State Consumer Disputes Redressal Commission
Sh. Govind Ram. vs Sh. Raju Gupta. on 30 October, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 23/2019
Date of Presentation: 10.01.2019
Order Reserved on : 16.05.2019
Date of Order : 30.10.2019
......
Govind Ram S/o Sh. Sudama Ram Resident of Village Sai P.O.
Saigaloo Tehsil Kotli District Mandi H.P.
...... Appellant/Complainant.
Versus
Sh. Raju Gupta S/o Sh.Rattan Lal Gupta Prop. of Gupta Sales
Enterprises Resident of Village and P.O. Kummi Tehsil Balh
District Mandi H.P.
......Respondent /opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. J.K.Sharma vice Mr.G.R.Palsra
Advocate.
For Respondent : Mr. H.S.Rangra Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 22.12.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No.131/2017 titled Govind Ram Versus Raju Gupta.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Govind Ram Versus Raju Gupta F.A. No.23/2019 Brief facts of consumer complaint:
2. Shri Govind Ram filed consumer complaint pleaded therein that opposite party deals in sale and purchase of second hand vehicles under the name and style of Gupta Sales Enterprises at place Kummi Tehsil Balh District Mandi H.P. It is pleaded that on dated 12.06.2016 opposite party sold vehicle bearing registration No. HP 72A-
3711 to complainant in consideration amount of Rs.445000/- (Four lacs forty five thousand) vide Annexure C-1. It is pleaded that stolen vehicle was sold to complainant by the opposite party. It is pleaded that in the month of April 2016 complainant received notice from the police of State CID that FIR No.322/2016 dated 10.12.2016 under section 420, 467, 468 and 471 read with section 120B of IPC stood registered in police station Balh District Mandi H.P. It is pleaded that criminal investigating agency directed the complainant to handover vehicle in question to criminal investigating agency. It is further pleaded that thereafter vehicle in question was handed over to police criminal investigating agency and vehicle in question is parked in police line Mandi H.P. w.e.f. 20.04.2017. It is pleaded that opposite party committed deficiency in service and unfair trade practice.
3. Complainant sought relief of refund of Rs.445000/- (Four lacs forty five thousand) and in addition 2 Govind Ram Versus Raju Gupta F.A. No.23/2019 complainant sought relief of payment of Insurance premium amount paid to the tune of Rs.13000/- (Thirteen thousand). In addition complainant sought relief of compensation to the tune of Rs.50000/- (Fifty thousand). In addition complainant sought litigation costs to the tune of Rs.10000/- (Ten thousand) alongwith interest @ 12% per annum. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of opposite party pleaded therein that controversy between the parties could not be resolved in summary proceedings. It is further pleaded that Learned District Forum/Commission has no jurisdiction to entertain and decide the present consumer complaint. It is pleaded that complainant is estopped by his act and conduct from filing present consumer complaint. It is admitted that FIR No. 322/2016 dated 10.12.2016 under Section 420, 467, 468 of IPC was registered by State CID and vehicle in question was impounded by criminal investigating agency. It is pleaded that vehicle in question was purchased by opposite party from Baldev Ram resident of Kurukhetra Haryana and Baldev Ram is also co-accused in FIR No.322/2016. It is pleaded that vehicle in questioin was registered in the name of Abdul Kadur resident of District Una H.P. It is pleaded that in the month of January 2016 opposite party lost RC and Insurance policy of vehicle in question and lodged police 3 Govind Ram Versus Raju Gupta F.A. No.23/2019 report in police station Sunder Nagar Mandi H.P. It is pleaded that opposite party visited Shimla H.P. and opposite party observed that vehicle in question was plied by police official namely Rajender Kumar. It is pleaded that when opposite party inquired from Rajender Kumar that under what circumstances vehicle in question was in possession of Rajender Kumar then Rajender Kumar told that he has purchased the vehicle in question from one Rakesh Kumar who was scrap dealer at Mandi H.P. It is pleaded that opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission dismissed consumer complaint and directed complainant to approach civil court for adjudication of dispute. Feeling aggrieved against order passed by Learned District Consumer Forum/Commission 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.
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Govind Ram Versus Raju Gupta F.A. No.23/2019
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether sale of theft vehicle to complainant by opposite party in consideration of Rs.445000/- (Four lacs forty five thousand) ipso facto amounts to unfair trade practice under Consumer Protection Act and whether issue of sale of theft vehicle in question to complainant by opposite party and issue of fraud and forgery are independent issues from each other in the present matter and are segregated issues from each other under Consumer Protection Act?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that opposite party is carrying business of sale and purchase of second hand vehicles under the name and style of Gupta Sales Enterprises at place Kummi Tehsil Balh District Mandi H.P. There is further recital in affidavit that deponent purchased vehicle in question from opposite party in consideration of Rs.445000/- (Four lacs forty five thousand) on dated 12.06.2016. There is further recital in affidavit that in the month of April 2016 deponent received notice from the criminal investigating agency of State CID that FIR No.322/2016 dated 10.12.2016 under section 420, 467, 468 and 471 read with section 120B of IPC stood registered in police station Balh District Mandi H.P. There is further recital in affidavit that criminal investigating agency directed the 5 Govind Ram Versus Raju Gupta F.A. No.23/2019 complainant to handover vehicle in question to criminal investigating agency. There is further recital in affidavit that vehicle in question was handed over to criminal investigating agency by deponent and vehicle in question is parked in police line Mandi H.P. w.e.f. 20.04.2017. There is recital in affidavit that opposite party committed unfair trade practice.
State Commission has carefully perused all annexures filed by complainant.
9. Opposite party filed affidavit of Raju Gupta. There is recital in affidavit that deponent purchased vehicle in question from Baldev Ram resident of Kurukshetra. There is further recital in affidavit that when deponent purchased vehicle in question then registration certificate was given by Baldev Ram to deponent and vehicle in question was registered in the name of Abdul Kadoos S/o Sh.Yaseen R/o Village and Post Office Mehatpur Tehsil and District Una H.P. There is further recital in affidavit that in the month of January-February 2016 deponent lost RC and Insurance of said vehicle and deponent lodged rapat in police station Sunder Nagar Mandi H.P. relating to loss of RC and Insurance of vehicle in question. There is further recital in affidavit that when deponent visited Shimla H.P. he observed that vehicle in question was plied by police official namely Rajender Kumar. There is further recital in affidavit that when deponent 6 Govind Ram Versus Raju Gupta F.A. No.23/2019 inquired from Rajender Kumar that under what circumstances vehicle in question was in possession of Rajender Kumar then Rajender Kumar told that he has purchased the vehicle in question from one Rakesh Kumar scrap dealer at Mandi H.P. State Commission has carefully perused all annexures filed by opposite party.
10. Submission of learned Advocate appearing on behalf of complainant that opposite party has sold stolen vehicle to complainant after receiving consideration amount of Rs.445000/- (Four lacs forty five thousand) and ipso facto committed unfair trade practice under Consumer Protection Act and on this ground appeal filed by appellant be allowed is decided accordingly. It is proved on record that opposite party has sold stolen vehicle to complainant on dated 12.06.2016 vide annexure C-1 and received consideration amount to the tune of Rs.445000/- (Four lacs forty five thousand) from complainant. It is also proved on record that FIR No.322/2016 dated 10.12.2016 under section 420, 467, 468 and 471 read with section 120B of IPC was registered in police station Balh District Mandi H.P. and vehicle in question was impounded by criminal investigating agency. State Commission is of the opinion that sale of stolen vehicle to complainant by opposite party after receiving consideration amount to the tune of Rs.445000/- (Four lacs forty five 7 Govind Ram Versus Raju Gupta F.A. No.23/2019 thousand) ipso facto amounts to unfair trade practice on the party of opposite party. It is well settled laws that vendor is not legally competent to sell stolen vehicle to vendee under laws for consideration amount. It is held that unfair trade practice on the part of opposite party is ipso facto writ large in the present matter.
11. Submission of learned Advocate appearing on behalf of opposite party that opposite party has purchased the vehicle in question from Baldev Ram of Kurukshetra and at the time of purchase of said vehicle RC and Insurance policy was in the name of Abdul Kadur and on this ground appeal filed by complainant be dismissed is decided accordingly. In the present matter opposite party has admitted that at the time of purchase of vehicle in question by opposite party RC and Insurance policy of vehicle in question was in the name of Abdul Kadur. There is no evidence on record that opposite party has purchased vehicle in question from Abdul Kadur who was owner of the vehicle in question. Purchase of vehicle in question from Baldev Ram who was not registered owner of vehicle in question ipso facto amounts to unfair trade practice on the part of opposite party.
12. Submission of learned Advocate appearing on behalf of opposite party that issue of fraud and forgery could not be adjudicated by Consumer Fora in summary manner 8 Govind Ram Versus Raju Gupta F.A. No.23/2019 and on this ground appeal filed by complainant be dismissed is decided accordingly. State Commission is of the opinion that in the present matter two issues are involved i.e. (1) Whether opposite party was legally competent to sell stolen vehicle to complainant after receipt of consideration amount to the tune of Rs.445000/- (Four lacs forty five thousand) from complainant and committed unfair trade practice (2) Whether Consumer Foras are legally competent to adjudicate consumer dispute involving forgery and fraud matters.
13. It is held that Consumer Foras are not legally competent to adjudicate matters involving fraud and forgery in summary manner. It is held that Consumer Foras are legally competent to adjudicate matters relating to unfair trade practice relating to sale of stolen vehicle by opposite party to complainant for consideration amount. It is held that two issues cited supra involved in the present matter are independent issues and are not consolidated issues and are segregated issues from each other. In view of fact that opposite party has admitted in version filed by opposite party that opposite party has purchased vehicle in question from Baldev Ram and in view of the fact that opposite party has admitted in version that at the time of purchase of vehicle by opposite party RC of the vehicle in question was in the name of Abdul Kadur issue of sale of stolen vehicle to complainant by opposite party for 9 Govind Ram Versus Raju Gupta F.A. No.23/2019 consideration amount of Rs.445000/- (Four lacs forty five thousand) falls within concept of unfair trade practice defined under Consumer Protection Act. No reason assigned by the opposite party as to why opposite party has purchased the vehicle in question from Baldev Ram when Baldev Ram was not owner of the vehicle in RC and when owner of the vehicle in question in RC was Abdul Kadur. It is not case of opposite party that opposite party has purchased vehicle in question from registered owner Abdul Kadur. Opposite party did not file affidavit of Abdul Kadur on record in order to prove that owner of the vehicle i.e. Abdul Kadur has sold vehicle in question to opposite party. It is held that two issues involving the present matter cited supra are independent issues in nature.
14. Opposite party has given undertaking in the receipt Annexure C-1 that opposite party would be personally liable for any legal liability accrued qua vehicle in question prior to sale. State Commission is of the opinion that opposite party is under legal obligation to comply its undertaking given to the complainant vide Annexure C-1 placed on record. It is held that it is not expedient in the ends of justice and on the principles of natural justice to allow the opposite party to approbate and reprobate document Annexure C-1 at the same time wherein opposite party took personal liability of any dispute relating to vehicle in question after sale. It is well 10 Govind Ram Versus Raju Gupta F.A. No.23/2019 settled law that party should not be allowed to approbate and reprobate at the same time. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir. In view of above stated facts and case law cited supra order of Learned District Forum/Commission partly warrants interference by State Commission. Point No.1 is decided accordingly. Point No.2: Final Order
15. In view of findings upon point No.1 above appeal filed by complainant is partly allowed and order of Learned District Forum/Commission is partly set aside. It is ordered that opposite party shall pay sale consideration amount of vehicle in question to the tune of Rs.445000/- (Four lacs forty five thousand) to the complainant alongwith interest @ 9% per annum from the date of institution of complaint till actual payment within thirty days from the date of receipt of copy of order because opposite party has sold stolen vehicle to complainant and committed unfair trade practice under Consumer Protection Act.
16. It is further ordered that opposite party shall pay compensation to complainant for mental harassment to the tune of Rs.25000/- (Twenty five thousand). It is further ordered that opposite party shall pay litigation costs to complainant to the tune of Rs.10000/- (Ten thousand). Opposite party will comply order within thirty days from the 11 Govind Ram Versus Raju Gupta F.A. No.23/2019 date of receipt of certified copy of order. It is further ordered that complainant shall transfer RC of vehicle in question and will also execute subrogation deed relating to vehicle in question to rightful owner of vehicle in question within thirty days from the date of receipt of certified copy of order. Document Annexure C-1 given by opposite party to complainant on dated 12.06.2016 relating to sale of vehicle in question shall form part and parcel of order. Complainant is relegated to civil court for adjudication of independent issue of fraud and forgery. Order of Ld. District Forum/Commission is modified accordingly.
17. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to learned District Forum/Commission forthwith for information and file of State Commission be consigned to record room after due completion forthwith. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 30.10.2019 Manoj 12