State Consumer Disputes Redressal Commission
M/S Competent Automobiles Co. Ltd. vs Shri Ganesh Sharma And Others on 6 December, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, SHIMLA.
First Appeal No.79/2012
Date of Decision: 06.12.2012
M/s Competent Automobiles Co. Ltd.,
Through its Whole Time Director Mr. K.K. Mehta,
M/s Competent Automobiles Co. Ltd.,
Village and Post Office Gutkar,
Tehsil and District Mandi, H.P.
.. Appellant
Versus
1. Shri Ganesh Sharma son of Shri Himal Chand,
R/o Village Khatrehar, Post Office
Paprola,
Tehsil Baijnath, District Kangra, H.P.
2. Shri Aneesh Acharya son of Shri Jagdish
Acharya,
R/o Village and Post office Baijnath,
District Kangra, H.P.,
Maruti Udyog Ltd., Palam Road, Gurgaon, Haryana,
Through its Chairman/Managing Director.
3. Maruti Udyog Ltd., Palam Road, Guraon, Haryana,
Through its Chairman/Managing Director.
Respondents
Coram
Honble Mr. Chander Shekhar Sharma, Presiding Member
Honble Mrs. Prem Chauhan, Member
Whether
approved for reporting?[1]Yes.
For the Appellant: Mr.
Sunder Goel, Advocate
For the Respondent No.1: Mr.
Suneet Awasthi, Advocate
For the respondent No.2: Mr. Manish Gupta, Advocate
For the respondent No.3: None
O R D E R:
Mr. Chander Shekhar Sharma, Presiding Member.
This appeal is directed against the order dated 11.01.2012, passed in Consumer Complaint No.296/2009, by learned District Consumer Disputes Redressal Forum, Kangra, Camp at Baijnath, whereby complaint was partly allowed against the opposite parties No.2 and 3 and it was dismissed against opposite parties No.1 and
4. In the present case, opposite parties No.2 and 3 have jointly and severally been directed to refund the amount of `20,000/- to the complainant alongwith interest at the rate of 9% per annum, from the date of complaint, till its actual payment, besides to pay compensation to the tune of `3,000/- to the complainant for his mental pain, agony, inconvenience etc. Litigation costs had been quantified at `2,000/-. Parties are hereinafter referred to as per their status in the complaint.
2. Facts of the case within the narrow compass are that opposite parties No.2 and 3 are the authorized dealer of opposite party No.1 and are competent to book and sell the vehicles manufactured by opposite party No.1 and opposite party No.4 is the authorized agent of opposite parties No.1 to 3 for booking the vehicles on their behalf.
3. Further averments in the complaint are that the complainant had booked an Alto car on 09.06.2009 from opposite party No.2, through their agent, i.e. opposite party No.4 and a demand draft to the tune of `20,000/-bearing No.553315 dated 09.06.2009 as well as other documents were given by the complainant to the opposite party No.4, who further submitted these documents alongwith draft to the opposite party No.3. It has been pleaded that as per their internal arrangement between opposite parties No.1 and 3, the vehicle manufactured by the opposite party No.1 can be booked from any authorized dealer/agent and the delivery of the same can be had from the other authorized dealer. As such, the draft was made in the name of opposite party No.2.
However, the same alongwith other documents was submitted with the opposite party No.3.
4. It was further pleaded that after booking the car, complainant came to know that the opposite party No.4 has been arrested by the Police Station, Baijnath in a case under Sections 420/468 IPC, regarding sale of vehicles being manufactured by opposite party No.1 and sold by opposite parties No.2 and 3. Hence, the complainant requested the opposite party No.3, vide registered letter dated 22.06.2009 to cancel his booking and to refund the amount of `20,000/- and when no response was given by opposite party No.2, then again he sent a registered letter to the Chief General Manager of opposite party No.1 and requested for refunding the amount of `20,000/-, but needful was not done and as such deficiency of service had been alleged, on the part of opposite parties in the present case.
5. In this background, a complaint under Section 12 of the Consumer Protection Act, 1986, had been filed, wherein a direction had been sought against the opposite parties for refunding the amount of `20,000/- alongwith interest and for payment of compensation to the tune of `5,000/- for causing mental harassment and litigation costs had been claimed to the tune of `5,000/-
6. Complaint was contested by the opposite parties.
Opposite party No.1 had filed a separate reply, wherein it was contended that complaint is not maintainable and there is no deficiency on their part. It was also pleaded that complainant neither entered into any agreement of sale of goods (car) nor hired any services for consideration with the opposite parties and as such prayer had been made for dismissal of the complaint.
7. Opposite parties No.2 and 3 had filed joint reply, in which they had pleaded that they are the dealers of Maruti Suzuki India Limited for Himachal Pradesh, since 1998 and running the business at Gutkar Mandi and Hamirpur. They have contended that complaint is not maintainable against the answering opposite parties, as there is no deficiency in service, on their part. It has been pleaded that the complainant has no cause of action against the answering opposite parties, in view of the fact that the alleged demand draft bearing No.553315 dated 09.06.2009, amounting to `20,000/- in favour of M/s Competent Automobiles Co. Ltd., was submitted by one Shri Munish Kumar son of Shri Suresh Kumar, resident of Village and Post Office Baijnath, District Kangra, against the price of Maruti vehicle (Alto Silky silver) at showroom of opposite party No.3 located at Village Tikkar, Post Office Didwin, Tehsil and District Hamirpur, who had taken the delivery of the vehicle against full and final payment, as such, the complaint deserves to be dismissed, in limine.
8. However, answering opposite parties have denied that the alleged demand draft was ever given by the complainant to Aneesh Acharya and draft under reference was submitted to one Munish Kumar against the price of car against which, receipt No.280 dated 16.06.2009, was issued and it was pleaded that complaint is bad for non-joinder of Munish Kumar. However, it was admitted that opposite party No.4 has been arrested by the police of Police Station, Baijnath, District Kangra, for committing fraud. It was further pleaded that opposite party No.4 is neither an agent nor in the employment of the answering opposite parties and only deficiency of opposite parties No.2 and 3 is that the alleged demand draft was submitted by one Munish Kumar and complainant had not handed over the same to the answering opposite parties and as such, complainant has no cause of action against the answering opposite parties to file the complaint. Hence, prayer had been made for dismissal of the complaint against the opposite parties.
9. Opposite party No.4 had also filed separate reply, wherein it had been admitted that he was the authorized agent of opposite party No.2 and the complainant booked a Maruti car from opposite party No.2, who is authorized agent of opposite party No.1 to book and sell the vehicle on its behalf.
It has been admitted by the answering opposite party that draft was handed over by the complainant which was in the name of opposite party No.2, but due to non-availability of cars, the same was submitted with opposite party No.3, alongwith documents. It was denied by the answering opposite party that there is dishonest intention on his part and he had not committed any breach of trust with the complainant.
10. Rejoinder to the complaint was also filed, wherein the averments made in the complaint were reiterated.
11. Brief resume of evidence led by the parties in nutshell is that complainant in support of his case had filed his own affidavit, Ext. CW-1 and had placed reliance upon a number of documents, Annexure C-1 to C-3.
12. Opposite party No.1 in support of its case had filed affidavit of Thakur Kiran Singh Manager (Legal) Ext.OPW-1 and had placed reliance upon documents, Annexure R-1/1 and R-1/2. Opposite parties No.2 and 3 in support of their case had filed affidavit of K.K. Mehta, Director of the Company Ext.OPW2-1 and had placed reliance upon a number of documents, Annexure OP2-1 to OP2-17. Opposite party No.4 in support of his case had filed his own affidavit Ext.OPW4-1 and had placed reliance upon a number of documents, Annexure OP4-1 to OP4-9.
13. During the proceedings before the learned Fora below, an application under Section 13 (4)
(i) and (iii) of the Consumer Protection Act, 1986, was filed on behalf of opposite parties No.2 and 3, wherein a prayer had been made for calling Aneesh Acharya for the purpose of cross-examination and further prayer was also made for filing affidavit of S.C. Sharma and summoning of Munish Kumar as witness. Aforesaid application pertaining to cross-examination of Aneesh Acharya and summoning of Munish Kumar as witness was rejected by the learned Fora below, vide order dated 08.12.2011. However, prayer for allowing filing of affidavit of S.C. Sharma was allowed, which had been placed on record as Annexure OPA.
14. We have heard learned counsel for the appellant as well as counsel for the respondents No.1 and 2 and have minutely scanned the record of the case.
15. Mr. Sunder Goel, counsel for the appellant argued that the order of the Fora below is not legally sustainable and the Fora below had wrongly allowed the complaint against them and it was wrongly held that Aneesh Acharya (opposite party No.4) was the agent of his client, since TDS was deposited. Simply depositing of TDS will not make him the agent of the appellant and as per him, no amount for booking had ever been received by his client from the complainant and the complainant in the present case does not fall within the ambit of definition of a consumer, in view of the aforesaid plea of the appellant. He had also argued that cheating and breach of trust is involved and complicated question of law and facts are also involved and as such the Consumer Fora had got no jurisdiction to try the complaint. Lastly, it was argued that the order of rejection of application for cross-examination of Aneesh Acharya and summoning of Munish Kumar, under Sections 13 (i) and (iii) of the Consumer Protection Act, 1986, is not legally sustainable, as it had caused grave miscarriage of justice and the ground had been specifically pleaded in ground No.5 of grounds of appeal.
16. Mr. Suneet Awasthi, counsel for respondent No.1 and Mr. Manish Gupta, counsel for respondent No.2 had supported the order of the Fora below.
17. After hearing the counsel for the parties and going through the record of the case, we are of the considered view that the order of the Fora below is not legally sustainable and it deserves to be set aside. Reason being that in the present case, the Fora below had wrongly concluded that Aneesh Acharya, opposite party No.4 was an authorized agent of opposite parties No.2 and 3 as deduction of income tax had been made, vide Annexure OP4-1 to OP4-2, in which name and address of a person deducting income tax has been mentioned as Competent Automobiles and as such the Fora below had wrongly concluded that opposite party No.4 was an authorized agent of opposite parties No.2 and 3 to book the vehicles on their behalf.
Section 203 of the Income Tax Act only pertains to deduction of tax at the source and simply deduction at source will not prove legally that opposite party No.4 was the authorized agent of opposite parties No.2 and 3 and this finding of the Fora below is not legally warranted. Moreover, there is no cogent, convincing and documentary evidence on record to prove that Aneesh Acharya was agent of appellant.
18. However, there appears to be force in the contention of the appellant that the order of the Fora below, in dismissing the application under Section 13(4) (i) and (iii) of the Consumer Protection Act, 1986, for cross-examination of Aneesh Acharya and summoning of Munish Kumar as witness is not legally sustainable, since this order of rejection of application had caused grave miscarriage of justice, in view of the contentions raised in the pleadings by the appellant and in view of affidavit of Aneesh Acharya, a complete denial of the fact by appellant that Aneesh Acharya is not their authorized agent, nor they have received any amount of booking of Alto Car, on behalf of the complainant, in this case and as such the order of the Fora below dated 11.01.2012, passed in Consumer Complaint No.296/2009, whereby the complaint was partly allowed against opposite parties No.2 and 3 is not legally sustainable and deserves to be set aside and as such this is a fit case for remand and therefore, the case is remanded to the Fora below, with a direction that appellant/opposite parties No.2 and 3 be given an opportunity to cross-examine Aneesh Acharya and lead in evidence affidavit of Munish Kumar and also to give an opportunity to lead evidence in rebuttal.
19. In view of the aforesaid discussion and facts and circumstances of the case, order dated 11.01.2012, passed in Consumer Complaint No.296/2009, by learned District Consumer Disputes Redressal Forum, Kangra, Camp at Baijnath, is set aside and case is remanded to the aforesaid Fora, with a direction that appellant/ opposite parties No.2 and 3 be given an opportunity to cross-examine Aneesh Acharya and lead in evidence affidavit of Munish Kumar and also to give an opportunity to lead evidence in rebuttal. Appeal is accepted. No order as to costs.
20. Parties to appear before the learned District Consumer Disputes Redressal Forum, Kangra, at Dharamshala, on 31.12.2012.
21. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Shekhar Sharma) Presiding Member (Prem Chauhan) Member December 06, 2012 *dinesh* [1] Whether Reporters of the local papers may be allowed to see the order? Yes