary party i.e. Nominee Prabhat Kumar Pandey.
12. It is well settled law that nominee is only trustee. It is also well settled law that after obtaining succession certificate or probate of WILL from competent authority of law nominee is under legal obligation to pay amount to beneficiary mentioned in WILL. See 2007 (1) CPC 65 Punjab titled Balwinder Singh Versus Punjab & Sind Bank & Anr. In the present matter complainant did not place on record any succession certificate or probate of WILL.
13. Submission of learned advocate appearing on behalf of opposite party that complainant be relegated to civil suit for adjudication of dispute in view of dispute of registered WILL executed by deceased Bimal Kumar Pal in favour of Dinesh Kumar is decided accordingly. State Commission is of the 6 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) opinion that complicated facts are involved in the present consumer complaint relating to WILL executed by Bimal Kumar Pal during his life time in favour of Dinesh Kumar Sharma. State Commission is of the opinion that it is expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court for adjudication of his dispute in view of involvement of complicated facts relating to WILL executed by Bimal Kumar Pal in favour of complainant. See 1997 (2) CPJ 95 NC titled Supreme Chemical Industries & Ors. Versus Rajasthan State Industrial Development and Investment Corporation Limited & Ors. See 2003 (1) CPC 37 NC titled M/s. Anvil Capital Management Private Limited Versus M/s. Global Trust Bank Limited. See 1996 (3) CPJ 141 NC titled Mahendra Kumar Hira Lal Shah Versus New India Assurance Co. Ltd. See 2003 (1) CPJ 19 NC titled Kesari Devi Naurang Rai Lohia Foundation Versus UTI Bank Limited & Ors. Point No.1 is decided accordingly.
Point No.2: Final Order
14. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum is affirmed. Complainant is relegated to civil court for adjudication of matter due to involvement of complicated facts in the present consumer complaint. WILL annexure C-4 executed by Shri Bimal Kumar Pal and common application form wherein deceased Bimal Kumar Pal has nominated Shri Prabhat Kumar Pandey as 7 Dinesh Kumar Sharma Versus M/s Tata Mutual Fund (F.A. No.280/2016) nominee annexure -I will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 18.06.2018.
*GUPTA* 8